Free Speech

Kentucky Religious Schools Have First Amendment Right to Reopen, Says Federal Judge

The decision should also support secular private schools having similar rights as well. (Public schools are under control of the state government, and lack First Amendment rights against it.)


In Wednesday's Danville Christian Academy, Inc. v. Beshear (E.D. Ky.), Judge Gregory F. Van Tatenhove's granted a preliminary injunction that allowed religious schools to reopen in Kentucky; the governor's closure order, the court concluded, violated the Free Exercise Clause. (The order was promptly appealed, and presumably Governor Beshear will ask the Sixth Circuit to hear the case on an expedited basis.)

[1.] The opinion concluded that there was sufficient evidence that the closure order burdened Danville Christian's Free Exercise Clause rights:

To begin, the parties do not facially dispute that Danville Christian has a sincerely held religious belief in conducting in-person instruction. Nevertheless, the Governor argues that the fact Danville Christian halted in-person teaching earlier during the pandemic, when faced with an infected member of its community, seriously undermines the irreparable harm requirement of a preliminary injunction. By implication, this raises a challenge to the school's sincerity. In response, Danville Christian argued that the halt in holding in-person instruction was a voluntary short-term act taken out of deference to the community, and now that more is known about the virus and other measures can be taken to allow classes to resume safely, it would violate Danville Christian's First Amendment rights to force the school to hold virtual instead of in-person classes.

Exercising a judgment call to close for a short period of time when far less was known about the virus cannot now effectively counter its conviction. Danville Christian has presented evidence of the significance of in-person instruction, including the holding of weekly chapel services and corporate prayer throughout the day. The Court is also cognizant of the role of daily in-person mentorship of religious values that occur in religious schools that is simply not as feasible in a virtual setting. In extending the ministerial exception to private school teachers in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court expressed that in the First Amendment context, faith and education go hand in hand. "[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school." Therefore, insofar as it relates to the irreparable harm prong, the Court finds this to be sufficient to demonstrate Danville Christian's sincerely held belief.

[2.] The court then concluded that the closure order wasn't neutral and generally applicable (and thus didn't fall within Employment Division v. Smith) because it treated schools worse than preschools and universities:

There is ample scientific evidence that Covid-19 is exceptionally contagious. But evidence that the risk of contagion is heightened … in K-12 schools as opposed to preschools, universities, or colleges, is lacking. Dr. Steven Stack, the Commissioner of the Kentucky Department of Health, stated that Kentucky is particularly vulnerable to the spread of Covid-19 in schools because "an unusually high percentage of Kentucky children are cared for by their grandparents and older individuals are at higher risk of severe illness or death from Covid-19. He further stated, "[s]chools are high volume mixers of people" which can make reduction in the spread of Covid-19 difficult. Of course, that is true of many public settings. In spite of these factors, preschools, colleges, and universities will remain open so long as certain precautions are taken. Neither Dr. Stack nor the Governor have adequately explained why K-12 schools must close while these other institutions, where many children and young adults who live at home may still expose family members to Covid-19, can remain open.

The Governor's executive order also seems to run counter to CDC recommendations. On November 19, 2020, CDC Director Robert Redford stated, "[t]he truth is, for kids K-12, one of the safest places they can be, from our perspective, is to remain in school," and that it is "counterproductive … from a public health point of view, just in containing the epidemic, if there was an emotional response, to say, 'Let's close the schools.'"

If social distancing is good enough for offices, colleges, and universities within the Commonwealth, it is good enough for religious private K-12 schools that benefit from constitutional protection. Ultimately, "[t]he First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'" …

"[R]estrictions on religious exercise that are not 'neutral and of general applicability' must survive strict scrutiny." Although the efforts by Governor Beshear to prevent the spread of Covid-19 are commendable, the Executive Order bans all in-person instruction for K-12 schools, and this cannot be considered to be narrow tailoring as required under strict scrutiny.

{[A]lthough the Governor would like the Court to only compare schools in the context of the executive order and find the order to be one of general applicability, Maryville Baptist Church, Inc. v. Beshear (6th Cir. 2020)  instructs otherwise. In answering the general applicability question in Maryville, the Sixth Circuit questioned why law firms, laundromats, liquor stores, and gun shops could stay open while churches, despite following CDC-approved guidelines, could not. The restrictions which the Sixth Circuit criticized as "inexplicably applied to one group and exempted from another" are similar to those Danville Christian challenges today…. [P]reschools in the state remain open after this executive order, as do colleges and universities. The prohibition on in-person teaching is not narrowly tailored ….}

[3.] The court also concluded that the injunction here should apply to all religious schools in the state, and not just the Danville Christian Academy, largely because the lawsuit was also brought by the state Attorney General's office:

Furthermore, the Supreme Court of Kentucky has indicated that the Attorney General has an obligation to serve all members of the Commonwealth. This obligation includes suing government actors on members' behalf to protect constitutional rights. In the present case, the Executive Order at issue does not just affect Danville Christian. The Executive Order applies to all religious schools in Kentucky. Upon consideration of both judicial precedent and the expansive obligation of the Attorney General to serve all members of the Commonwealth, it becomes apparent that, because the violation established impacts all religious schools in Kentucky, the preliminary injunction must extend statewide.

[4.] Because the challenge here was brought under the Free Exercise Clause, it doesn't apply to secular private schools. But secular private schools have Free Speech Clause rights, too, as well as rights stemming from the parental rights of the parents who send their children there (see Pierce v. Society of Sisters and Meyer v. Nebraska); and allowing religious institutions to keep teaching while barring secular institutions from doing so may well violate the Free Speech Clause and the Establishment Clause (see Texas Monthly, Inc. v. Bullock and Rosenberger v. Rector). I thus think that secular private schools would have an excellent argument if they wanted to go to court to ask to be treated the same as the religious schools.

Public schools, on the other hand, lack First Amendment rights that they can assert against the state legislature: "[A] political subdivision, 'created by a state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.'"

