Coronavirus

SCOTUS Declines To Let Kentucky Religious Schools Reopen Without Addressing the Constitutionality of Closing Them

The justices emphasized that K-12 schools are currently scheduled to reopen after winter break.

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The Supreme Court yesterday declined to intervene on behalf of Danville Christian Academy, which challenged Kentucky Gov. Andy Beshear's pandemic-inspired closure of K-12 schools. The Court emphasized that Beshear's November 18 order expires soon with the beginning of winter break, after which schools currently are scheduled to reopen. The Court left open the possibility that Danville Christian Academy could renew its challenge if Beshear, a Democrat, extends his order into the new year. Justices Samuel Alito and Neil Gorsuch dissented from the decision, noting that Beshear could avoid Supreme Court review by issuing a series of temporary orders that would have the same effect as a long-term closure.

Unlike New York Gov. Andrew Cuomo's restrictions on houses of worship, which the Court overturned last month as a violation of the First Amendment's Free Exercise Clause, Beshear's order does not explicitly discriminate against religious activities. But Danville Christian Academy, joined by Kentucky's Republican attorney general, Daniel Cameron, emphasized that the governor, while closing religious schools, is allowing many secular activities that pose similar or higher risks of virus transmission.

U.S. District Judge Gregory F. Van Tatenhove, who last month issued a preliminary injunction allowing religious schools to open, found that argument persuasive. "This court wonders why, under this executive order, one 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," he wrote.

Four days later, the U.S. Court of Appeals for the 6th Circuit imposed a stay on Van Tatenhove's injunction pending resolution of the case. Cameron and Danville Christian Academy asked the Supreme Court to lift that stay.

"The Order applies equally to secular schools and religious schools, but the applicants argue that the Order treats schools (including religious schools) worse than restaurants, bars, and gyms, for example, which remain open," the Court notes. "For the latter reason, the applicants argue that the Order is not neutral and generally applicable." The Court has said the Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. But it also has said laws are presumptively unconstitutional when they discriminate against religion.

The Court declined to get involved in the dispute for the time being. "Under all of the circumstances, especially the timing and the impending expiration of the Order," it said, "we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year."

In a dissent joined by Alito, Gorsuch notes that Beshear, while forbidding in-person primary and secondary education, "permitted virtually all other in-person activities to continue with only capacity restrictions." For example, "Movie theaters, indoor wedding venues, bowling alleys, and gaming halls remained open for business." Such distinctions are hard to justify on scientific grounds, especially given the lack of evidence that K-12 schools are an important source of virus transmission. Gorsuch says the 6th Circuit erred by failing to "address the plaintiffs' argument that the two [executive orders], considered together, resulted in unconstitutional discrimination against religion."

Gorsuch says Beshear should not "be able to evade judicial review by issuing short-term edicts and then urging us to overlook their problems only because one edict is about to expire while the next has yet to arrive." He notes that "the Governor has expressly told us that he reserves the right to issue more decrees like these if and when religious schools try to resume holding classes."

In a dissent joined by Gorsuch, Alito notes that the Court's order is "based primarily on timing" and argues that "it is unfair to deny relief on this ground since this timing is in no way the applicants' fault." The plaintiffs filed their lawsuit on November 20, two days after Beshear issued his order, and sought the Supreme Court's intervention on December 1, two days after the 6th Circuit issued its stay. "It is hard to see how they could have proceeded more expeditiously," Alito writes.

The Court's order does not address the merits of the plaintiffs' claims, and it may yet have an opportunity to do so, depending on whether Beshear actually allows schools to reopen in January. In addition to the issue of whether his policy is neutral and generally applicable, the case raises the question of whether it is unconstitutional in any event because it not only burdens religious freedom but also impinges on the rights of parents to direct their children's education.

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    2. The voters of KY made a grave error when they chose Beshear over Bevin because Bevin was mean to teachers.

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  3. Wouldn’t reopening them pretty well address the constitutionality of closing them?

    A simple “YOU CAN NOT DO THAT” seems sufficient.

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  4. Has Sullum finally stopped writing anti-Trump pro-Biden articles?

    1. Ironically the angle he took here is diametrically opposed to the previous dozen articles where he said to just accept procedural results.

