Jane Does 1-11 and John Does 1, 3-7 sued the Board of Regents of the University of Colorado and various university officials in the United States District Court for the District of Colorado, raising claims under the First Amendment’s Free Exercise and Establishment Clauses. The district court denied the plaintiffs’ motions for preliminary injunctions, and the plaintiffs appealed to the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit reversed finding for the Does.
Factual Overview
The University of Colorado announced in April 2021 that all employees and students would be required to receive a COVID-19 vaccine by the fall semester, with some exceptions. The Anschutz Campus administration adopted a policy on September 1, 2021, stating that a religious exemption may be granted based on a person’s religious belief whose teachings are opposed to all immunizations. The administration rejected exemption applications from individuals whose religions did not have formal teachings against all immunizations.
On September 24, 2021, the administration announced a new policy stating that a religious accommodation may be granted based on an employee’s religious beliefs but will not be granted if the accommodation would unduly burden the health and safety of others. The policy did not provide any religious exemption or accommodation to students.
The plaintiffs, who are employees and students at the Anschutz Campus, filed suit seeking preliminary injunctions against both policies. The district court denied the motions, and the plaintiffs appealed.
Legal Analysis
Standing and Mootness
The Tenth Circuit held that at least one plaintiff had standing to seek a preliminary injunction regarding each policy at the time of the amended complaint. The court also found that the appeal was not moot as to the policies concerning employees but was moot as it concerned the administration’s policies for students.
September 1 Policy
The court held that the September 1 Policy violated the Free Exercise Clause because it discriminated on its face against certain religions due to stereotypes and religious animus. The policy also violated the Establishment Clause because it required an intrusive inquiry into the plaintiffs’ religious beliefs. The court found that the policy was neither neutral nor generally applicable and did not satisfy strict scrutiny.
September 24 Policy
The majority held that the September 24 Policy was not neutral because it was motivated by the same religious animus present in the September 1 Policy. The policy was also not generally applicable because it granted secular exemptions on more favorable terms than religious exemptions. The court applied strict scrutiny and found that the policy did not satisfy this standard.
Dissenting Opinion
Judge Ebel concurred in part and dissented in part. He agreed that the September 1 Policy should be preliminarily enjoined but disagreed with the majority’s reasoning. Judge Ebel found no evidence that the university adopted either mandate out of animus toward religion. He also argued that the university’s inquiries into the sincerity of the plaintiffs’ religious beliefs did not infringe any First Amendment protection. Regarding the September 24 Policy, Judge Ebel concluded that the plaintiffs had not shown a substantial likelihood of success on their First Amendment challenges and would not enjoin the second mandate.
The Tenth Circuit reversed the district court’s denial of the plaintiffs’ motion for a preliminary injunction, holding that the district court abused its discretion in failing to enjoin both the September 1 and September 24 Policies.
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