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  1. The proper response to this decision is to shift preschools and universities to a virtual education model. The decision is right that there is no good reason for treating these educational institutions differently.

    The correct way to correct the problem is to restrict preschools and universities to virtual education and then re-apply the restrictions on private religious schools as well.

    Also, for the future, state governments ought to draw up pandemic lockdown plans well ahead of any pandemic so that they can avoid constitutional problems like this. It seems like the most likely explanation for differential treatment is ad hoc and/or decentralized decision-making rather than a desire to discriminate.

    1. Virtual preschools?
      Are you seriously suggesting you can accomplish anything – education OR daycare – by plopping a 3 or 4-year old in front of a computer camera?

      Virtual education is being revealed to have LOTS of problems – Fairfax County in VA, one of the best funded and best performing county systems in the country – just revealed that the past quarter had triple the F’s given out over last year. And that includes the high-school ranks, not just lower grades.

      I think there are some very good arguments to be made for preschools and early elementary being in-person, even if other grades are not. The problem is that the government here tried to argue that having kids in school at all was dangerous to grandparents and other at-risk adults, but then made no differentiation based on the adult when assigning risk to the child. And that’s a silly argument.

      1. Excuse me, but that is being done.

      2. If you think preschool should be distinguished from other grades, then your real beef is with court when it says that preschool cannot be distinguished from other grades without causing constitutional problems.

        As far as I am concerned, I believe the priority is saving human health and lives, not what people believe to be optimally run preschools. Or, let me rephrase that. I believe in optimally run preschools, but with the constraint that our society remains as safe as possible from the spread of COVID-19.

        1. If saving lives is the goal, then protect the vulnerable. Those with co-morbitities are the ones to be isolated. Not school aged children, who suffer little from covid, and are not contagious when showing no symptoms.
          As more facts are revealed, even its lethality is much less than experts want to admit. The latest John Hopkins analysis of total deaths in the USA, reveal no statistical evidence of excess deaths. As compared to the previous 2 years.

          1. A cite would be nice. I found this from JAMA suggesting that there’s has been a 20% increase on deaths since March first.

            Woolf SH, Chapman DA, Sabo RT, Weinberger DM, Hill L. Excess Deaths From COVID-19 and Other Causes, March-April 2020. JAMA. 2020 Aug 4;324(5):510-513.
            doi: 10.1001/jama.2020.11787. PMID: 32609307; PMCID: PMC7330820

            1. John Hopkins Study using CDC Data. “Genevieve Briand, assistant program director of the Applied Economics master’s degree program at Johns Hopkins University, recently critically analyzed the effect of COVID-19 on U.S. deaths using data from the Centers for Disease Control and Prevention (CDC) in her webinar titled “COVID-19 Deaths: A Look at U.S. Data.” Her conclusion? COVID-19 is having no significant impact on deaths in the United States.”
              Money Quote: “While deaths attributed to COVID-19 dramatically increased, deaths attributed to all other causes suddenly plummeted.”

              1. The CDC has COVID-19 deaths at just over 240,000 as of 11/27/2020 (noting that the data are incomplete for November). Total deaths from all causes are just under 2.6 million and 12% higher than expected. Thus, the excess number of deaths without reference to cause is about 278,000.

                The above report claims deaths from other causes plummeted. How can that be if overall deaths increased by more than the reported number of COVID-19 deaths.

          2. “…and are not contagious when showing no symptoms.”

            A bald-faced lie.

        2. As I pointed out, my beef is with the government for making a silly argument that the court rightly rejected – the government gave no justification for handling the different grades differently, but did so anyway.

          As for “as safe as possible”, I don’t believe that, or you would be advocating for every human to be put into forced isolation, with armed guards enforcing full-time quarantine by shooting violators on sight in the streets – or even more extreme measures.

          What I do believe is that you have little to no understanding of the actual risks, and are in panic mode. I suggest you read a few studies of the disease, before acting like it is some sort of extreme threat.

        3. If you believe that saving human lives is the priority than you should be a big fan of a national 5mph speed limit. Beside eliminating nearly 30K annual traffic fatalities, in addition as people move closer to work the saving in CO2 emissions would be enormous.

          The 5mph limit won’t happen because of other costs it imposes. One of the problems for lockdown proponents is their failure to explain and justify those costs rather pretending they don’t exist.

      3. Our local school system here in Greenville county is transitioning to full time. Based on three reasons:

        1) Children have an extremely low risk from Covid.
        2) A disturbingly high percentage of students are flunking under remote learning.
        3) A disturbingly high percentage of parents are coming around to the idea of defunding the public schools in favor of a voucher system, because the private schools never shut down, and had no problems.

    2. It would not matter, the basis of the ruling is that religious schools get special treatment.

      1. That is not what the ruling says. The ruling says the problem is that they aren’t being treated equally.

        I also think the court is pointing out a legitimate problem.

        1. Of course the ruling says religious schools aren’t being treated equally, but does that conclusion make sense given that 1) religious and secular K-12 schools are treated equally, and 2) religious and secular universities and preschools are treated equally?

          1. The first amendment reads (the relevant part):
            “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

            It doesn’t read “Congress can make laws prohibiting the free exercise of religion so long as comparable activities are prohibited, as determined by the state what is comparable”

            1. The First Amendment also says Congress shall make no law abridging the freedom of speech. And yet, laws that proscribe perjury are permissible. Perhaps that’s because while perjury is speech, it isn’t an exercise in the freedom of speech.

              Similarly, a generally applicable law certainly can incidentally prohibit the exercise of religion. But does it prohibit the free exercise of religion?

              1. “But does it prohibit the free exercise of religion?”
                Depends on the law.

                However, one of the major issue here is the absolute Yes/No nature you’re taking. By your argument, perjury can be banned. So, the government also has the capability to ban or criminalize “comparable” speech, for example “misleading” information about COVID.

                Likewise, no one doubts the state can shut down schools, if it so desires. But by your logic, it can also shut down religious schools and churches because they are “comparable”. Regardless of the freedom of religion.

                This argument leads itself to the elimination of our rights.