      1. I want Whoopi Sullum to explain what legal case in US history has more evidence than compiled here: https://hereistheevidence.com
        And then let’s talk about the John Roberts on the Epstein fantasy island flight. Fox correspondent John Roberts came out immediately saying he has never been near Epstein…let’s see if CJ Roberts clears the air. We already know Bill Gates, Clinton, and Gore were there. Lawandcrime dot com has the flight log and the purported photo.
        If Roberts is as compromised as the tin hat people say (who so far have been right about Russia being a hoax, Hunter Biden, and more), that would explain Roberts’ voting just as Soros promised he would….

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  5. It seems to me that by raising the issue of unequal treatment between schools and other venues, this school is asking that the state be required to “show the science” and I’m skeptical that the Supreme Court will be willing to step into that argument. They are more than happy to show deference to the authorities, that if the “experts” have claimed this is a valid reaction to an ongoing health emergency, it’s not the Court’s place to second-guess the expert’s opinions. Whether or not the expert’s opinions make a lick of sense – in that it indicates the “experts” are in fact idiots rather than experts – matters not a whit, as long as the state is relying on the opinion of experts, it’s all good. And you’d better be glad a panel of experts hasn’t agreed that seizing all your guns will solve the epidemic of gun violence, because it’s pretty iffy on how the Court would rule on the constitutionality of that act.

    1. It’s a losing proposition to ask the court to determine what level of risk does or does not allow for local governments to use the powers generally granted to them during an epi/pan-demic, at least in cases where there is already established precedent that a compelling government interest DOES allow limitations on civil liberties. I disagree, but see why some of these cases are non-starters. If the people think their local leaders are over-reacting, the remedy is the ballot box not the courts.

      It’s different when the powers are being disproportionately exercised or where governors are claiming new powers. SCOTUS needs to stop skirting those.

      1. If the people think their local leaders are over-reacting, the remedy is the ballot box not the courts.

        ^ This.

        I think most people would agree that if the literal Black Plague returned, that some level of government would be within its authority to restrict people’s behaviors in the name of preventing its spread. Certainly anybody invested enough in the system to become a judge is going to see things this way.

        The question then becomes “is this really comparable to such a disaster, or is this mass hysteria?” Which is not a question the Court is going to be comfortable deciding.

        Once you’ve established the principle that a local official has wide latitude if he can convince his constituency that there’s a big emergency that needs addressing, the remedy comes once people (sooner or later) realize they’ve been lied to. It may take 15-20 years to percolate through the whole culture sometimes, but it will happen eventually.

        Which is so much as to say that I predict 2020 is going to be a Pyrrhic victory for Democrats.

        1. Why should we wait 2 to 4 years to stop an overreaction claiming 2 years? Especially unconstitutional actions.

          1. Agreed. Here is Soros in January when the cheating was being laid out using technology (Dominion is owned by Soros and has Chinese nationals on the board) and with Zuckerberg getting his $500 million ballot ground game going). Soros says Trump is a narcissist (irony) who must be removed from office and that Chief Justice John Roberts will deal the “surprise”: https://www.youtube.com/watch?v=bK3uKVRYT6I
            It would be a silly plot in a movie and yet it’s all too real.

            1. Cripes! They don’t give a crap who knows anymore. The masks are off.

          2. Why should we wait 2 to 4 years to stop an overreaction claiming 2 years?

            I’m making a prediction, not an admonition.

        2. If the literal black plague returned it would be apparent and obvious and people would be way ahead of the government in taking appropriate steps.

          Look back to march, people had already adjusted their behaviors days or weeks before governments issued any orders.

          Its also why a couple weeks later when it was clear that this wasn’t ‘literal black plague’ that people started disregarding those orders.

          1. If the literal black plague returned it would be apparent and obvious and people would be way ahead of the government in taking appropriate steps.

            Agreed. I made the exact same point myself several days back.

            What I said was that “I think most people would agree that if the literal Black Plague returned, that some level of government would be within its authority to restrict people’s behaviors in the name of preventing its spread.”

            I.e., it’s going to be the rare judge who is going to have the opinion that there are no circumstances whatsoever in which governments can suspend liberties in the name of addressing a (true) public crisis. It becomes a matter of finding that line, which courts are going to be reluctant to do.

            Its also why a couple weeks later when it was clear that this wasn’t ‘literal black plague’ that people started disregarding those orders.

            Precisely. I think of the wars in Iraq and Afghanistan. Most Americans at the time were willing to believe that their government was acting in good faith and not lying to them.

