Waiver of As-Applied Free Exercise Claims in Successive Appeals: Lukaszczyk v. Cook County

Introduction

In Barbara Lukaszczyk et al. v. Cook County, Illinois, the Seventh Circuit addressed whether healthcare workers at Cook County hospitals could pursue a claim under the Free Exercise Clause of the First Amendment against a countywide COVID-19 vaccine mandate. The plaintiffs, employees and contractors of Cook County Health, had obtained religious exemptions only to be transferred to unpaid status and given no realistic remote work options. After two rounds of district‐court proceedings and one prior appeal, they sought to challenge the policy both on its face and as applied. The Seventh Circuit had to decide whether the plaintiffs had waived their as-applied challenge by focusing solely on a facial invalidation of the policy, and whether leave to amend to add an Illinois Religious Freedom Restoration Act (RFRA) claim should have been granted.

Summary of the Judgment

On May 19, 2025, the Seventh Circuit affirmed the district court’s dismissal of the plaintiffs’ Free Exercise claim. The court held:

Waiver of As-Applied Challenge: Plaintiffs had repeatedly asserted only a facial challenge—both in the district court and in their opening appellate brief—and never developed an as-applied argument until their reply brief and oral argument. Under settled waiver rules, that belated argument was forfeited.
No Facial Challenge Remaining: Plaintiffs conceded they were no longer pursuing a facial challenge or injunctive relief.
Amendment to Add Illinois RFRA Claim: The court found no abuse of discretion in denying leave to file a third amended complaint to add an Illinois RFRA count. The plaintiffs had failed to press that request once the district court’s Rule 12(b)(6) decision was issued, despite having been told they could renew the motion.

The court further criticized the plaintiffs’ deficient appellate advocacy and, while declining to impose sanctions, published a scathing reminder of appellate‐brief standards.

Analysis

Precedents Cited

Greenlaw v. United States, 554 U.S. 237 (2008): Emphasized the adversarial system’s reliance on parties to frame issues.
Olano, 507 U.S. 725 (1993): Defined waiver as the intentional relinquishment of a known right.
Bradley v. Village of University Park, 59 F.4th 887 (7th Cir. 2023): Articulated how failure to raise an issue in the district court or opening brief constitutes waiver.
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010): Clarified that the facial/as-applied distinction affects the remedy’s scope rather than pleading requirements.
Bucklew v. Precythe, 139 S. Ct. 1112 (2019): Defined a facial challenge as one to “all its applications.”

These precedents collectively underpinned the court’s holding that the party‐presentation principle requires litigants to press all variants of their legal theory in the district court and opening brief, or risk forfeiture.

Legal Reasoning

The court’s reasoning unfolded in three main steps:

Distinguishing Facial vs. As-Applied Challenges:
A facial challenge contests a law’s validity in all contexts and typically seeks injunctive relief, while an as-applied challenge targets specific applications and often seeks damages or narrower relief. Although they can overlap, a litigant must make clear which theory is being pursued at each stage.
Application of Waiver Doctrine:
The plaintiffs repeatedly characterized their claim as facial only. They did not raise an as-applied argument in district court filings post-remand, nor in their opening appellate brief. Under Bradley and Olano, this omission equated to waiver.
Discretionary Denial of Further Amendment:
The district court had invited plaintiffs to renew a motion to add the Illinois RFRA claim after the 12(b)(6) ruling. Plaintiffs neglected to do so in the joint status report or pleadings. The Seventh Circuit concluded no reasonable jurist would fault that refusal to extend leave.

Impact

This decision reinforces several critical points for future litigants in First Amendment and other constitutional contexts:

Strict Adherence to Issue‐Presentation Rules: Parties must articulate both facial and as-applied claims early and consistently, or face forfeiture.
Clarity in Pleadings and Briefs: Vague or contradictory characterizations of the relief sought will not preserve alternate statutory or constitutional theories.
Judicial Economy: Courts are empowered to curtail successive amendments when parties sit on their rights after court invitations.

In the evolving COVID-19 vaccine–mandate litigation landscape, the decision signals that litigants cannot reserve an as-applied attack as an appellate afterthought once they elected a facial challenge in the lower court.

Complex Concepts Simplified

Facial Challenge: An attack on a law or policy as unconstitutional in every possible application. It typically seeks to strike the law down outright.
As-Applied Challenge: An attack on how the law or policy operates in a specific context or against particular individuals. It usually seeks damages or narrowly tailored relief.
Waiver: When a party knowingly gives up a right or fails to assert an argument at the proper time, it cannot later resurrect that argument on appeal.
Leave to Amend: A court’s permission for a party to alter its pleadings. Under Fed. R. Civ. P. 15, leave should be freely given, but courts may deny it for delay, prejudice, or futility.

Conclusion

Lukaszczyk v. Cook County crystallizes the mandate that litigants pressing Free Exercise (and other constitutional) challenges must decisively present all variants of their theory in the district court and in their opening appellate brief. By waiving their as-applied claim and abandoning federal challenges on appeal, the plaintiffs lost their only First Amendment avenue. The court’s published rebuke of their briefing and oral argument further underscores the imperative of clear, focused advocacy. This ruling will steer future litigants to frame both facial and as-applied challenges from day one or risk complete procedural foreclosure.