                1. The comparison regime only applies to generally-applicable laws in Free Exercise doctrine. There is no such analogue for Free Speech doctrine.

                  And as usual, you beg the question that a right has been eliminated if a neutral and generally applicable law incidentally shuts down a religious school.

                  1. “The comparison regime only applies to generally-applicable laws in Free Exercise doctrine. There is no such analogue for Free Speech doctrine.”

                    You brought in the Free Speech Example. And Free Speech and Free Exercise of Religion…they’re both part the same amendment. Perhaps they should be treated as close to each other as possible. If there’s a “comparison” regime, it would make sense for there to be a “comparison” regime for the other

                    But, IMO, there shouldn’t “be” a comparison regime for Free Exercise. It should be treated like Free Speech is. And yes, your rights have been sharply infringed upon if you’re not allowed to practice or teach your religion.

                    1. I brought in the Free Speech example to show that the conclusion that Congress is categorically prohibited from passing laws on either speech or religion is not found in the text. Beyond that, they are different doctrines with different tests.

                    2. Indeed, you did bring in the Freedom of Speech, and it makes a poignant point.

                      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech”

                      Now, there are different doctrines with different tests, as you say, and those continue to evolve, most recently towards one more protective of religion. But “should” there be substantially different doctrines and tests?

                      One of the major reasons given to effectively limit or ban people being able to practice their religion in their houses of worship for almost a year was to “protect lives.”

                      Couldn’t the same exact logic be used by the government to ban or criminalize “misleading” speech about the epidemic? That such misleading costs lives? Wouldn’t the government be justified in such censorship, in order to save people? What are you thoughts there, and how it substantially differs from the religion angle?

                    3. Without regard to the pandemic, I agree with Eugene that neutral and generally applicable laws do not, and should not, violate the Free Exercise clause. So yes, there should be different doctrines (see <a href=""Eugene's amicus brief in Fulton for why).

                      Regarding the pandemic, objectively false statements can likely be proscribed per Alvarez. However, subjectively misleading statements can’t.

                    4. Hopefully, this fixes the link to Eugene’s brief.

                    5. And I’m of the opposite opinion.

                      It is entirely possible for “neutral and generally applicable laws” to have the capability to violate the Free Exercise clause in some situations, just as a “neutral and generally applicable law” can violate the Free Speech clause.

                      Consider Guiles v. Marineau. A general and neutral regulation which which prohibits “any aspect of a” student’s “appearance, which constitutes a real hazard to the health and safety of self and others or is otherwise distracting,” And yet, the court ruled for the student that the general regulation violated the Student’s right to free speech.

                      In the same way, a “Neutral and generally applicable law” can violate a person’s free exercise rights in some situations, and should be struck down.

                      Once you go down the road that allows such infringements on some rights, other rights can follow easily.

                    6. The dress code in Guiles was not content neutral. To the contrary, it targets speech whose content is “a real hazard to the health and safety of self and others or is otherwise distracting [or] is unacceptable as an expression of personal taste.”

                    7. “I brought in the Free Speech example to show that the conclusion that Congress is categorically prohibited from passing laws on either speech or religion is not found in the text.”

                      It absolutely IS found in the text. It’s the practice where it’s not found.

                    8. Brett, do you think perjury is speech protected by the First Amendment?

                    9. If you were to take the language of the 1st amendment literally, yes. The actual text is stated quite absolutely, which was my point. The compromises are all on the practice end of things.

                      “the conclusion that Congress is categorically prohibited from passing laws on either speech or religion is not found in the text.” is literally false, as anybody who reads the text can see.

                      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

                      Sounds pretty categorical to me. Doesn’t it to you? What would you change to make it categorical? Add a parenthetical, “And no means no!”?

                      To directly answer your question, I’m fine with perjury being illegal in the very limited context of statements given under oath, because taking the oath amounts to a limited and binding agreement to forfeit the protection of the 1st amendment for the duration of the testimony.

                      I’m not fine with charging people with perjury when they’ve not taken an oath. Like the law subjecting you to perjury charges for lying to a federal officer.

                    10. It does not sound like a categorical prohibition on regulations of speech to either Eugene or me (for the same reasons given by Eugene).

                    11. All I can say is that you both have grammar problems, doubtless motivated by the conflict between straightforward text and unsurprisingly non-compliant policy, and the deep seated need not to admit the non-compliant policy was/is actually non-compliant. The fact that practice didn’t comply with the absolute text doesn’t mean the text wasn’t, grammatically, absolute. It can easily mean they weren’t obeying it.

                      In that long ago thread, too, it was pointed out that it is difficult to imagine how you’d have phrased an absolute prohibition against such legislation, once you’ve decided the actual text of the Amendments aren’t enough to establish absolute prohibitions.

                    12. I happily join Eugene and Justice Scalia in their grammar problems.

                    13. If you were to take the language of the 1st amendment literally, yes. The actual text is stated quite absolutely, which was my point. The compromises are all on the practice end of things.

                      “the conclusion that Congress is categorically prohibited from passing laws on either speech or religion is not found in the text.” is literally false, as anybody who reads the text can see.

                      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

                      Sounds pretty categorical to me. Doesn’t it to you? What would you change to make it categorical? Add a parenthetical, “And no means no!”?

                      No, it’s not even remotely categorical.

                      It does not say, “Congress shall make no law restricting speech.” it says “Congress shall make no law abridging the freedom of speech.” “Freedom of speech” is a thing, not just a collection of individual words you can put into a law-to-english parser built by some engineer who never studied law or history and come out with a policy.

                      The “freedom of speech” never included a freedom to lie under oath in the first place, so a law banning lying under oath doesn’t abridge it at all.

            2. It doesn’t read “Congress can make laws prohibiting the free exercise of religion so long as comparable activities are prohibited, as determined by the state what is comparable”

              Well, not phrased exactly that way, but that’s precisely what Scalia said that it means.

              1. Supreme court Justice denies Constitution actually means what it says, news at 11!

                Kind of a dog bites man story, unfortunately.

