Sixth Circuit Vacates Decision Upholding Michigan Mask Mandate

This summer a Sixth Circuit panel of three judges upheld an order from the Michigan Department of Health and Human Services (MDHSS) requiring elementary students to wear masks while attending a parochial school. The Sixth Circuit’s decision upheld MDHSS’ order over objections based on mootness (because the order had expired), free exercise of religion, equal protection, and substantive due process. Subsequently, the school and parents applied for rehearing en banc (i.e., before every judge on the court). On November 10, 2021, the Sixth Circuit granted the motion and vacated its earlier decision. This means that, for now, the Sixth Circuit’s decision in Resurrection School, et al., v. Hertel, et al., 11 F4th 437 (6th Cir. 2021) is no longer binding on lower courts in the Sixth Circuit. We await the court’s new decision.