Supreme Court Allows COVID-19 Closure of Kentucky Religious Schools to Stand

In Danville Christian Academy v. Beshear the U.S. Supreme Court allowed a Sixth Circuit decision to remain in place which upheld Kentucky Governor Andy Beshear’s executive order closing all K-12 schools, including religious schools, from November 18 until January 4 due to the COVID-19 pandemic.

The governor’s “school” executive order temporarily closed all elementary, middle, and high schools but allowed preschools, colleges, and universities to continue to operate in-person. A “businesses” executive order, issued the same day, as described by Justice Gorsuch 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 limits on attending religious services to 10 or 25 people while grocery stores, banks, and laundromats, etc. could admit as many people as the liked, likely violated the First Amendment.

A religious school and the Kentucky attorney general challenged the executive orders as violating the First Amendment. A federal district court agreed they discriminated against the free exercise of religion wondering 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 Sixth Circuit froze the district court order in place, according to Justice Gorsuch, “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 to “all of the circumstances, especially the timing and the impending expiration of the Order” as the reasons for denying the request to overturn the Sixth Circuit decision. The majority noted that several amici argued that the Sixth Circuit should have applied “heightened scrutiny” to the education executive 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 Alito wrote a brief dissent which Justice Gorsuch joined stating “no one should misinterpret [the majority opinion in this case] as signifying approval of the Sixth Circuit’s decision. As I understand this Court’s order, it is based primarily on timing.”

Justice Gorsuch wrote a slightly longer dissent which Justice Alito joined. He opined that the Sixth Circuit was wrong to not consider the education and business executive orders together and should have, as amici argued, applied strict (usually fatal) scrutiny to the education 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.”