      2. That’s what happens with Constitutionally granted rights. They get “special treatment.”

        It’s like your right to get an abortion. It gets “special treatment”.

    3. This might be your most comically bad post ever..grats

      1. My solution would address the courts concern about discrimination against these religious schools be eliminating that discrimination.

        My solution would also curtail the spread of COVID-19. The benefits of keeping people from dying now are especially high, since a vaccine is literally right around the corner.

        1. That would indeed resolve the discrimination. However while legal, that would be morally wrong. It is the Harrison Bergeron of pandemic responses.

    4. Preschools are that, pre-school, and about learning socializing. Ya got no tumble of kids, ya got no preschool.

    5. Virtual preschool = homeschooling.

      I’d like to see a combined FAPE & 13th Amendment challenge to the mandate of parental participation in virtual skooling….

      1. I’d like to see you not talk about topics that you know nothing about.

    6. “The proper response to this decision is to shift preschools and universities to a virtual education model.”

      Your grasp of the controlling precedent seems deficient. The standard for curtailing a fundemental right, like freedom of speech, freedom to peaceably assemble, and freedom of religion, is that the law be narrowly tailored. Merely expanding the order to encompass other entities does nothing to show that the ban on k-12 religious instruction is narrowly tailored to accomplish a compelling government interest.

      The government actually has to show that 1) k-12 religious schools are spreading the virus, and 2) spreading it more than would happen if the kids were not in school, and 3) there isn’t a more narrowly tailored solution to keep the schools operating.

      Merely shutting down more schools doesn’t do meet any of those requirements.

    7. That’s the big problem and something courts need to hammer on. In March when it first hit, it was fine for Governors to exercise their emergency powers for a LIMITED time. That time is supposed to halt the emergency or at least handle it UNTIL the legislature can convene. Instead, its 10 months into “15 days to flatten the curve!” and the Governors are still exercising “emergency” powers.

      Courts need to strike down any “emergency” ruling that was not set for a short time and not fully authorized by a legislature.

  2. It appears that the free exercise clause is becoming a kind of “get out of jail free” card. And, if “allowing religious institutions to keep [doing X] while barring secular institutions from doing so may well violate the Free Speech Clause and the Establishment Clause” is the case, it becomes a “get out of jail free” card for everyone else as well.

    I really wonder what the Founding Fathers would have that thought of that.

    1. This is another example of a religious group getting special treatment. If it is legal to keep secular K-12 schools closed (and this ruling does not say otherwise) then it needs to be legal to keep religious ones closed also. Comparing religious schools to pre-schools and colleges is bunk.
      Looking at a broader perspective, I think it is very dangerous to our society to give religious organizations special privileges to pick and choose what laws they want to follow.

      1. The way to make it equal would be to stop violating the (not-First Amendment protected) rights of all the other kids in the non-religious schools.

      2. I don’t necessarily agree that K-12 secular schools are the right comparison.

        The reason K-12 schools are closed is to protect public health. Under Lukumi, if allowing some secular schools to be open endangers public health to the same or greater degree than opening K-12 religious schools, then the regulation is not generally applicable. Perhaps the state can demonstrate that public health is not endangered to the same degree with open preschool or universities. If so, then K-12 secular schools are the right comparison. But if not, then it strikes me secular preschools and universities are an apt comparison.

    2. This kind of bank-shot into lawlessness is such an obvious problem with the argument that I can’t believe we’ve come to this point.

      Gorsuch, Barrett, Alito – these chuckleheads think they’re innovating with a new area of Free Exercise jurisprudence that doesn’t overrule Employment Div. v. Smith outright but will saddle it with an astonishing new degree of incoherence. Scalia’s they are not. Such a sad time to be living in.

    3. The issue is the special designation of “essential services”. 100 people in a church that has a capacity of 500 is deadly. But 500 people in Home Depot are immune. While the Tru Value, down the street, selling the same mix merchandise is not essential. Buy your shoes at Kohls with 250 of you closest friends is safe enough, but not the shoe store on main street, that never has more than 5 customers at one time, because its a death trap.
      The govt is the one granting and denying special treatment, with no consistent rational parameters.

    4. I really wonder what the Founding Fathers would have that thought of that.

      “Congress shall pass no law…”

      The People gave government the value judgement it shall use on various rights, when they created their government.

      1. Exactly.

        And the worst part of this is the presumption that if the religion balances its sincere interests versus the public good once, then it waives the former for all time. That is bullbleep.

        And likely to lead to religious extremism as they won’t ever balance the former, ever, for anything — because of the consequences.

        1. You assume that we are balancing public goods. We are not. There is no scientific evidence closing schools helps stop the “pandemic”

          1. Only a dipshit would question whether this is a pandemic.

            Congratulations on your well-deserved title.

      2. Yes, and then many of those very same constitutional framers subsequently went to Congress and passed the Alien and Sedition Laws. Of course they didn’t have comment sections in law blogs to guide them.

        1. They didn’t include these prohibitions because they thought nobody would ever be tempted to violate them. They included them because they thought there WOULD be a temptation to violate them.

          Having a bill of rights is generally not an expression of trust that the government will be doing the right thing.

    5. Yes that’s the point of those clauses. The Founders would have loved it, because it was specifically designed to stop tyrannical leaders single handedly violating religious rights – like Governors are doing now.

  3. Concluding that the law here was not facially neutral and generally applicable, because it distinguishes between K-12 schools and universities, is almost absurdly ends-driven and nonsensical under Employment Div. v. Smith. A lot of inappropriate second-guessing of the public health determinations of a coequal branch, too. Tatenhove should be ashamed of himself.

    1. SimonP: How do you think Maryville Baptist Church, Inc. v. Beshear (6th Cir. 2020) bears on that? Judge Van Tatenhove is bound by the Sixth Circuit’s caselaw, and how it interprets the Supreme Court’s caselaw.

      1. It strikes me that Maryville applied the “most-favored nation” standard, which would effectively reverse Smith. That being said, Tatenhove is bound by Maryville. I fear that SCOTUS will endorse the most-favored nation standard in Fulton.

