The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Sixth Circuit Buries South Bay, but Distinguishes Diocese

"In determining that plaintiffs are unlikely to succeed on the merits of their Free Exercise claim, we also have no need to rely upon either" South Bay or Jacobson


Earlier today, Eugene blogged about Kentucky ex rel. Danville Christian Academy, Inc. v. Beshear. The Kentucky Governor, a Democrat, prohibited in-person instruction at all public and private schools. The Kentucky Attorney General, a Republican, challenged the constitutionality of that order. The District Court ruled before Diocese, and found that the order violated the Free Exercise Clause. The District Court entered a Commonwealth-wide injunction that applied to all religious schools. On appeal, a panel of the Sixth Circuit stayed the injunction.

The sweetest sentence came on the penultimate page:

In determining that plaintiffs are unlikely to succeed on the merits of their Free Exercise claim, we also have no need to rely upon either South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Mem.) (Roberts, C.J., concurring), or Jacobson v. Massachusetts, 197 U.S. 11 (1905).

Amen. No court should have ever relied on those precedents. Earlier this week, I wrote that Diocese marked the end of the South Bay "Superprecedent." So far, so good.

The panel proceeded to distinguish this case from Diocese.

Moreover, the order at issue in Roman Catholic Diocese treated schools, factories, liquor stores, and bicycle repair shops, to name only a few, "less harshly" than houses of worship. 2020 WL 6948354 at *2; see also id. at *4 (Gorsuch, J., concurring). Similarly, the orders at issue in Roberts and Maryville Baptist Church excepted from their requirements airlines, funeral homes, liquor stores, and gun shops, again to name only a few. See Roberts, 958 F.3d at 414; Maryville Baptist Church, 957 F.3d at 614. No such comparable exceptions apply to Executive Order 2020-969. And the exceptions expressly provided for in the order—for "small group in-person targeted services" and "private schools conducted in a home"—are nothing like "the four pages of exceptions in the orders" addressed in Roberts, 958 F.3d at 413. The contours of the order at issue here also in no way correlate to religion, and cannot be plausibly read to contain even a hint of hostility towards religion. Cf. Roman Catholic Diocese, 2020 WL 6948354, at *1.

The panel also looked favorably to Justice Kavanaugh's concurrence.

Justice Kavanaugh has reasoned that, under Smith, 494 U.S. 872, we should look "not [to] whether religious worship services are all alone in a disfavored category, but why they are in the disfavored category to begin with." Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2614 (2020) (Mem.) (Kavanaugh, J., dissenting). Here, religious schools are in the category of "K–12 schools" because the reasons for suspending in-person instruction apply precisely the same to them. See Church of Lukumi, 508 U.S. at 543. Any burden on plaintiffs' religious practices is "incidental" and therefore not subject to strict scrutiny. See Roberts, 958 F.3d at 413. In Justice Kavanaugh's concurrence in Roman Catholic Diocese, he emphasized that, "[i]n light of the devastating pandemic, . . . the State[ has the] authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike." 2020 WL 6948354, at *8 (Kavanaugh, J., concurring). Executive Order 2020-969 does just that. Unlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions were "targeted" or "gerrymandered" to ensure an impact on religious groups. Id. at *1. In addition, while many of the houses of worship in Roman Catholic Diocese could seat well over 500 people, they were subject to attendance caps of ten or twenty-five persons, while retail businesses were not. See id. at *2. There is no comparable harsh requirement aimed at religious institutions here.

The Governor drew a very favorable panel (Moore, Rogers, and White) given the Sixth Circuit's current makeup. I think Judge Moore was wise to cite Justice Kavanaugh. But she completely missed his "most favored" right methodology. She was trying to cert-proof her opinion. It won't work.

Perhaps the Attorney General could seek the equivalent of en banc review of the stay application. I'm not sure if the Sixth Circuit permits such an application for en banc. (The validity of that procedure is an open question in the Fifth Circuit.) Or the Attorney General could seek a stay application from the Supreme Court. I hope the Court can clarify, now or later, precisely what makes a law not neutral. And here we have a slightly different context: religious schools, rather than houses of worship.

On appeal, this case may shake out differently than Diocese. Here, the District Court granted an injunction. The Chief would not have to issue an injunction. He would simply decide whether to stay the Court of Appeals's stay.