In Jane Does 1-11 v. Board of Regents of the University of Colorado, (10th Cir., May 7, 2024), the U.S. 10th Circuit Court of Appeals held that the policies for granting or denying a religious exemption from the Covid vaccine mandate on one of the campuses of the University of Colorado violated the 1st Amendment's Free Exercise and Establishment Clauses. As explained by the court:
The September 1 Policy declared that “[a] religious exemption may be submitted based on a person’s religious belief whose teachings are opposed to all immunizations.” ... The Administration made clear that 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.” ....
... Therefore, as the Administration explained to Anschutz students and employees, Christian Scientists and Jehovah’s Witnesses would qualify for an exemption under the Administration’s criteria. However, the Administration would reject an application for an exemption if it deemed the applicant’s beliefs “personal,” not “religious,” or “not part of a comprehensive system of beliefs.”... For example, the Administration decided that “it is ‘morally acceptable’ for Roman Catholics to take vaccines against COVID-19,” and that any Roman Catholic objections to the COVID-19 vaccine are “personal beliefs,” not “religious beliefs.” ... For similar reasons, the Administration refused to approve exemptions for Buddhist applicants. Nor would the Administration approve exemptions for applicants who were members of the Eastern Orthodox Church. The Administration also rejected exemption applications from Evangelical Christians, non-denominational Protestants, and applicants who did not specify whether they were affiliated with a particular religious organization....
The University adopted a modified policy on September 24 in the face of litigation, but, according to the majority, it was a mere pretext to continue its September 1 policy. The majority found that both policies were unconstitutional, summarizing its holding in part as follows:
We hold that a government policy may not grant exemptions for some religions, but not others, because of differences in their religious doctrines, which the Administration’s first policy did. We further hold 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, which the Administration did in implementing the first policy. Nor may the government grant secular exemptions on more favorable terms than religious exemptions, which the Administration’s second policy does. Finally, we hold that the policies at issue in this appeal were motivated by religious animus, and are therefore subject to strict scrutiny—which neither policy survives. The district court concluded otherwise and, in so doing, abused its discretion.....
Judge Ebel filed a partial dissent, saying in part:
I agree the September 1 mandate should be enjoined preliminarily, although for reasons different from those relied upon by the majority. However, I would not enjoin the September 24 mandate....
... I see no evidence indicating that the University adopted either mandate out of an animus—that is, a hostility—toward religion generally or toward some religions in particular. Second, Plaintiffs have not shown that the two inquiries the University posed to those applying for a religious exemption under the September 1 mandate infringed any First Amendment protection. The University was entitled to ask applicants why they opposed being vaccinated in order to determine whether that opposition was based on religious beliefs and, if so, whether those religious beliefs were sincerely held and, if so, how those beliefs could be accommodated.
Thomas More Society issued a press release announcing the decision.
