In a fiery opinion on Tuesday, the federal appeals court based in Denver tore into a pair of COVID-19 vaccination policies the University of Colorado imposed on medical staff in late 2021, concluding they discriminated against certain religions and affected plaintiffs were consequently entitled to exemptions.

By 2-1, the all-Republican panel of the U.S. Court of Appeals for the 10th Circuit directed unusually sharp barbs at each other and at the trial judge who initially declined to block the university’s mandates. Judge Allison H. Eid, writing for the majority, believed the policies governing religious exemptions at the CU Anschutz Medical Campus were “permeated with animus.”

CU “has not even attempted to explain why its interest is served by granting exemptions to practitioners of some religions, but not others. No one contends that Christian Scientists are any less likely to contract or to spread COVID-19 than Buddhists or Roman Catholics or Orthodox Christians,” wrote Eid, an appointee of Donald Trump. “But because (plaintiffs) were the wrong religions, their exemptions were denied.”

Senior Judge David M. Ebel, a Ronald Reagan appointee, agreed that the Anschutz campus’ initial policy, requiring employees seeking religious exemptions to show their faiths opposed all immunizations, was likely unconstitutional. But he disagreed that the revised policy was problematic and he criticized the majority for accusing CU of discriminatory intent.

“I believe it is imprudent, and beyond the current record, for our court,” Ebel warned, “to make emphatic and unsupported findings of animus when it is quite possible that the University was just trying to draft a narrow policy addressing a very specific risk in order to keep its patients and staff free from a preventable COVID risk at a time of great urgency and uncertainty when COVID was killing so many people receiving medical care.”

‘Compelling interest’ in vaccinations

The decision comes more than 1.5 years after oral arguments and 2.5 years after CU first issued its vaccine mandates. Although the 10th Circuit acknowledged all of the student plaintiffs and some of the employees were no longer in a position to benefit from an injunction against the policies, the panel noted at least one plaintiff would be affected by its decision.

In the underlying case, CU issued a Sept. 1, 2021 directive allowing 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 those who were opposed to the use of cells derived from aborted fetuses in the development of some COVID-19 vaccines.

On Sept. 24, the university replaced the policy with a new staff-only protocol for religious exemptions. CU would no longer examine how various religions treat vaccines generally but would instead grant a faith-based exemption unless doing so would “unduly burden the health and safety” of patients or the medical campus more broadly.

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 them to proceed anonymously, believing at the time that broadcasting someone’s unvaccinated status “can stigmatize an individual as uncaring for the well-being of others.”

U.S. District Court Senior Judge Raymond P. Moore refused to grant a preliminary injunction, initially declining to take action against the Sept. 1 policy because the university had replaced it with the Sept. 24 directive.

As for the Sept. 24 policy, CU has “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 in January 2022. “It is simply not the case that a medical campus is required to put patients and others in a healthcare environment at risk to accommodate these plaintiffs.”

Hostility to religion

The 10th Circuit concluded some plaintiffs could only seek monetary damages from the university for being placed on leave or terminated when they did not comply with the mandate. But the appellate panel agreed the request to block the 2021 policies and grant the medical exemptions going forward was not moot because the Anschutz campus had never reevaluated the status of certain staff members after the initial denials.

Eid, in the May 7 majority opinion, blasted Moore for not finding the policies violated the First Amendment.

“The Does are highly likely to succeed on the merits, because the September 1 Policy discriminates on its face and in fact against certain religions due to stereotypes and religious animus,” she wrote for herself and Chief Judge Jerome A. Holmes, a George W. Bush appointee.

Specifically, Eid believed the policy “passes judgment upon and presupposes the illegitimacy of certain religious beliefs” and “involves an intrusive inquiry” into the plaintiffs’ faiths.

She further found the Sept. 24 policy as problematic as the “hostile and discriminatory September 1 Policy.”

Ebel, in contrast, emphasized the vaccination policies were issued at a time when COVID-19 infections were on the rise. The fact that CU provided a religions exemption “suggests solicitude, not animus, toward religious believers,” he argued.

He acknowledged the Sept. 1 policy alone was likely unconstitutional because it favored employees whose faiths opposed all vaccinations versus those whose faiths did not. Ebel did not believe it was improper for the university to inquire about the basis for requesting an exemption, but labeled CU’s specific approach “misguided.”

Otherwise, Ebel objected to Eid’s characterization of CU’s actions as being motivated by religious discrimination, rather than simply amounting to differential treatment.

“Neither Plaintiffs nor the majority have identified any evidence that the University acted with actual hostility toward some religions, or religion generally,” he wrote. “Every indication is that the University adopted the mandate, instead, to protect the health and safety of its staff, students, and patients during the ongoing global pandemic.”

Eid shot back that Ebel had a “grave misunderstanding of the context of this case” and defended her description of CU as acting with discriminatory motives.

When the facts show “no conclusion other than religious animus, we must say so,” she wrote.

A spokesperson for the Anschutz campus declined to comment on the decision, but noted the university lifted its vaccine mandate last summer. Lawyers for the plaintiffs did not immediately respond to an email.

The case is Doe et al. v. Board of Regents et al.