University COVID-19 vaccine mandate violates US Constitution

The 1 September 2021 mandate “clearly violates the Establishment Clause and the Free Exercise Clause as interpreted by our precedent,” a majority of a U.S. Court of Appeals for the 10th Circuit said in the decision of 7 May.
While the mandate was later updated, the newer version also violates the Constitution, the judges said.
The University of Colorado Anschutz Medical Campus in 2021 required COVID-19 vaccination of all students and employees. It initially offered religious exemptions to anyone who checked a box, but later said administrators “would only recognise religious exemptions based on religious beliefs whose teachings are opposed to all immunisations.”
Officials said, for example, that Christian Scientists would qualify for an exemption, but Buddhists would not.
They also said that exemptions would only be granted to individuals who had never received any vaccinations.
Medical exemptions, by contrast, were available if a doctor said that the potential recipient’s health or life would be at risk.
Seventeen students and employees, all of whose applications were denied, sued over the policy, alleging that it was discriminatory.
U.S. District Judge Raymond Moore, an appointee of former President Barack Obama, ruled in 2022 that the plaintiffs had not shown they would suffer irreparable harm without a stay of the original mandate, and that they had not met the burden of showing that the updated mandate was not neutral.
The case against the 1 September mandate was also moot, the judge said, because the requirements had been updated.
That ruling was wrong, according to the appeals court, in part because the original mandate was used to fire two employee plaintiffs, and Judge Moore placed the burden regarding discrimination on the plaintiffs.
Under the 1 September policy, “Anschutz administrators rejected applicants’ beliefs based not on their sincerity, but rather on their perceived validity,” according to the new decision. Even after receiving several pages of explanations of religious belief, every application was denied. Administrators rejected one application because officials claimed it was “morally acceptable” for Catholics to receive COVID-19 vaccines, judging any other position as personal objections as opposed to religious ones.
The policy was “explicitly non-neutral,” as the First Amendment, according to a ruling in a separate case, does not allow governments to “discriminate in favour of some religions and against others,” the majority said.
Policies that violate constitutional rights can survive under “strict scrutiny” if officials can prove they are justified by a “compelling state interest” and were “narrowly tailored to pursue that interest.” Anschutz said it was motivated by a desire to curb the spread of COVID-19, but “has not even attempted to explain why its interest is served by granting exemptions to practitioners of some religions but not others,” according to the panel.
The 24 September 2021 policy was an alleged update said to assess whether requests for religious exemption were “made based on a sincerely held religious belief,” but evaluations conducted under that policy reached the same results, indicating that the updated version “was merely a pretext for continuing the administration’s 1 September policy,” the majority said. It said the updated version also failed the strict scrutiny test because it has a lower bar for medical exemptions than for religious exemptions.
U.S. Circuit Judge Allison Eid, an appointee of former President Donald Trump, authored the opinion. She was joined by Circuit Judge Jerome Holmes, who was appointed by former President George W. Bush.
Circuit Judge David Ebel, an appointee of former President Ronald Reagan, said in a partial concurrence and dissent that he agreed the 1 September policy likely violated the First Amendment, but that the 24 September version resolved the constitutional problems.
“The 24 September mandate is neutral toward religion and generally applicable,” he said.
Defendants in the case included the University of Colorado’s Board of Regents and officials at the University of Colorado Anschutz School of Medicine.
The Board and the school did not respond to requests for comment.
The appeal is brought by the Thomas More Society on behalf of the students and employees.
“The University of Colorado ran roughshod over staff and believing students during COVID, and the appeals court has now clearly declared what we have been fighting to establish for nearly three years: the University acted with ‘religious animus’ and openly violated the fundamental religious freedoms of these courageous healthcare providers and students,” said Peter Breen, executive president of the society, in a statement.
“The appeals court correctly ruled,” he added later, “that no government entity has the right to appoint itself as a doctrinal court that defines which religious beliefs count as deeply and sincerely held and deems those religious beliefs valid or invalid.”