        1. Josh R…The state made the favored class distinction. Not the religious schools. Now the state must justify why religious organizations are not included in that favored class. There is nothing wrong with saying a specifically enumerated right is protected.

          1. Under the “most-favored nation” standard, you are right. I think that standard is misguided.

            1. Of course you do. You want to bow to your “public health” masters. Doesn’t matter if they have evidence, just that they say it. Doesn’t matter if they impact rights, just that they say it .

              1. Completely true.

                We all just secretly want to be obedient servants of our masters. It isn’t about public health at all.

                We just can’t handle living our own lives. We’re all immensely thankful for a pandemic which has killed more than a quarter-million Americans and are thankful someone can finally tell us what to do.

                Something happened in the transmission of DNA from Patrick Henry, the 1st, which resulted in a markedly less-intelligent human being.

      2. Maryville seems to follow the same line that other courts have been following, finding that COVID-shutdown laws are not “generally applicable” when they permit certain mass gatherings of a “secular” nature, provided safety guidelines are followed, but categorically prohibit mass gatherings of a “religious” nature, even if the same safety guidelines could be followed.

        That does not seem to be the fault that Tatenhove discovers, here. This is not a law that allows public or secular K-12 schools to open, but not religious; it’s a law that restricts all private K-12 schools (with public K-12 schools regulated under a separate framework). The failure to be “generally applicable” relates solely to a distinction that has nothing to do with religion, and does not have a disparate impact on the basis of religion – it has to do with the nature of the underlying activity.

        If Tatenhove’s standard is the one to apply, then it would allow religious institutions to cite almost any categorical distinction in how activities are regulated as negating a law’s “generally applicable” nature. Suppose in Maryville, for instance, that Beshear were to revise the shutdown order so that all mass gatherings – religious or secular – would be permitted to 25% capacity, provided that certain safety precautions are followed. Under Maryville, that seems like it should cure the constitutional defect. But suppose further that Beshear’s order distinguishes between “mass gatherings” – call them, “gatherings of 10 or more people, indoors, for a period of 30 minutes of more” (typically concerts, film showings, stand-up performances, church services, restaurants, etc.) – and “transient gatherings” – call them, “any gathering of people that is not a mass gathering” (so, typically, smaller gatherings, short-term gatherings, the sorts of “gathering” that happens in a retail store, grocery store, or indeed any kind of religious situation that operates similarly). Suppose that Beshear’s order regulates transient gatherings differently, because these are situations that pose different kinds of COVID risks (and may be less risky generally). The order provides a higher percentage capacity cap for transient gatherings, in accordance with the judgment that such gatherings are less likely to promote transmission of the virus.

        It would seem silly, under Maryville, to argue that Beshear’s so-revised order would fail to be “generally applicable” due to the distinction between “mass gatherings” and “transient gatherings.” But that is precisely the claim that Tatenhove seems to invite. Following the reasoning that you’ve cited in the OP, it would seem that churches chafing under the “mass gathering” restrictions would need only to convince Tatenhove that the mass/transient gathering distinction isn’t sufficiently defensible, on the science, to make the point that the restriction isn’t “generally applicable” within the meaning of Employment Div. v. Smith.

        But that’s not how any of this works. Religious K-12 schools aren’t singled out because they’re religious. They’re singled out – along with other K-12 schools – because they present different kinds of infection risks. And while the science on the risks actually posed by K-12 schools is quickly evolving – experience may be showing that they’re not as risky as originally supposed, for instance – that is the sort of judgment that executive and administrative officials should be allowed to make, and not second-guessed by a judge on a quest to achieve a particular outcome.

        Tatenhove cites Maryville perfunctorily but fails to take heed of the actual argument or standard it lays out. It is surely binding on Tatenhove, but not on this point.

        1. If Tatenhove’s standard is the one to apply, then it would allow religious institutions to cite almost any categorical distinction in how activities are regulated as negating a law’s “generally applicable” nature.

          This is the “most-favored nation” standard, and I think Maryville can be read to endorse that standard.

          I agree with the rest of your analysis that the standard conflicts with Smith and normatively is wrong. Based on Eugene’s amicus brief in Fulton, I’m pretty sure Eugene agrees with you as well. However, Tatenhove is constrained by Maryville.

          1. This is the “most-favored nation” standard, and I think Maryville can be read to endorse that standard.

            Given that the opinion is high on rhetoric and rather cursory in its legal analysis, I suppose different readers can take away different conclusions from that opinion.

            But, no, I don’t agree with this assessment of Maryville. By its terms, Beshear’s order fails to be “generally applicable” because it restricts religious services while not similarly restricting other, secular businesses that engage in similar kinds of activities to religious institutions.

        2. The flaw in your argument is that you seem to think that the government can curtail any constitutional rights it likes as long as it cracks down on any analogous behavior.

          It’s a bastardization of Smith’s holding that if the government prohibits some behavior, that same behavior can also be prohibited as part of a religious ceremony, to extend it to say constitutional rights can be abridged because similar non-protected behavior can be curtailed. Peyote consumption can be outlawed whether it is for recreation or religious rites. Speech may be somewhat regulated for a real estate seminar, but not for religious instruction.

          1. The distinction you make between constitutional rights and similar non-protected behavior does not exist with respect to religion. There are no behaviors that are protected because they are religious.

            You properly described Smith’s holding re: Peyote.

            Your last sentence mashes forum with purpose and doesn’t make a lot of sense.

            1. Ok then, there is no constitutional right to gamble at a casino, but there is a right to freedom of worship. Closing casinos would only need to pass the rational basis test, but closing churches needs to be narrowly tailored to a compelling government interest.

              1. Does the right of freedom of worship (actually, free exercise of religion) include disobeying a neutral and generally applicable law that incidentally burdens worship? The text doesn’t answer that question one way or the other.

                1. Well first of all this particular case is about religious instruction, and the regulation doesn’t incidentally burden religious instruction, it forbids it.

