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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.

NEXT: France's Highest Court Orders Easing of Church Attendance Limits

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64 responses to “Sixth Circuit Buries South Bay, but Distinguishes Diocese

  1. “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.”

    The command that no law prohibit the free exercise of religion demands a bit more than the absence of hostility. It would seem to require, (And for most of our history was read to require.) a fair degree of deference to religion.

    Not merely that it be put on a par with stamp collecting or building model trains.

    1. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,…”
      If religious groups get special abilities to opt themselves out of neutral laws, then that (in my opinion) would constitute “establishment” of religion.

      1. How do you feel about Jewish Prisoners being forced to eat non-kosher meals, or else starve?

        1. The Lord of the Hebraics recognizes the Law of Necessity, and that is not a big deal. Jews can eat what is available if necessary. I see them at my Chinese restaurant, Sunday nights, with the pork fried rice.

          1. Thanks David, but we all know that placing the substance in Chinese food renders tref clean

          2. Those aren’t real Jews, but liberal “Jews,” who think that going to shul once a year on Yom Kippur and virtue signaling to their leftist friends and family about their fast on Facebook makes them real Jews.

      2. Let us assume religious groups get special abilities to opt themselves out of neutral laws…

        What church is the government expecting you to be at on Sunday? What state sanctioned punishment awaits you if you do not confess to its orthodoxy?

        That is the Establishment Clause in historical context… allowing religions to establish themselves in our culture is not the same as one being established by the state for the purpose of all citizens being a part of it. Protestants were not pleading special previlages when they attempted to avoid Bloody Mary. Catholics were not pleading special previlages when they sought to avoid the French Razor. If religious schools stay open, it will not create an environment in which your civil rights are impacted in the slightest as a result thereof.

        This weird “a church was allowed to actually act out its faith ergo establishment and it must be stopped at all costs” philosophy that grips many anti-religious people (if you are merely non-religious we are cool) is dangerous and reeks of the Jacobins.

      3. Then you have no idea what “an establishment of religion” means.

        “An establishment of religion” means a state church. Like the Anglican church in England. Several states had them at the time of the founding.

        The 1st amendment made the whole topic of established churches off limits, because the states wanted the federal government to neither establish a church of its own, nor mess with the states having done so.

        Protection of churches falls under free exercise, not the establishment clause. Favorable treatment of religion, so long as it doesn’t distinguish between religions, has nothing to do with the establishment clause.

        1. “Area Man Passionate Defender Of What He Imagines Constitution To Be”

          1. This area man has company.

            irst Amendment and Religion

            “The Establishment clause prohibits the government from “establishing” a religion. The precise definition of “establishment” is unclear. Historically, it meant prohibiting state-sponsored churches, such as the Church of England.

            I go with the “historical” meaning, not the Supreme court’s late alteration of “establishment” to mean mere partiality towards religion in general. 9 of 13 states had established religions at the time, and they didn’t want the federal government interfering or establishing its own.

            1. You’re welcome to go with whatever meaning you like, but don’t confuse your personal meaning of the constitution with the meaning that you’d end up with in court.

    2. Not merely that it be put on a par with stamp collecting or building model trains.

      Not necessarily. It could require precisely what Smith says it requires. For instance, that stamp-collecting motivated homicide and religiously-motivated homicide are treated exactly the same.

      1. Are they? There are a fair number of cases where parents let their children die of treatable illnesses because their religion tells them not to use modern medicine. They are treated far more favorably then parents who are just child abusers.

      2. But in this case there is no possible scenario that religious and secular instruction could be sanctioned criminally, so Smith cannot apply.

        It is pure essence of the constitutionally protected right that is being enjoined here, and it needs a lot more than just a rational basis to justify this transgression.

      3. I’ll agree that the New Baal church doesn’t get a pass on throwing babies into furnaces. Though why they get treated worse in that regard than the church of Margaret Sanger is a bit of a mystery.

