The Supreme Court on Thursday turned down a request from a Christian school in Kentucky and the state’s attorney general to allow in-person classes at faith-based schools, stressing that most schools in Kentucky will close for the winter holidays on Friday, Dec. 18, and are slated to reopen on Jan. 4. The justices left open the possibility that the school could return to seek relief again if the state’s governor issues a new school-closing order after the holidays. Justices Samuel Alito and Neil Gorsuch dissented from the four-paragraph ruling.
The request came from Danville Christian Academy, a private K-12 school near Lexington, and Kentucky Attorney General Daniel Cameron, a Republican. They challenged a Nov. 18 order in which the state’s Democratic governor, Andy Beshear, amid a surge in COVID-19 cases in Kentucky, banned in-person classes through the end of the calendar year at all “public and private elementary, middle, and high schools in the state.” Later the same day, Beshear issued a second order that allowed other in-person activities, such as theaters, bowling alleys and wedding venues, to stay open, subject to limits on attendance and capacity.
Danville Christian and Cameron argued that the Nov. 18 order violates the Constitution’s free exercise clause, and a federal district court barred the state from enforcing the closure with respect to private religious schools that are following social distancing and hygiene guidelines. But the U.S. Court of Appeals for the 6th Circuit reversed that decision, holding that Danville Christian and Cameron were not likely to win in the end because Beshear’s order is neutral and applies to all of the schools – both secular and religious – in Kentucky.
Danville Christian and Cameron went to the Supreme Court on Nov. 30, telling the justices that the 6th Circuit should have considered the more favorable treatment that the second order gives to secular in-person gatherings, even though those gatherings “create a risk of significant outbreaks.”
Beshear urged the court to leave the order in place. He agreed that “the Constitution must remain vital in times of crisis” – a key point in the court’s Nov. 25 ruling striking down New York’s attendance limits for religious gatherings. But, he stressed, Kentucky is currently experiencing a “deadly third wave” in the pandemic, and Danville Christian and Cameron had not presented any “expert testimony, scientific studies, or public health testimony” to support their contention that the public health risks from in-person schools is comparable to those posed by the activities covered by the second order issued on Nov. 18. “With respect,” Beshear wrote, “nobody — not an election official, not a public health expert, and not a court — should make life-or-death public policy decisions on the basis of such purely anecdotal, unscientific, and faulty reasoning about the spread of COVID-19.”
In an unsigned decision issued 13 days after Beshear’s response and nine days after Danville Christian filed its reply brief, the justices denied Danville Christian’s request. They observed that Beshear’s order “effectively expires this week or shortly thereafter, and there is no indication that it will be renewed.” Moreover, they noted, in addition to the school’s argument that the order discriminates against religion by treating secular businesses more favorably than schools, several “friend of the court” briefs supporting the school also contended that the order should tossed out because it curtails parents’ rights to control the education of their children. But Danville Christian and Cameron did not properly raise that argument themselves, the justices wrote. “Under all of the circumstances, especially the timing and the impending expiration of the Order,” they concluded, the request to allow in-person classes at Danville Christian would be denied. However, they continued, if Beshear issues a new order, the school or others could return to court to seek to have those restrictions lifted.
In a four-page dissent that Alito joined, Gorsuch criticized the 6th Circuit’s ruling. “Whatever the ultimate merits of this case,” Gorsuch wrote, the court of appeals should have considered the challengers’ argument that both of the Nov. 18 orders, taken together, discriminated against religion. “Whether discrimination is spread across two orders or embodied in one makes no difference,” Gorsuch explained, because “the Constitution cannot be evaded merely by multiplying the decrees.” Even if the challengers had not properly raised the argument involving the right of parents to direct the education of their children, the 6th Circuit’s failure to consider both orders collectively, Gorsuch suggested, justified throwing out its ruling. And because the orders “remain in force,” he continued, it would be “better for everyone” for the court to instruct the 6th Circuit to “resolve the case now, under accurate legal rules.”
Citing a case in which Kentucky state troopers seeking to enforce stay-at-home orders recorded the license-plate numbers of worshipers at an Easter church service, Gorsuch observed that, as a result of the pandemic, state officials “have sometimes treated constitutional rights with suspicion.” But the Supreme Court, he emphasized, has “made clear it would no longer tolerate such departures from the Constitution” – even “in a case where the challenged edict had arguably expired.” He would do the same here, he wrote: “I would not leave in place yet another potentially unconstitutional decree, even for the next few weeks.”
Alito also filed a separate dissent that Gorsuch joined. He noted that he did not agree with the decision to deny Danville Christian’s request; what’s more, he added, “no one should misinterpret that denial as signifying approval of the Sixth Circuit’s decision.” Rather, Alito emphasized, the court’s ruling appears to be “based primarily on timing” and the idea that, because the winter holidays are about to begin for most schools and in-person schooling will resume next year, the justices are “therefore reluctant to grant relief that, at this point, would have little practical effect.” But, Alito continued, the school and the attorney general filed their lawsuit just two days after the order was issued, and they came to the Supreme Court on Dec. 1, two days after the 6th Circuit’s ruling. “It is hard to see,” Alito concluded, “how they could have proceeded more expeditiously.”
In a press release issued on Thursday evening, lawyers for Danville Christian indicated that although their client “would have liked the Court to rule on the merits today,” it would return to court “immediately” if Beshear imposes a new school-closing order. Kelly Shackelford, chief counsel for First Liberty Institute, which represents Danville Christian, wrote that courts should “send a message to Governor Beshear and government officials around the nation that our God-given rights are still protected, even in a crisis, and especially from irrational and discriminatory government orders. The First Amendment protects religious education just as it protects worship.”
This post is also published on SCOTUSblog.