January 24, 2022

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Justice Department Files Statement of Interest in Michigan Religious Schools’ Challenge to COVID-19 Closing Order

14 min read
<div>The Justice Department today filed a statement of interest in federal district court in Kalamazoo, Michigan, arguing that the Free Exercise Clause of the Constitution requires the state of Michigan to justify why it cannot provide exemptions to its school closing order for in-person instruction at religious high schools when it provides exemptions for trade and technical instruction in person, college sports teams, and other educational activities.</div>

Constitution Requires State to Justify Why Exemptions for Trade and Technical Instruction and College Sports Cannot Be Extended to Religious Instruction

The Justice Department today filed a statement of interest in federal district court in Kalamazoo, Michigan, arguing that the Free Exercise Clause of the Constitution requires the state of Michigan to justify why it cannot provide exemptions to its school closing order for in-person instruction at religious high schools when it provides exemptions for trade and technical instruction in person, college sports teams, and other educational activities.

The plaintiff religious schools have implemented rigorous protocols to reduce the risk of COVID-19 transmission, including requiring masks and distancing, schedule changes to reduce movement, an outdoor tent cafeteria at one school, thermal screening kiosks, and others.   

“The education of children is a matter of faith to many people, and the Free Exercise Clause of First Amendment to the United States Constitution protects religious education. The Free Exercise Clause does not protect nonreligious activities such as trade and technical classes and college sports,” said Eric Dreiband, Assistant Attorney General for the Civil Rights Division. “For more than two centuries, Americans have fought and died for the right of our people to worship and pray according to their conscience and faith. These noble patriots did not fight and die to protect the nonexistent authority of government to discriminate against the exercise of religion by people of faith. Discrimination against the right of the people to practice their religion violates everything this country stands for.”

The case was filed on Dec. 7, 2020, by three Catholic high schools, parents of students, and a Michigan association of religious schools challenging an order issued the same day by the Michigan Department of Health and Human Services ordering public and nonpublic high schools throughout the state closed. The plaintiffs allege that the schools have a sincerely held religious belief that the diverse religious aspects of a Catholic education must be conducted in person, including daily Mass, Eucharistic adoration, communal prayer throughout the school day, and spiritual formation with their teachers, among others. The Michigan order, however, requires all high schools to close, including religious high schools, while granting exceptions for trade and technical education, boarding schools, English Language Learner instruction, special education, and even college sports. 

The United States’ brief explains that Michigan’s order “exempts a range of educational activities that the state deems important enough to be held in person notwithstanding the health risks, but has failed to exempt religious educational activities which the plaintiffs likewise sincerely believe must be held in person.” Such differential treatment of religious reasons for in‑person learning and various secular reasons for in-person learning and activities must be justified by a compelling government interest carried out through the least restrictive means. This, the brief maintains, the state has failed to do here.

Since Attorney General William P. Barr announced an initiative on April 27, 2020 to review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic, the Civil Rights Division has filed numerous briefs and statements of interest concerning protections under the Constitution and the Bill of Rights.

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