        But nobody is throwing babies into furnaces here. Refusing to obey executive branch dictates is not homicide, even if you DO get hysterical. It’s no more risky than a wide range of activities we normally allow.

    3. The era when religion was given deference was only from 1963 (Sherbert) through 1990 (Smith).

      1. Really, it started earlier with Cantwell v. Connecticut in 1940, where the Free Exercise Clause was fully incorporated via the Due Process clause to apply to the states as well.

        1. Until Sherbert, neutral and generally applicable laws were presumptively constitutional.

          1. Context, as always, is important.

            The Jehovah’s Witnesses played a key role in helping to protect our first amendment rights. Two cases illustrate this, Minersville School District v. Gobitis (1940) and West Virginia State Board of Education v. Barnette (1943). Both cases revolved around the Witnesses and their religious beliefs that they not salute the flag, as was “commanded” by all as a generally applicable law.

            The 1940 case went against them. But the 1943 case reversed it. Religious rights, as well as free speech rights were important in the USA.

            A certain “other” country in the 1930’s and 1940’s, by contrast, decided to imprison all its Witnesses for their failure to salute that country’s flag.

            1. Barnette was a Free Speech case.

              1. It was decided on free speech grounds, but make no contention, there was a large contingent of freedom of religion to the case.

          2. Well, duh: Until Cantwell, free exercise hadn’t been incorporated, so had nothing at all to do with state laws. How many federal laws were impinging on freedom of religion prior to that? Not many, I expect.

  2. Just so I’m clear: When a future pandemic occurs, one with say 10000x the lethality & communicability as COVID, conservative & libertarian lawyers will still resist common-sense public health measures as they relate to religious gatherings?

    1. You have to ask?

    2. To me, they already showed their cards with global warming. The conservative movement’s response to any set of facts that might require policy choices they dislike is going to be denial.

      1. As long as climate alarmists oppose nuclear power, there is no point in taking them seriously, because they are not being serious.

        1. Exactly. If I thought the climate would reach a tipping point in ten years, I’d move heaven and earth to get nuclear power plants running as soon as possible. Any alarmist pushing solar and wind is as serious as a wet Kleenex, and they obviously don’t believe their own propaganda.

          I put Al Gore, Hollywood celebrities, and other alarmists in the same category when they have personal jets, huge mansions, expensive yachts, and other carbon-intensive hobbies and toys.

          Let them eat cake, indeed.

        2. I support nuclear power. Indeed, I think any power system that is good enough for France is good enough here.

          The nuclear power issue, however, is not a free pass for you guys to deny global warming.

          1. The nuclear power issue is a damned fine issue to judge which alarmists believe themselves. Any alarmist who does not advocate for nuclear power does not believe anthropogenic global warming is real. I’d say, based soly on a guesstimate from reading news a lot, that 90% of alarmists do not believe in AGW.

          2. Bummer that the same genre of activists that are tweaked about climate change killed the US nuclear power industry.

          3. Actually, it is, because it’s evidence that the people yelling at us about it don’t actually believe what they’re yelling. They’re just con-men.

            Look, telling me it’s a hair on fire emergency doesn’t move me, everything the left wants they call a hair on fire emergency.

          4. Sorry Dilan…

            If you tell us it’s an “end of the world emergency” and then have your President illegally sabotage and end the sole Nuclear Waste Depository program in the US….

            Your “Actions” have to match your “Words.”

            When Gavin Newsom says “It’s a really bad pandemic, everyone stay home”…then he proceed to have his own dinner party out without masks and a bunch of his friends…. Well…

          5. The ‘science’ is settled, no doubt. Labeling of those with opposing viewpoints as ‘deniers’ is intellectually immature, and quite frankly, anti-Semitic. Learn to not tie your pet views to the Holocaust and people may take you more seriously. Your argument that nuclear power being acceptable because France uses it is risible. Nuclear power’s viability stands on its own, not France’s use.

        3. So as long as someone, somewhere opposes nuclear, conservatives are going to pretend climate change is not real?

          Seems consistent.