            Nowadays almost no one supports our continued involvement in those countries, and both those wars are widely seen as mistakes.

            This is why I say the Dems are being a little over-hasty in taking their victory laps. This is going to come back to haunt them.

            1. If the masses are demonstrating through rejection of the measures imposed that they do not see a ‘true crisis’ then it seems clear that government doesn’t have the consent of the masses in the present matter, thus exercise of said powers are nullified, regardless of what any Judge says.

              1. consent of the governed rather

              2. If the masses are demonstrating through rejection of the measures imposed that they do not see a ‘true crisis’ then it seems clear that government doesn’t have the consent of the masses in the present matter, thus exercise of said powers are nullified, regardless of what any Judge says.

                In a philosophical sense, yes. But in the context of the legal system, no judge is going to rule that widespread non-compliance with a law is de facto a nullification of that law. And even if you could find a judge who would rule that way, you would have to prove that a majority of people are breaking the law.

                The question at hand was regarding whether a court would confront The Science! and declare it doesn’t justify the actions taken, but I’m agreeing with mamabug that the court isn’t going to take a stance on what constitutes a “true emergency,” and certainly isn’t going to challenge the notion that there are circumstances in which people’s behavior can be subjected to regulation in the name of public safety.

                OTOH, just as people eventually came to realize that the invasions of Iraq and Afghanistan were sold on falsehoods and punished Republicans at the polls for it, there is a day of reckoning coming for the Democrats, a slump on a scale perhaps not seen since the Republicans of the 1930s or the Democrats of the 1860s.

    2. as long as the state is relying on the opinion of experts, it’s all good

      Experts often disagree. Does the SCOTUS need only ONE expert opinion to make a ruling (or take no action)? As you point out, this type of logic is insane.

      All the lockdowns are unconstitutional – regardless of plague or virus or invasion. Doesn’t 1A mean anything to these fools?

      1. As you point out, this type of logic is insane.

        But nevertheless works. If I’m a public official making decisions that impact people, I am always going to have an expert I can point to so I can say that I didn’t just make an arbitrary decision, but relied on expertise.

        Oh – my expert is a moron who was wrong about every single thing? Well, how was I supposed to know that? I’m no expert!

      2. It doesn’t really matter.

        As long as the government has 1 expert that they’re relying on, that will be taken as good enough.

  6. Since ACB joined, SCOTUS has shown to be disinclined to make any potentially contentious ruling. I expect they are waiting until 1/5 to see whether they can stop acting like the Sword of Damocles is hanging over their heads.

  7. Get over it sullum, the court ruled. Stop beclowning yourself. Talking about merits when it was decided procedurally? Give up. It is an embarrassment. That is what you’ve said for 25 articles now.

    1. What’s strange is a Sullum article that isn’t about Trump’s court challenges.

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  9. SCOTUS Declines To Let Kentucky Religious Schools Reopen”

    Looks like Tony just got his Christmas wish!
    Now if only they’d criminalize every religion other than progressive intersectionality.

  10. Lets remember that is this case the religious school was treated the same as non-religious schools, and thus were asking for special treatment. For SCOTUS to rule for them, especially without a full lower court record and amicus briefs, would completely upend decades of law.

  11. The Right to Life trumps any rights to gather in a group creating a high risk to others

    That’s pretty simple

    No one is stopping the practicing of religion. Religion can be practiced at home perfectly well.

    It is the prolonged gathering of people that is being temporarily banned, not the religious part of it.

    1. Except you don’t get to decide how, when, and where people may or may not get to exercise their religion.

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  13. Well does the SCOTUS really have Federal standings over Kentucky closing all the STATE’S schools? The ‘Feds’ didn’t shut down the school!

    Maybe if Kentucky shut down JUST religious schools there may be some federal standing; but that’s not really what’s going on.. The school is asking to be *entitled* over all other schools BECAUSE they’re a religious school.

    1. Yes, if there’s a violation of the US Constitution.

      1. … I’m still waiting for the SCOTUS to shut down the EPA, CDC, SS and 99% of the Agencies in violation of the U.S. Constitution. Just out of curiosity though; What part of the U.S. Constitution is Kentucky violating by shutting down *all* schools? I certainly wouldn’t think it’s related to abridging religion but actually the right to peaceably assemble; which would make *all* restrictions on gatherings a violation unless they deemed it UN-Peaceful.

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