Religion and the Law

Kentucky AG: Government Can't Shut Down In-Person Teaching at Religious Schools

The AG's opinion applies strict scrutiny under the First Amendment and the Kentucky Religious Freedom Restoration Act, and concludes that the medical evidence suggests total shutdowns aren't necessary to preserve public health.

|The Volokh Conspiracy |

From a Kentucky Attorney General opinion released on Aug. 19, but just posted on Westlaw:

Subject: Whether, during the current state of emergency caused by the spread of the novel coronavirus, the Governor, the Cabinet for Health and Family Services, or any other state or local officials may order the closure of religiously affiliated schools that are in compliance with reasonable social distancing and hygiene guidelines set forth by recognized national or international health agencies and organizations.

Syllabus: No. Under the First and Fourteenth Amendments to the United States Constitution, and Kentucky's Religious Freedom Restoration Act, KRS 446.350, the Governor, the Cabinet for Health and Family Services, and any other state and local officials, are prohibited from closing religiously affiliated schools because it does not appear that school closure is the least restrictive means to serve a compelling state interest….

Although life in the Commonwealth has changed, the United States Constitution and the demands of Kentucky law have not. On March 6, 2020, Governor Andrew Beshear declared a state of emergency in response to the spread of the novel coronavirus. Since that time, state and local officials have taken extraordinary measures in an attempt to protect the public health. All of the measures may have been well-intended, but many have been unconstitutional. See, e.g., Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (finding the Governor's ban on drive-in church services unconstitutional); Roberts v. Neace, — F.Supp.3d —-, No. 2:20-cv-054, 2020 WL 2115358 (E.D. Ky. May 4, 2020) (finding the Governor's travel ban unconstitutional); Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, — F.Supp.3d —-, No. 3:20-CV-00033-GFVT, 2020 WL 2305307 (E.D. Ky. May 8, 2020) (granting statewide injunction against of the Governor's prohibition on mass gatherings with respect to any in-person religious service that adheres to applicable social distancing and hygiene guidelines); Ramsek v. Beshear, — F.Supp.3d —, No. 3:20-cv-00036-GFVT, 2020 WL 3446249 (E.D. Ky. June 24, 2020) (finding the Governor's ban on political protests unconstitutional). "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

During these extraordinary times, on August 10, 2020, Governor Beshear "recommended" that districts delay in-person instruction until September 28, 2020. Now, in a reversal for some, and in response to the Governor's recommendation and pressure from the Department of Education, most public schools are preparing to start the year using non-traditional instruction … rather than in-person instruction.

However, a number of religiously affiliated schools, after a summer of preparation, have chosen to begin in-person instruction. Understandably, religiously affiliated schools and concerned parents wonder whether the Governor, or other state and local officials, may lawfully coopt their informed decisions to reopen for in-person instruction. Specifically, this Office has been asked whether the Governor, the Cabinet for Health and Family Services, or any other state or local governmental agency or official may order the closure of religiously affiliated schools that are in compliance with reasonable social distancing and hygiene guidelines set forth by recognized national or international health agencies and organizations. For the reasons that follow, they may not.

The freedom to practice one's faith is a defining feature of American liberty. "Since the founding of this nation, religious groups have been able to 'sit in safety under [their] own vine and figtree, [with] none to make [[them] afraid."' Tree of Life Christian Schools v. City of Upper Arlington, 905 F.3d 357, 376 (6th Cir. 2018) (Thapar, J., dissenting) (quoting Letter from George Washington to Hebrew Congregation in Newport, R.I. (Aug. 18, 1790)). This is the promise of America. It is one of the Nation's "most audacious guarantees." And that promise extends to the right of Kentucky parents not only to "establish a home and bring up children" and "to control the education of their own," but also to do so in a manner consistent with their faith.

The "American community is today, as it long has been, a rich mosaic of religious faiths." Indeed, "[r]eligious education is vital to many faiths practiced in the United States." … In exercising their First Amendment rights, parents may choose to send their children to religiously affiliated schools instead of public schools. Parents may make that choice because "[m]any such schools expressly set themselves apart from public schools that they believe do not reflect their values." … Accordingly, compulsory-attendance laws have been held unconstitutional where they prevent parents from sending their children to religious schools. And if the state cannot compel children to attend public schools when doing so conflicts with the parents' faith, it follows that the state cannot prohibit children from attending religiously affiliated schools.

Of course, any attempt by the state to prevent parents from sending their children to religiously affiliated schools does not only implicate parents' First Amendment rights. "Such action [also] interferes with the internal governance of the church" in violation of the religious organizations' First Amendment right. The First Amendment "gives special solicitude to the rights of religious organizations." It protects a religious organization's "autonomy with respect to internal management decisions that are essential to the institution's central mission." Thus, a religious organization's decisions about how to teach children—here, whether in-person or by virtual means—is similarly protected by the First Amendment.

Given the central importance of religious education to faith communities, any order by a state or local official to close a religiously affiliated school likely would "prohibit[] the free exercise" of religion in violation of the First and Fourteenth Amendments, especially if the government continues its arbitrary manner of picking and choosing which institutions must close and which may remain open to the public.

In addition, such an order likely would violate Kentucky's Religious Freedom Restoration Act, which provides that the government may not ""substantially burden" a sincerely held religious belief "unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest." … Closing a school affiliated with a religious organization undoubtedly meets the definition of "burden" ….

Accordingly, the government would be required to prove by clear and convincing evidence that its closure order furthers a compelling governmental interest and is the least restrictive means to further that interest. No one doubts that preventing the spread of Covid-19 is a compelling government interest. But, even amid the current state of emergency, the American Academy of Pediatrics "strongly advocates that all policy considerations for the coming school year should start with a goal of having students physically present in school." Moreover, the Academy has emphasized that "[t]he importance of in-person learning is well-documented, and there is already evidence of the negative impacts on children because of school closures in the spring of 2020." In fact, the Academy has counseled policy makers to "acknowledge that COVID-19 policies are intended to mitigate, not eliminate, risk. No single action or set of actions will completely eliminate the risk of SARS-CoV-2 transmission, but implementation of several coordinated interventions can greatly reduce that risk."

Likewise, the National Academies of Sciences, Engineering, and Medicine recommend that "school districts should prioritize reopening schools full time [[for in-person instruction], especially for grades K-5 and students with special needs." They advise that "[o]pening schools will benefit families beyond providing education, including by supplying child care, school services, meals, and other family supports. Without in-person instruction, schools risk children falling behind academically and exacerbating educational inequities." And, the Centers for Disease Control and Prevention has plainly stated that "[e]xtended school closure is harmful to children," and that "[r]eopening schools creates opportunity to invest in the education, well-being, and future of one of America's greatest assets—our children—while taking every precaution to protect students, teachers, staff and all their families."

Religiously affiliated schools in the Commonwealth have pledged to heed these expert recommendations, and guidance to wear face coverings, wash hands frequently, and maintain social distancing of six feet. For that reason, and considering that various other activities and gatherings may move forward—it is difficult to imagine how closing religiously affiliated schools could pass Constitutional or statutory muster. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728 (2014) ("The least-restrictive-means standard is exceptionally demanding[.]"); Holt v. Hobbs, 574 U.S. 352, 365 (2015) ("[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it."). Thus, state and local officials should carefully consider their specific statutory authority and the compelling interest that requires action, if any, and then implement only the most carefully crafted measures in response to a public health emergency…. "[C]ourts must not accept as sufficient whatever explanation is offered. In exercising its constitutional function, it is not enough to simply 'trust' … that a restriction is necessary or right …. Even in times of crisis, the Constitution puts limits on governmental action." …

Finally, it is axiomatic that if a public official may not do something directly, that same official may not do it indirectly. Although cast as a ""recommendation" to close schools to in-person instruction, there is some indication "that is word play." As is well-documented, government officials have recently stated that there would be "consequences" for those public school boards that chose to ""defy" the recommendation to close schools to in-person instruction. Such comments strongly suggest that should a public school choose to open for in-person instruction, it will be met with pressure to "choose" otherwise. At a minimum, that is unfortunate. But, to the extent a state or local official intends to apply such strong-arm tactics to religiously affiliated schools, that likely would be unconstitutional.

As the Commonwealth continues to grapple with the impact of the coronavirus, it is important to emphasize that "a desirable end cannot be promoted by prohibited means." Perhaps "[a] perfect response would require everyone to stay put and limit contact with everyone else. But that is not the world we live in." Because the words of the Constitution have fixed meanings, the protections that they provide must endure—whether in ordinary or extraordinary times. Maryville Baptist Church, 957 F.3d at 615 ("While the law may take periodic naps during a pandemic, we will not let it sleep through one.")….

NEXT: Trump Promotes the Outlandish Claim That COVID-19 Has Killed a 'Minuscule' Number of Americans

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  1. I’m going to take a guess without looking anything up. Democratic governor, Republican AG who wants to be governor.

