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  • Writer's pictureRobert Lusk

The COVID-19 Cases Keep Coming

The COVID-19 pandemic served up a national Rorschach test. Many Americans saw COVID related mandates as necessary to preserving public health and welfare. Many others saw them as intolerable interferences with individual liberty. Of course, in the well-established American tradition, both groups resorted to the courts. Two most recent decisions involved a school-related mask mandate and a vaccine requirement imposed by the Air Force.

Michigan’s Court of Appeals addressed the school-related mask mandate in Flynn, et. al. v. Ottawa County Dep’t of Health, Case No. 359774, December 15, 2022. In Flynn, plaintiffs objected to an emergency order issued by the county's health department because it had not been approved by the county’s board of commissioners. The court, interpreting Michigan’s Public Health Code, upheld the mask mandate because it was an emergency order, not a regulation, and, therefore, the board of commissioner’s approval was not required. The court also concluded that since the same issue may arise in the future and was of sufficient public importance the case was not moot, even though the order had expired.

The Sixth Circuit addressed the Air Force’s vaccine mandate in Doster, et. al. v. Kendall, et. al., Case Nos. 22-2497 and 3702, November 29, 2022. The mandate created exceptions for health and religious reasons. However, in practice, the Air Force applied the exceptions differently. Almost every service member who requested a health exception received one. However, of approximately 10,000 service members who requested a religious exemption, only 135 were approved and then only for those who were on the verge of retirement. This discrepancy, the court concluded, likely ran afoul of the Religious Freedom Restoration Act of 1993, which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion” unless the burden “is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.”

The court rejected two significant arguments advanced by the Air Force. First, that courts should abstain from second-guessing military decisions. Second, that Air Force’s interest in preventing service members from contracting COVID was compelling. As to the first argument, the court held abstention was not appropriate in cases where the law was as clear as in this case. As to the second, the court held the difference between the way the Air Force treated the health and religious exemptions demonstrated its restrictive approach to the latter was not the least restrictive means of preventing COVID. Accordingly, the court affirmed a preliminary injunction issued by the trial court preventing the Air Force from imposing discipline against service members who objected to taking the vaccine on religious grounds.


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