US appeals court rejects CU’s vaccine mandate, cites ‘religious animus’

DENVER (KDVR) — A U.S. Court of Appeals ruled on May 7 that the University of Colorado Anschutz School of Medicine‘s COVID-19 vaccination mandate and refusal to include a religious exemption were unconstitutional under the First Amendment, according to court documents.

According to the opinion written by 10th Circuit Court of Appeals Judge Allison Eid, “A government employer may not punish some employees, but not others, for the same activity, due only to differences in the employee’s religious beliefs.”

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The case stems from April 2021, when the University of Colorado announced all employees and students would be required to receive a COVID-19 vaccine by the fall semester, although with a few exemptions. According to the appeals court’s statement of facts, the university did not issue a universal policy, instead allowing each campus to adopt its own policies.

The Thomas More Society represented 17 faculty and student “Jane and John Does” in the appeals case, all of whom “asserted that the university refused to accommodate the sincerely and deeply held religious objections that prevented them from taking the vaccine.”

Originally, the case was filed for a Catholic doctor and a Buddhist student, according to Thomas More Society. In October 2021, over a dozen additional staff and students were added to the lawsuit. The group is seeking injunctive relief, damages and attorney’s fees against CU for its unlawful discrimination and violations of fundamental constitutional rights.

Read the whole 10th Circuit Court of Appeals opinion

New CU vaccine policy was enforced on Sept. 1, 2021

According to the appeal ruling, CU administration enforced a new policy on Sept. 1, 2021, that said “[a] religious exemption may be submitted based on a person’s religious belief whose teachings are opposed to all immunizations.”

Before an exemption would be granted, the administration wanted an applicant to answer why their “sincerely held religious belief, practice of observance prevents them” from getting vaccinated, in addition to whether each applicant “had an influenza or other vaccine in the past.” According to the appeals court ruling, applicants were also asked, “How does this differ?”

The Thomas More Society argued that despite the allowed exemptions, campus administration “rejected any application for a religious exemption unless an applicant could convince the Administration that her religion ‘teaches (them) and all other adherents that immunizations are forbidden under all circumstances,'” according to the court documents.

According to the appeals court’s statement of facts, as a result, administrators refused vaccine exemption approvals for Roman Catholic applicants, in addition to Buddhist, Eastern Orthodox, Evangelical Christians, non-denominational Protestants and applicants who did not specify a particular religious affiliation.

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Ultimately, the lawsuit says that the policy and how it was handled ended with some employees being placed on unpaid administrative leave before they were fired for “failure to comply” with the “mandatory vaccine requirement.” CU administration also allegedly denied several unnamed individuals exemptions or accommodations and required others to work remotely, while cutting one of those remote workers’ pay by 10%, per the appeals court ruling.

Courts opine: Sept. 24, 2021, mandate wouldn’t have stood

The school introduced a second policy effective Sept. 24, 2021, which the appeals court opinion said came after receiving threats of litigation. The policy stated that “[a] religious accommodation may be granted based on an employee’s religious beliefs,” but “will not be granted if the accommodation would unduly burden the health and safety of other Individuals, patients, or the campus community.”

Judge Eid stated that she differs from the majority opinion and does not think the plaintiffs would have prevailed on their First Amendment challenge to the Sept. 24, 2021, mandate.

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Eid noted that the Sept. 24 mandate’s basic requirements were the same as the Sept. 1 mandate but revised the religious and medical exemptions. The Sept. 24 mandate stated:

The university said religious exemptions would be approved if the requesting employee’s “duties can be modified to prevent any in-person interaction with the campus community or if the employee’s job duties can be performed 100% remotely.”

Because of this, Eid said the second mandate eliminated the constitutional issues established in the first mandate.

“And when there is no plausible explanation for religious discrimination other than animus, it is subject to strict scrutiny, regardless of whether the government employer admits that its actions were motivated by hostility to certain religions.”

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According to the appeals decision, the court found that 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.'”

“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.  Accordingly, we reverse,” said Eid.

As a result, the court wrote that the CU administration would not approve exemptions under the Sept. 1 policy for Roman Catholics, Buddhists and many more prominent religions.

FOX31 has contacted the University of Colorado for comment about the lawsuit.

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