                  1. No, it doesn’t. Maybe it forbids in person religious instruction, but it certainly doesn’t forbid religious instruction.

    2. No its exactly correct. And the point of the courts ARE to second-guess “public health” determinations that are made by unelected people without any evidence that their measures actually solve the problem.

  4. The anti-religion bigots are really coming out of the woodwork lately.

    1. Saying that religious K-12 schools have to abide by the same health requirements as secular K-12 is in no way anti-religion.

      1. Why should a private school have to abide by government rules for government schools?

        As I read this, the public schools have the same in-person benefit the private schools do, but the public schools are owned by the state and therefore have no right to petition against their owner.

        The state is restricting its own schools with rules the regular public doesn’t have to follow.

        The private schools do not answer to the state any more than private people do.

        1. Private schools are closer to private businesses then individuals. And there are many health regulations that private businesses have to abide by. But that is not the issue in this case.

          1. So long as those regulations do not interfere with the owner’s Constitutionally guaranteed rights, fine.

            In this case, these aren’t even regulations passed by the legislature, but orders from the governor. He only has the right to order his own staff, including public schools.

            His power does not extend over the people unless a law is passed by the representatives of the people and money allocated to him, to allow that.

            Even if the legislature voted for it, I believe from reading the verdict, that there would need to be some significant changes for the law to survive challenges in court.

            1. Jeb, if their posture with regard to contagion is substantially similar, exactly which kind of K–12 schools are under consideration ought to make no difference at all. The emergency powers exercised by governors and state legislators ought to be treated as generally applicable laws, to be tested legally only against demonstrable need for exercise of such extraordinary powers. If one kind of schools meet the test, and the other kind of schools is found to be similarly situated on the basis of the same test, that ought to end the argument.

              Arguments based on the 1A—made on behalf of empowering religionists to ignore generally applicable laws during a public health crisis—are arguments in favor of establishing religion. Even the Supreme Court has no legitimate constitutional power to overturn the Establishment clause. The question which looms now is whether a Court majority thinks it has the political power to do it.

              1. “Generally applicable laws” get no free pass by the First Amendment, even during a crisis. Government should have to justify these crisis regulations against challenges.

                And this is not establishing religion. It is merely doing what the constitution demands: stop government from stepping on religion. Or speech.

                There’s a hidden anti-religion vector in the concept of “generally applicable laws” getting the honor of stepping on religion. That should never be accepted, and should always be something to challenge in court.

                1. Look, I am more suspicious about the doctrine of “generally applicable laws” than some here, but claiming that Scalia was “anti-religion” is nutty.

              2. The emergency is over, lathrop. A disease with an overall survival rate of 98%+ is no emergency, by any stretch. The ’emergency powers’ argument is gone. If the state makes a favored group distinction, as they have done here, they must then constitutionally justify why religious organizations are not a part of that favored group. That is not unreasonable, given our religious free exercise rights and speech rights are specifically enumerated.

                1. Everybody into the water! The emergency is over. There are no sharks to worry about.

                  The 98% survival rate has given us the third-leading cause of death in the USA in 2020.

                  1. LOL = Jaws reference

                  2. The 98% survival rate and counting any death from any cause as a Covid death if the person tested positive, or had symptoms that could plausibly be Covid.

                    Literally, you’ve got people dying in car accidents or hospice being listed as Covid deaths. It’s not a number of people who died of Covid, it’s a number of people who died with Covid.

                    1. The excess number of deaths in 2020 is so far about 278,000. Occam’s razor informs us why.

                    2. I would assume that closing the hospitals to elective procedures like cancer treatments or heart surgery could have boosted non-Covid deaths a bit. If it didn’t, what’s the point of those procedures?

                    3. Perhaps other deaths went up a bit. But, lacking evidence they wen up more than a bit, Occam’s razor applies.

                    4. What is the absolute number of additional deaths?

                2. Not this stupid argument again. Even if you’re right about the survival rate, (1) a 2% IFR is very bad for a very contagious disease, and (2) we do not measure the effect of diseases solely by whether one dies from them.

                  1. Good luck convincing them of #2. They don’t care about the fatalities, which strongly infers they don’t care about the long term health problems of those who recover.

                    1. Jason, I suggest a lot of right-wingers don’t worry about disease at all. They worry instead about government power. Disease matters to them only insofar as it threatens to justify use of government power, for public health measures. Perversely, from a movement conservative perspective, that places public health among the most menacing of all government activities.

                      Historically, public health policy has delivered more public benefit, more broadly, than practically anything else government does. And it has done so with favorable cost/benefit ratios, and only tiny adverse consequences—except from a doctrinaire right-wing perspective—where count government success itself counts as an adverse consequence.

                      So, in movement conservatives’ distorting fun-house mirror, public health policy is dreadful! Historically, public health measures have delivered a practically irrefutable critique of right-wing doctrine that government action is always worse than private, free-market solutions. And the Covid-19 phenomenon has proved the worst of all.

                      With Covid-19, happenstance and perverse politics combined—in many states and across broad regions—to deliver something like a natural experiment—a comparative evaluation of pandemic laissez-faire vs. pandemic management by government-run public health policy. And laissez-faire results emerged from the experiment as catastrophically worse.

                      Hence the astonishing, benighted right-wing follow-on. If government public health policy works, and risks becoming a popular success, then everything possible must be done politically to torpedo government public health policy. If health statistics emerge, and show large comparative advantages for government public health policy, there is no choice. Those statistics must be suppressed to the greatest extent possible, and lied about otherwise.

                      That is what you have been seeing in news accounts every day. That is what you see on this blog, in comment after comment from virus minimizers. Because they are always doctrinaire, they are never ashamed.

                    2. “And laissez-faire results emerged from the experiment as catastrophically worse.”

                      So, you’re saying NY and NJ approached this in a laissez-faire manner, while the states towards the bottom of the list were rigorously state run? Please, spare us the data free assertions.

                    3. Brett, you’re a professional cherry-picker in need of psychological counseling.

                      Has it ever (even once) occurred to you that the epicenter of the beginning of our problem with COVID might have higher death rates because we didn’t know much about how the disease was spreading, or when people could spread it, or how to mitigate the symptoms enough to save tens of thousands of lives?

                      Stephen’s “data-free” assertions are more logical than your assertions WITH data, because you don’t analyze anything.

                      You don’t THINK.

        2. The state is restricting its own schools with rules the regular public doesn’t have to follow.

          Conversely, the public schools have representation at the decision making table that the religious schools don’t (and legally never could). Imagine the outcry if the state department of education included paid Priests for a division of Catholic education, etc…

          1. Religious schools are run by people who refuse to vote? Nobody in Government practices religion? Do tell!

      2. Except its saying that the secular ones DON’T have to follow the same one.

        There is also the fact that there is no evidence that the requirements will work.

    2. Jimmy, anti-religion is as respectable an opinion as pro-religion. It is not more bigoted, nor less Constitutionally protected, than Darwin’s theory of evolution.

      1. Anti black is as respectable as pro black

        1. Well, that’s true: The zero sum nature of racial discrimination implies that pro-black discrimination is the same as anti-(not black) discrimination, just as pro-white discrimination is the same as anti-(not white) discrimination.

  5. I agree with the commenters who say that secular private schools should also have the right to hold in-person classes — and Prof. Volokh says so, too, based on the non-religious rights protected by the 1st A.

    On a different but related note, I think too little attention is paid to the difference between the Covid lock-downs and traditional quarantines. In a traditional quarantine, people who are sick or thought to be sick are isolated so that they won’t infect well people. In Covid lock-downs, healthy people are prohibited from going into public places (or their liberty to do so is limited) so that they won’t be infected by sick people. (Yes, the lockdowns apply to everyone within the scope of the order, so they do also apply to sick people as well as healthy people, but only a small percentage of those covered by the lockdown are sick, so the vast majority of those affected by the lockdown are well.) It seems to me that depriving a healthy person of normal liberty in order to prevent him/her from contracting a disease is significantly different from depriving an infectious sick person of liberty in order to prevent him/her from infecting others.

    1. Your argument is very common, but also wrong. With covid, there is no way (without mass testing) to know who is contagious and who is not based on if they appear to be healthy. Asymptomatic and pre-symptomatic people are contagious. It is that fact, and that so many people ignore it, that has allowd covid to spread.

      1. Covid is here.

        Deal with it and live your life as humans have for centuries. If you are afraid of getting sick, isolate as much as you want/need to.

        Your fear does not give you any rights to power over anyone else.

        Thinking it does is delusional. Acting as if it does is cowardice.

        1. By that logic, we shouldn’t have speed limit laws and people who are afraid of of speeders should not drive. That strikes me as quite wrong.

          1. A town in Germany removed all traffic signs, and ended all car crashes.

            1. Both of your statements are a lie.

              Bohmte did not remove all traffic signs, and their experiment did not end all car crashes.

              Google > you.

        2. The shutdowns are to promote Chinese Communist Party interests in weakening our economy. The tech billionaires want access to its market and want them happy. One has to note, the tech billionaires made an additional $trillion in profits over that expected in 2020. Their media and their Party, the Democrat Party, are deeply hurting our nation for the purpose of enriching them.

          1. There are so many ways in which this comment is stupid (but then again, there are so many ways in which David Behar is stupid, including the fact that he’s going to claim that this comment “violates the fallacy of irrelevance,” even though a fallacy is not something that can be violated). Weakening the U.S. economy is bad for China, not good for China. Economics are not zero sum.

        3. Let’s go back to when this started, to the dismay of both sides.

          Here’s the game plan: keep fragiles safe, don’t overwhelm ICUs, hope for a vaccine, but otherwise let it spread towards herd immunity.

          That’s it. Nothing has changed. Hyperventillated change by officials that it’s about keeping you from dying, sans fragile or ICU concerns, was noted at the time, and it was in service to politicians seeking office wanting panic to serve their goals.

          Get people scared, ride to their rescue. “Mayor, you will have saved the lives of millions of registered voters.” — Peter Venkman

          Or you will have millions imagining you saved their lives by converting this from the plan into being fearful for your own life.

          1. Krayt, it takes a special kind of jerk to minimize pandemic deaths of more than a quarter-million people in less than a year. You shouldn’t make it worse by lying about what happened. Only, perhaps, in Fox News fantasy was it part of the original plan to let the pandemic spread and create herd immunity. Outside policy-making circles, a few extremists advocated that. Nationwide, experts actually advising on policy denounced those suggestions as irresponsible, and certain to result in otherwise avoidable mass deaths.

            Nowhere in this nation was any such policy openly announced and systematically followed. Where it may have been attempted covertly—by especially benighted politicians—they were time and again forced to back off by the accelerating catastrophes which their policies of neglect promptly delivered.

            It is an unfortunate characteristic of public health policies that when they succeed, the results are measured principally by damage avoided—which means that among unobservant, stupid, or hostile bystanders, it is easy to claim public health measures don’t work.

            I think you probably ought to be numbered among that last sub-group, the hostile ones. Like many right wingers, you seem to fear government policy success more than you object to government policy failure. That is why American right wing politics has devolved to little more than a program to cripple government at every turn, lest by acting government prove useful and build widespread support. To right winger opposed to government, government success becomes the ultimate catastrophe.

            The pandemic has demonstrated beyond question the malignant and deadly consequences inherent in that destructive right-wing cynicism. Which is why you now find yourself lying about the consequences of the pandemic, despite the fact that at its worst it scattered corpses in the streets of major cities by the thousands, and it is beginning to do so again.

            You should reconsider your advocacy.

            1. Oh, give us all a break. He’s right: “Flattening the curve” was sold as a way of avoiding overwhelming medical resources, which could lead to higher mortality rates. It was never about reducing the total number of infections. It could never do that, because we’re not set up to lock things down to the point necessary to extinguish a pandemic.

              Then they moved the goal posts on us, in a classic example of a moral panic, because it’s really, really hard for politicians to be rational about things like this.

              And, let’s face it: Because tanking the economy was useful for making sure Trump lost the election.

              And because a lot of politicians are tripping on letting loose their inner dictators, too. Have you looked at photos of Governor Whitmer lately? She’s developed that same “I’m evil and I’m enjoying it!” grin Chuck Schumer is notorious for.

      2. So isolate the vulnerable. It is a very easily defined group. The number of >70year olds prowling the isle of my local grocery was staggering Wednesday. This is a store that will deliver $100 orders for free, and deliver to your car for free, any order. But the local Catholic Church cant do daily Mass.
        Its almost like the govt goal is not to save lives at all.

        1. As they say, you can’t pee in one corner of a pool. You can’t “isolate the vulnerable.”

          1. Sure we can. They closed off nursing homes, no? You think that the elderly at risk cannot self-isolate?

            We know much more today than we did in March, April.

            1. My brother’s late 70’s inlaws have been holed up in their house for months. They get food deliveries, and are careful while opening them. Once in a while his family goes by and waves to them from the curb. They do video conferences.

              It’s absolutely possible to comprehensively self-isolate if you’re retired.

      3. Exactly how contagious asymptomatic people are is highly debated right now, but the general conclusions are leaning towards the range of “not very” to “not statistically detectable”.
        The ‘pre-symptomatic’ carriers are shown to be contagious, yes.

        Part of the confusion you are showing probably comes from the fact that an asymptomatic carrier can have just as much of the virus in their system as a fully symptomatic carrier. However, by not showing the symptoms – sneezing, coughing, etc – their ability to transmit the disease is greatly reduced. Generally, you have to be swapping fluids with an asymptomatic carrier to get COVID from them. Which is why asymptomatic carriers are responsible for so little transmission compared to symptomatic carriers.

        The presymptomatic phase is different, though, and lumping it in with the asymptomatic carriers is quite deceptive. Adding a 3% infection rate in with a 47% to claim a majority is absurd.

        Did you know that, over the past century, the leading cause of death in the US is clown attacks and heart disease?

        1. We’ve been over this before. The problem is that there is no way ex ante for either the individual or anyone else to know whether he or she is uninfected, presymptomatic, or asymptomatic.

      4. Molly, you say that I can be deprived of my liberty because I can’t prove that I DON’T have Covid. I also can’t prove that I’m not about to rob a bank, so do you claim that that’s another justification for locking me up?

        1. I don’t believe that analogy works because robbing a bank requires an affirmative act beyond being in public, whereas spreading COVID-19 does not.

      5. We know with scientific certainty that the recently recovered are immune and not contagious. Requiring them to be masked or locked down serves no legitimate purpose.

        1. Both false and irrelevant. You’ll fit in well here.

  6. A court purporting to defend private 1A rights ought to meet a burden to show restrictions imposed during a public emergency were in fact imposed to curtail rights, instead of imposed to alleviate the emergency. To do otherwise might strip government of emergency powers altogether.

    Even where rights are plainly at stake, for a court to sift every conceivable analogy—however far-fetched—to try to turn up some inconsistency is simply bad reasoning. On the administrative margins, inconsistencies will prove impossible to avoid. Hence, the choice of any such no-limits process of legal analysis risks predetermining the outcome, regardless of the facts of the emergency.

    Reliance on a net so widely cast might deliver an argument against permitting any emergency powers at all. It cannot do anything useful to distinguish legitimate emergency power exercises from others. If the existence of emergency powers for the political branches is to be conceded, the courts must constrain their own reasoning to keep it within that inherently rights-constraining context. The role of the courts ought to be to guard against arbitrary expansions of rights-constraining emergency powers, whether by excessive prolongation of legitimate emergencies, or in cases of pretextual emergencies.

    It would be a mistake if courts zealous to defend maximal religious liberty decided to do so in disregard of legitimate emergency powers exercised by the political branches.

    1. Indvidual Church congregations are moderating their own activity as needed. The idea a Governor can manage all congregations across ta state just points to the real goal of exercising raw power, not protecting the health of anyone.

    2. A court purporting to defend private 1A rights ought to meet a burden to show restrictions imposed during a public emergency were in fact imposed to curtail rights, instead of imposed to alleviate the emergency.

      They did, early on. Court decisions deferred to the elected branches given the emergency and large amount of unknown, the exact purpose it was intended.

      That is not the case anymore, as we know much more, and legislatures have had time to craft specific legislation (or choose not to).

      So yes, it is high time to start the pullback on emergency dictatorial powers. This is a good thing. History is crammed with executives gaining emergency powers and refusing to give them up, becoming neo-dictators, that George Lucas used the concept as the political intrigue for the prequels.

    3. “A court purporting to defend private 1A rights ought to meet a burden to show restrictions imposed during a public emergency were in fact imposed to curtail rights, instead of imposed to alleviate the emergency. To do otherwise might strip government of emergency powers altogether.”

      This doesn’t take rights seriously enough. In principle restrictions imposed just for the purpose of imposing restrictions, rather than to attain some good, would fail rational basis even without the involvement of an enumerated right. The enumeration of a right must get you something more than THAT.

  7. Let’s stop using the misleading term “public school,” and call them what they are: “government-run schools.”

  8. You may want to read some history. For example,

    Letter “From George Washington to John Witherspoon, 25 August 1783”

    “I now return you Gentlemen my thanks for your benevolent wishes, and make it my earnest prayer to Heaven, that every temporal & divine blessing may be bestowed on the Inhabitants of Princeton, on the neighbourhood, and on the President & Faculty of the College of New Jersey, and that the usefullness of this Institution in promoting the interests of Religion & Learning may be universally extended.”

    George Washington “Address to the Delaware Nation, 12 May 1779” who sent three children to be educated with “us.”
    “You do well to wish to learn our arts and ways of life and above all—the religion of Jesus Christ.3 These will make you a greater and happier people than you are.”

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