On May 7, the 10th Circuit Court of Appeals reversed the district court’s denial of a preliminary injunction for students and employees at the University of Colorado Anschutz who were denied religious exemptions to the university’s COVID-19 vaccination policy.
In April 2021, CU announced a policy requiring all employees and students to receive a COVID-19 vaccine by the fall semester, with some exceptions, according to the opinion in the case of Does 11 v. Board of Regents of University Colorado 19.
Each campus of CU was permitted to adopt its own policy and process. The Does in this case were employed by or enrolled at the university’s Anschutz campus, although some worked off-campus at other locations, according to the opinion. The administration of the Anschutz campus purported to allow “students and employees to attest to their exemption based on religious beliefs” using a simple form, and each of the Does submitted a form.
Soon after, in August 2021, the administration began enforcing a new policy, which went into effect on Sept. 1, 2021, that declared “[a] religious exemption may be submitted based on a person’s religious belief whose teachings are opposed to all immunizations.” The administration also made clear it would “only accept requests for religious exemption that cite to the official doctrine of an organized religion … as announced by the leaders of that religion,” according to the opinion.
With the new policy, the administration required the applicant to “explain why [their] sincerely held religious belief, practice or observance prevents [them] from getting the vaccination,” and to provide “a detailed response,” according to the opinion. The opinion noted some applicants provided pages of detailed justification for their religious beliefs.
Peter Breen, executive vice president and head of litigation at the Thomas More Society, was one of the lawyers representing the Does in the case. He gave Law Week an example of one of the justifications.
“So Jane Doe 1… writes a multi-page exemption request. She has a Master’s Degree in Catholic bioethics, she was a faithful Catholic,” said Breen. “And the Bishops of Colorado actually published an exemption form for Catholics who wanted to seek exemption from their employers. The university denied it and said, ‘it wasn’t sincere, because the Pope has spoken out in favor of the vaccine.’”
The other Does were met with the same decision, as the administration rejected any application for a religious exemption unless an applicant could convince them their religion teaches them “and all other adherents that immunizations are forbidden under all circumstances,” according to the opinion.
Breen said the case was filed in October 2021, soon after the second policy. He told Law Week how the Thomas More Society got involved in the case.
“The way that the University of Colorado crafted the policy was so offensive, and impacted so many people, that we had multiple people reach out to us who were students and staff,” said Breen. “And the students especially are in a really bad spot, because employees at least have Title VII under federal law, but the students don’t have that protection.”
But before the case was filed, Breen said they sent out multiple demand letters on behalf of different clients.
“In response to those demand letters, they didn’t stop going after people, but clearly their lawyers took a look at it and tried to craft a policy that would allow them to do the exact same thing,” said Breen. “Deny all of the religious exemptions, essentially, but they were presumably hoping that would get past the federal district court.”
That policy went into effect on Sept. 24, 2021. According to the opinion, under the Sept. 24 policy, “[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 other Individuals, patients, or the campus community.”
The opinion added the administration didn’t reconsider any of the Does’ applications for religious exemptions until December 2021. When the administration did, it scrutinized each application to determine whether “the request [wa]s made based on a sincerely-held religious belief,” or whether it was based on beliefs the administration deemed “personal” in nature, according to the opinion.
The case went ahead to district court, where the board of regents succeeded in defending the policy. The district court denied the Does a preliminary injunction against the administration’s policies.
But the 10th Circuit reversed the decision. Judge Allison Eid wrote the majority opinion, which held, among other things, that a government policy may not grant exemptions for some religions but not others, that the government may not use its views about the legitimacy of a religious belief as a proxy for whether such belief is sincerely held, that the government may not grant secular exemptions on more favorable terms than religious exemptions and that the policies at issue in this appeal were motivated by religious animus.
Breen told Law Week his team was very pleased with the decision, and he hopes it leads to full relief for their clients.
“The 10th Circuit saw through [the policy] and in an exceptionally clear, well-reasoned decision, discussed exactly why,” said Breen. “It was flagrantly unconstitutional, both the initial policy and the follow-up policy, and held it was a violation of clearly established constitutional laws.”
Breen said he believed this was the first time a court of appeals held that giving a medical exemption on one set of grounds, but only allowing a religious exemption on a different set of grounds is unconstitutional.
“That was what we argued, but I don’t know that a federal court of appeals had decided that until now,” said Breen. “And you saw that a lot, with a lot of these cases, with vaccine mandate issues, where they would be very generous with medical exemptions, but then they would just drop the hammer on those with religious exemption requests.”
Breen added that he hoped the decision was one that would be cited by other courts.
“We believe the Supreme Court has set clear tests in this area,” said Breen. “And so what the 10th Circuit did was really cut through all of the various policy and balancing, and restated basic principles of First Amendment law on free exercise of religion, and on establishment clause too, and then just apply them to the facts at hand.”
The Colorado Office of the Attorney General, which represented the board of regents in this case, declined to comment.