      2. It’s the party that gave us prayer as a solution for drought. What did you expect?

        1. So what’s your solution to drought? Do you have a fix that’s more effective than prayer.

          Even the IPCC assessment of a link to climate change and drought is “low confidence”, which is science speak for it’s not even more likely than not that droughts are linked to higher temperatures.

          1. Do you have a fix that’s more effective than prayer.

            Wait, that’s the standard for criticising the government’s version of science now? I can’t criticise them for doing something useless because all my solutions are useless too?

        2. When my well ran dry and I needed a new one, the driller asked if I minded if he witched for the location. I said go ahead, can’t hurt, can’t be any worse than me throwing a rock into the air, and he might even have some subconscious cues from the geology, topography, vegetation, etc.

          I’d say the same thing for prayer. Maybe it focuses people on the seriousness and they will find it easier to remember to use less water. It certainly can’t hurt.

          You seem to think it better to discourage prayer, which makes me wonder why you are so afraid of something you claim to be harmless.

          1. I literally took a can of paint, and drew arrows and an “X” marks the spot for where I wanted my well drilled. Well driller came by while I was at work, drilled someplace 40 feet away.

            I’d have complained, except that he hit a bed of gravel that was good for enough water to use for irrigating a field, and my neighbor’s well had silted up twice within days of being drilled.

          2. You seem to think it better to discourage prayer, which makes me wonder why you are so afraid of something you claim to be harmless.

            Not at all. That would be a violation of the separation of church and state just as much as encouraging it.

            What I’m discouraging is a political party that opts for prayer *instead of* science.

        3. At least prayer for drought doesn’t cost the government anything.

          1. Except credibility when it comes to respecting the separation of church and state.

      3. When a future pandemic with 10000x the lethality & communicability as COVID happens, nobody will be allowed to go to the grocery store either. In any case, those extreme restrictions is what it takes to stop Covid, as we saw in China. Not allowing people to all sort of other “essential” activities, but preventing religious services.

        1. You are pretty piss poor at simple arithmetic. Nothing can be 10000x as lethal as COVID-19; it would be more than 100%. At least if we believe the COVID-19 alarmists.

          Or maybe you just like to exaggerate and are a scare monger.

          Either way, I think I will ignore your useless opinion on the matter.

          1. Well, given that the fatality case rate for the under-50 crowd is just under 1/10000, this hypothetical disease would quickly result in the world being reduced to 20-30 million people, almost entirely under the age of 25.

            In other words, there would be no concerns about grocery stores or churches, because there would be no such thing as ‘society’ or ‘nations’ or even ‘civilization’ anymore.
            So, yeah, it’s a pretty terrible example.

        2. The best part about your hypothetical and impossible pandemic? You wouldn’t be bothering people with ignorant drive-by copy and paste comments.

      4. “The conservative movement’s response to any set of facts that might require policy choices they dislike is going to be denial.”

        The Green New Deal includes a jobs guarantee and universal health care.

        1. Why is this form of reasoning so prevalent among the Trumpies and conservatives?

          “Oh you think this is dumb? How about something completely unrelated or at best tangentially related that someone from a different political party did!?”

          It does not make sense. It is not an argument or a way to reach a logical conclusion. It is the way young couples or children fight, though.

    3. No, because they will all be dead from covid-19. The most dangerous plague since Ramses II.

      1. Try the bubonic plague for that distinction. It killed over 20% of the world’s population

    4. In that scenario they would presumably actually be common sense.

    5. As the case fatality rate of SARS-CoV-2 infections is about 0.5%, your 1000x is 100% fatal. Also your 1000% more infectious means that the virus kills off spreads before the virus propagates.

      Choose your hypotheticals more wisely.

      But if some how hanta virus breaks out in NYC, you can bet that DeBlasio waits until half the population is dead before doing anything

    6. “common-sense public health measures”

      Let’s review some of the common-sense health measures we have seen in the last nine months:

      (1) All public gatherings, including businesses and houses of worship, are banned. