In Danville Christian Academy v. Beshear, the U.S. Supreme Court allowed a 6th Circuit decision to remain in place, upholding an executive order from Kentucky Governor Andy Beshear (D) to close all K-12 schools, including religious schools, from Nov. 18 to Jan. 4 due to the coronavirus pandemic.
The governor’s “school” order temporarily closed all elementary, middle and high schools but allowed preschools, colleges and universities to continue in-person operations. Issued the same day, a “business” order, Justice Neil Gorsuch wrote in dissent, “permitted virtually all other in-person activities to continue with only capacity restrictions. Movie theaters, indoor wedding venues, bowling alleys, and gaming halls remained open for business.”
Earlier this month, in Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the court ruled 5-4 that New York’s limitation of attendance at religious services to 10 or 25 people while grocery stores, banks, laundromats, etc., could admit as many people as they liked, likely violated the First Amendment.
A religious school and the Kentucky attorney general challenged Beshear’s orders as violating the First Amendment. A federal district court agreed, arguing they discriminated against the free exercise of religion and questioning why people “would be free to attend a lecture, go to work, or attend a concert, but not attend socially distanced chapel in school or pray together in a classroom that is following strict safety procedures and social distancing.”
The 6th Circuit froze the district court order in place, Gorsuch wrote, “considering the School EO in isolation and ignoring the many activities permitted under the Business EO. Looking only to the School EO, the court explained, religious exercises were subject to ‘neutral’ and ‘generally applicable’ rules. After all, the School EO treated religious and secular schools the same.”
The Supreme Court’s brief, unsigned opinion cited “all of the circumstances, especially the timing and the impending expiration of the Order,” as the reasons for denying the request to overturn the 6th Circuit decision. The majority noted that several amici argued that the 6th Circuit should have applied “heightened scrutiny” to the education order because, even if it is neutral toward religion, it implicates the rights of parents to direct the education of their children. According to the court, the challengers failed to “squarely raise” this argument in any court, including the Supreme Court.
Justice Samuel Alito wrote a brief dissent, which Gorsuch joined, stating “no one should misinterpret [the majority opinion in this case] as signifying approval of the 6th Circuit’s decision. As I understand this Court’s order, it is based primarily on timing.”
Gorsuch wrote a slightly longer dissent, which Alito joined. He opined that the 6th Circuit was wrong to not consider the school and business orders together and should have, as amici argued, applied strict (usually fatal) scrutiny to the school order. Timing would not have stopped him from issuing a decision in this case. “The EOs remain in force, the dispute over them remains live, and the decision allowing them to stand is flawed.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor on judicial issues to State Legislatures magazine and the NCSL Blog.
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