    1. Republican state, Republican everything else.

      1. “Republican state, Republican everything else.”

        Republican record of lack of accomplishment.

  2. Just start throwing molotov cocktails and hang up BLM banners and everything will be okay.


    High school completion
    Kentucky 46

    Undergraduate degree
    Kentucky 49

    Graduate degree
    Kentucky 38

    Kentucky 38

    Imagine Kentucky without that sliver of Cincinnati’s suburbs.

    1. Shutting down schools will help these metrics. Is that your point?

      1. And it isn’t even that — degrees alone neither provide jobs nor happiness.

      2. Depends on the schools you have in mind. Are they nonsense-teaching, backwater, bottom-scraping religious schools?

        1. “Are they nonsense-teaching, backwater, bottom-scraping religious schools?”

          Sounds like it’s still better than your education.

    2. You do realize that public school attendance in Kentucky outnumbers private religious schools by more than 10:1, don’t you? Think through your comments next time, so as to avoid looking like a fool.

      1. Think through your comments next time, so as to avoid looking like a fool.

        But that requires engagement of the brain. In his case, it is only the knee that is engaged in jerking in reaction.

      2. “public school attendance in Kentucky outnumbers private religious schools by more than 10:1”

        That may not remain the case if the public schools remain closed.

      3. Well that ship has sailed. Or, since it’s Kentucky, the horse of AK’s foolishness left the barn some time ago.

      4. The public schools in Kentucky are operated by Kentuckians. I would not expect a generally backward, bigoted, superstitious, poorly educated, conservative citizenry to favor, fund, tolerate, or be capable of operating strong schools. Would you?

          1. Is that the official theme song of a white, male, right-wing blog . . . or just something from the ’30s that reminds stale-thinking conservative bigots of their illusory “good old days.”

            1. No. It’s the official theme song for commenters that have not had an original thought in decades, and thus repeat, parrot-like, the same comment again and again.

              1. I identified relevant, important, specific information concerning education in Kentucky. Clingers apparently can’t handle that truth.

                If you want people to stop identifying the problems with right-wing bigotry, superstition, ignorance, and backwardness . . . ditch the bigotry, superstition, ignorance, and backwardness.

                1. Or you could continue to cling to the bigotry, superstition, ignorance, and backwardness . . . and ask Prof. Volokh to ban me.

                  1. Once again proving my point.

                    1. Was your point that you have no point? Because that’s what you keep repeating.

                    2. “Was your point that you have no point? Because that’s what you keep repeating.”

                      Funny, you can’t figure out that Artie just repeats the same bullshit in nearly every post he makes, but you can recognize that BL repeated himself in response to Artie’s normal, repeated keyboard vomit?

                      Must be one of Artie’s congregation.

                  2. We don’t want the Prof. to ban you. We want you to ban yourself, from life. Hopefully something slow and painful. To make up for the keyboard vomit that you subject us to.

  4. While moronic and dumb, and short-sighted; I’m actually in favor of the schools here. Our 50 states will be a laboratory. And we’ll see what happens at these religious schools. Covid will spread as a result. Or it won’t. More people will died or become severely sick and compromised. Or they won’t. Time will tell. And hopefully other states will learn lessons from what ends up happening.

    I just hope “Blue” states will have the integrity to acknowledge it, if this results in no increase in Covid. And I hope “Red” states similarly will have the integrity to acknowledge it, if there unfortunately is this increase. (I’m not holding my breath for either, sadly…being a realist.)

    1. I too am in favor of the schools, but I don’t think its moronic, dumb and short-sighted. I also agree with your other comments – let’s see what happens and what we know to be real.

    2. Assuming you get accurate contact tracing, there’s indeed valuable data to be learned by trying different, varying degrees of relative isolation to track disease progress.

      If only the stupid coronavirus didn’t keep leaving unburied dead bodies lying around.

    3. With freedom comes responsibility. If the religious schools are “free” to open up and let their kids expose each other (and we’ve seen already in states like Georgia how this spreads COVID-19) then I’d like to understand what the responsibility side of this equation looks like. Do the family members of students get to sue the school for avoidable deaths? The medical bills born by the folks these kids spread the disease to?

      Is the state taking its responsibility seriously and setting up science-based contact tracing and testing? Or politically designed (lack of) contract tracing and testing?

      I don’t think a “hey, let’s sit back and see how many innocent people we accidentally kill be being cavalier with this disease” is a responsible approach. It’s a policy based on political expediency and negligence.

