Although a trial judge believed the University of Colorado was not obligated to accommodate more than a dozen medical students and staff whose religious beliefs opposed vaccination for COVID-19, the federal appeals court based in Denver appeared less supportive of the school last week.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit heard arguments in the lawsuit brought by 17 unnamed plaintiffs, who allege a pair of vaccination policies for CU’S Anschutz Medical Campus unconstitutionally burdened the free exercise of their religions.

The panel, whose members

were appointed by Republican presidents, each expressed concerns about the scope of the medical school’s vaccination mandate.

“Burdening an individual constitutional right so you can, in the aggregate, reduce the number of people on campus who have potential for COVID — I’m not sure the Constitution contemplates that,” Judge Jerome Holmes said.

At issue in the case are two policies the university enacted in September of last year amid rising coronavirus infections. A directive issued on Sept. 1 allowed medical staff and students to be exempt from COVID-19 vaccination if the teachings of their religion “are opposed to all immunizations.” CU proceeded to deny multiple requests from faculty and students who were opposed to the use of cells derived from aborted fetuses in the development of some COVID-19 vaccines. (The vaccines as produced and administered do not contain aborted fetal cells.)

On Sept. 24, the university replaced the policy with a new protocol for religious exemptions. CU would no longer examine how various religions treat vaccines generally but would instead grant a faithbased exemption unless doing so would “unduly burden the health and safety” of patients or the medical campus more broadly. Only faculty would be allowed to claim religious exemptions, although faculty and students could both request medical exemptions if the COVID-19 vaccine would imperil their health.

Lawyers for the Thomas More Society, which litigates on behalf of religious causes, represented 17 “John Doe” and “Jane Doe” plaintiffs in their challenge to the policies. A federal magistrate judge permitted the staff and students to proceed anonymously, believing that advertising their unvaccinated status “can stigmatize an individual as uncaring for the well-being of others.”

In a pair of orders, U.S. District Court Judge Raymond

Moore refused to grant a preliminary injunction to the plaintiffs that would block enforcement of the vaccination requirement. He initially declined to take action against the Sept. 1 policy because the university had replaced it with the Sept. 24 directive. As to the latter set of rules, Moore was comfortable with the university’s rationale for processing faculty-only religious exemptions to the vaccine.

“Defendants have a compelling interest in ensuring that employees and students associated with Colorado’s preeminent medical campus are vaccinated against COVID-19 — for their patients’ health and safety as well as their own,” he wrote on Jan. 27. “It is simply not the case that a medical campus is required to put patients and others in a health care environment at risk to accommodate these plaintiffs.”

On appeal to the 10th Circuit, the plaintiffs argued the “continued distrust” of their religious beliefs was still at play. Although the school granted accommodations for six employee plaintiffs, 11 other people had been terminated, resigned or had “succumbed to

COVID vaccination.”

Lawyers described how one employee, identified as Jane Doe 11, worked at the Colorado Mental Health Institute at Pueblo, where she and her husband both obtained religious exemptions from the facility. But CU Anschutz denied her religious request, a move that was allegedly nonsensical because she would still be working alongside her unvaccinated husband even if Doe received the vaccine herself.

“When there’s that kind of over-inclusivity, when it’s clear the burden on religion isn’t actually necessary to achieve the government’s interest, that gives rise to an inference of religious animus,” argued lawyer Michael Mchale. “Really, that gives rise to the inference of what’s really going on — that they just have the ‘wrong’ religious beliefs.”

At the same time, the plaintiffs also claimed the vaccination policy was under-inclusive for not requiring booster shots, even though boosters significantly increase protection against the novel coronavirus. Employees who have not received boosters, the plaintiffs contended, pose a similar risk as faith-based objectors, but are treated less severely.

The university responded that its policy was applicable to everyone and did not single out any religious beliefs.

“The policy’s purpose is rationally related to a legitimate governmental interest. In short, the goal is to save lives,” argued Jacquelynn Rich Fredericks with the Colorado Attorney General’s Office.

Senior Judge David Ebel noted the “one clause that gives me pause” was the Sept. 24 policy’s allowance for religious exemptions for faculty, but not for students. Rich Fredericks elaborated that federal civil rights law governing employment discrimination obligates such exemptions for staff only. Further, many students need to complete in-person clinical coursework with vulnerable patients that cannot occur remotely.

“If we found that sentence questionable or unconstitutional, could that be severed from the policy or would that require the entire policy to be stricken?” Ebel asked.

Rich Fredericks believed the rest of the Sept. 24 policy could survive, as the U.S. Supreme

Court has recognized the government’s interest in arresting COVID-19 spread. Holmes interjected CU’S rules would not necessarily be in the clear if the panel agreed there was hostility to religion embedded in the policy.

“That’s a game-changer, right? That alters the analysis of how we go about looking at this because it’s not a facially-neutral policy,” he said.

Judge Allison Eid pressed the university about its practice under the Sept. 1 policy of inquiring whether a person’s religion actually opposed all vaccinations, before eliminating that step with the Sept. 24 revision.

“You looked into the sincerity of the beliefs before the Sept. 24 policy,” she said. “You take the position that it would be fine to inquire into the sincerity of the beliefs. It’s just you’ve chosen not to.”

“The law allows that inquiry,” responded Rich Fredericks.

Mchale countered in his rebuttal that the government cannot presume a person’s religious beliefs are illegitimate, but CU Anschutz had effectively done so with its initial policy.