Challenge to a public university’s COVID-19 vaccination requirement for student-athletes; The First Amendment’s Free Exercise Clause; Trinity Lutheran Church of Columbia, Inc v Comer; Mechanism for individualized exemptions; Fulton v City of Philadelphia; Strict scrutiny; Request for a stay of a preliminary injunction pending appeal; Crookston v Johnson; Likelihood of success on the merits factor

[This appeal was from the WD-MI.] In an order, the court concluded that defendants-Western Michigan University officials likely violated plaintiffs-student-athletes’ First Amendment right to free exercise by allegedly ignoring or denying their requests for a religious exemption to the University’s COVID-19 vaccination requirement for student-athletes. Thus, the court denied defendants’ request to stay the district court’s preliminary injunction barring them from enforcing the vaccine mandate against plaintiffs. In considering the relevant factors as to whether to grant a stay pending appeal, the court focused on the likelihood that defendants would prevail on the merits on appeal. Thus, it examined the strength of plaintiffs’ free exercise claim. It determined “that the University’s failure to grant religious exemptions to plaintiffs burdened their free exercise rights.” It next considered the level of scrutiny to apply. Because the University retained “discretion to extend exemptions” from the mandate for religious reasons, the policy was “not generally applicable. As a result, the University must prove that its decision not to grant religious exemptions to plaintiffs survives strict scrutiny.” The court concluded that while the University’s interest in fighting COVID-19 was compelling, it faltered “on the narrow tailoring prong.” After considering the other stay factors, it found that “plaintiffs’ strong likelihood of success on their free exercise claim carries the day.” The court noted that its holding was narrow and that other University efforts to combat COVID-19 may be constitutional. “But having announced a system under which student-athletes can seek individualized exemptions, the University must explain why it chose not to grant any to plaintiffs. And it did not fairly do so here.”