Western Michigan University “likely” infringed on the First Amendment rights of 16 Christian student athletes by denying them faith-based exemptions from the school’s COVID-19 shot mandate, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled Thursday, Oct. 7.
The judges refused to grant Western Michigan an emergency stay of U.S. District Judge Paul L. Maloney’s preliminary injunction against the shot mandate for athletes. Senior Judge Ralph B. Guy Jr., Senior Judge David W. McKeague and Judge Chad A. Readler ruled that Western Michigan’s policy requiring COVID shots for its athletes and its denial of religious exemptions created a burden on the students’ free exercise of religion.
“Enforcement of the university’s policy likely would deprive plaintiffs of their First Amendment rights, an irreparable injury,” read the 11-page opinion. “…On balance, plaintiffs’ strong likelihood of success on their free exercise claim carries the day.”
The three-judge panel upheld Judge Maloney’s Sept. 9 preliminary injunction barring enforcement of the vaccine mandate. The injunction followed a temporary restraining order issued Aug. 31 that allowed the athletes to continue competing without complying with the vaccine mandate. Western Michigan asked Judge Maloney to stay his injunction while the university appealed, but he ruled against that motion on Sept. 23. The university then went to the Court of Appeals.
“This is really big,” said David A. Kallman, senior counsel with the Great Lakes Justice Center, which represents the student athletes. “As far as I know this is the first appellate court decision anywhere in the country on an issue like this, where it’s a vaccine mandate for athletes and not giving a religious exemption. The court’s saying, ‘No, you have to accommodate and give a religious exemption.’ This is the first one. It’s awesome. It’s a huge win.”
Four Western Michigan women’s soccer players sued the university on Aug. 30, claiming its denial of religious exemptions to the COVID shot mandate violated their constitutionally protected religious liberty. A dozen more Catholic and Protestant athletes soon joined the suit, representing football, women’s soccer, women’s basketball, men’s baseball, women’s cross country and track, and the dance team. All said the COVID shots run afoul of their religious beliefs, with several citing the inoculations’ ties to cell lines derived from aborted babies.
Western Michigan adopted a policy on Aug. 12 requiring all student athletes be vaccinated against the SARS CoV-2 coronavirus that causes COVID-19. The general population at 20,500-student Western Michigan is not subject to the vaccine mandate. Athletes were told defiance of the mandate would mean they could no longer play intercollegiate athletics. The students each filled out a form requesting a religious exemption, with many including statements of religious conviction. The requests were all denied.
The Court of Appeals said because the Kalamazoo-based university offered to consider medical or religious exemptions on a case-by-case basis, the shot mandate was not generally applicable. Under U.S. Supreme Court precedent, the judges wrote, the policy must be held to “strict scrutiny,” meaning denial of religious exemptions must serve “interests of the highest order” and be “narrowly tailored to achieve those interests.”
While Western Michigan’s interest in fighting COVID-19 is compelling, the university “falters on the narrow tailoring prong,” the judges wrote. Noting that other universities have granted religious exemptions to athletes, the judges said “narrow tailoring is unlikely if the university’s conduct is ‘more severe’ than that of other institutions.”
Because Western Michigan does not require its general student population to be vaccinated against COVID-19, the opinion stated, “one need not be a public health expert to recognize that the likelihood that a student athlete contracts COVID-19 from an unvaccinated non-athlete with whom she lives, studies, works, exercises, socializes or dines may well meet or exceed that of the athlete contracting the virus from a plaintiff who obtains a religious exemption to participate in team activities.”
Kallman said the Court of Appeals ruling means “it’s going to be very hard for them (WMU) to proceed with the case.” Western Michigan attorney Michael S. Bogren could not be reached Friday for comment.
Kallman said the ruling should serve as a warning to other universities. “It means all of the government universities, the public universities, now there’s precedent out there that you better not be denying these athletes their religious exemptions if you’re trying to force the mandate on them,” Kallman said.
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