Cases & Developments

Opinion reversing denial of preliminary injunction. Plaintiffs, current and former employees and students at the University of Colorado Anschutz Medical Campus whose religious exemptions from the University’s COVID-19 vaccination policy were denied in-part, brought a Free Exercise challenge. The initial policy limited religious exemptions to those opposing “all” immunizations but was revised within three weeks to accord any religious belief. The district court denied two preliminary injunctions, finding the first challenge to the repealed policy moot, and the second unlikely to succeed on the merits. In denying the latter, the court found that under the amended policy (1) different personnel reviewed exemptions, (2) religious beliefs were accepted unquestioningly as sincere, and (3) individualized duties-focused review yielded remote or isolated on-campus work exemptions for multiple plaintiffs, while undue hardship was sustained for students and employees with patient-care duties. On consolidated appeal, a divided Tenth Circuit panel reversed in favor of employee plaintiffs after making novel appellate factual findings and applying strict scrutiny to the rescinded policy. It found that since officials asked “why” rather than “whether” plaintiffs sought religious exemption under the first policy that neither policy was “considered with the neutrality that the Free Exercise Clause requires” (citing Masterpiece Cakeshop v. Colorado) and bare violation of Free Exercise can demonstrate animus even absent actual hostility. The Circuit also found while not an express basis of appeal, plaintiffs were likely to succeed in showing that the initial policy impermissibly involved the University in evaluating religious doctrine under the Establishment Clause. Finally, it found the first appeal of the original policy, and all student claims under both policies moot.