  5. I think the AG’s analysis is largely correct yet is missing the scientific aspect for which everyone clamors.

    Spreading CoViD-19 to those likely to survive it (that is, the majority of the population) actually has benefits, the most significant being the development of _natural_ resistance. Removing the “novel” status of the virus within the largest portion of the population is the ultimate goal: a vaccine _might_ help achieve that goal while exposure _definitely is_ progress towards that goal.

    At some point, there has to be a realization that the best vaccine contemplated offers only the probability of a modicum of immunity for a limited (150 day) period: a flu vaccine (for any strain) offers slight benefit to the most vulnerable, not to the population at large.

    1. Except it’s even better than that. SARS-CoV-2 isn’t “novel” in the relevant sense; substantial portions of the population already have T-cell recognition and response to it. This study estimates the pre-existing rate of T-cell recognition of SARS-CoV-2 in people who aren’t antibody positive for SARS-CoV-2 specific proteins (i.e., people who’ve actually had SARS-CoV-2) at 40%-60%:

      1. My mistake. It should have read: “i.e., people who haven’t actually had SARS-CoV-2.”

    2. By that argument, we should be spreading actual Plague germs to the general population, so that survivors won’t get it (again). Assuming pneumatic Plague leaves any survivors.

    3. Influenza mutates rapidly which is why we need new vaccines regularly. There is no guarantee that a coronavirus vaccine will be any different and it has killed several times more Americans than the flu did last year and that’s with people avoiding contact and wearing masks. (And, to make things even worse, people who get the flu may be more likely to die from the cornonavirus.)

  6. Of course Kentucky cannot impose health and safety regulations on religious sponsored schools. If those schools not only want to open and endanger public safety, but also in the name of religion operate schools in unsafe buildings, execute students for tardiness, requie the handling of rattlesnakes to pass a course or anything else, why religious freedom guarantees their right to do so.

    The religious fanatics who populate a part of our culture now do not just want the tolerance of their religious practices, they want special treatment, tax exemption and the right to discriminate, to hate and the spread disease to those who do not agree with them. Gosh, where has that happened before.

    1. Don’t speak ill of the rattlesnake-jugglers . . . they’re Volokh Conspiracy royalty!

      Are you trying to get banned?

    2. Sir: Your comment looks like you came upon a racist screed and scratched out the word “black” and wrote in the word “religion” in crayon. Your personal disagreements with religion do not give you a license to hate.

      Everyone thinks the people they hate are low, evil, and a scourge on the country if not kept down and put closely in check by their betters. Nobody who hates ever thinks that they hate gratuitously or unfairly. This means that constitutional rights must often necessarily work to the benefit of the hateful people, the obviously bad and wrong people (in our eyes), not to the benefit of the good people.

      1. That is, what you wrote very closely resembles the traditional white supremacist argument that runs on the lines of “the blacks are evil savages who are out to get us, so if we give them any rights at all we’ll end up with negro rule, our daughters getting raped, etc. etc.”

  7. As I’ve said before, I think opinions on these issues are tough, as a traditional fundamental right is squarely set against a traditional compelling interest. In general, strict scrutiny analysis is complicated by concerns about judicial humility, the fact that courts are not necessarily the best experts in determining how narrow tailoring needs to be where public health measures are concerned. This means I don’t think these questions have an obvious or knee-jerk answer if one looks at them fairly.

    That said, I would think a state attorney general in a state where the office is obligated to support state policies unless clearly unconstitutional would be bound by the recent case South Bay Pentacostal Curch v. Newsome, where the Supreme Court at least suggested that it would look at state efforts to close religious institutions like houses of worship in the face of a pandemic more leniently than it appears the Kentucky AG would. Whether one thinks South Bay Pentacostal Church was correctly decided or not, it is the law at the moment.

    The Kentucky state constitution might well give more weight to the religious interests than the federal constitution does. But it seems to me that South Bay Pentacostal Church clarifies the Supreme Court’s position on the federal constitution at least for the moment.

  8. “Government Can’t Shut Down In-Person Teaching at Religious Schools”

    Maybe not, but God can.

  9. The analysis seems incomplete. Even a religious school doesn’t have their religion burdened by the requirement to appear remotely unless the requirement of in-person education is part of a sincerely held religious belief. I think there may be cases where that’s true, but it seems too broad to say that all religious schools must be allowed to remain open for in-person education due to religious freedom. If a school believes it is not a requirement of their religious beliefs but is just a matter of practical convenience, I don’t think it’s the same analysis.

    1. How about if they believe that part of treating sickness is handling poisonous reptiles until they strike? Do we have to let them do that, too?

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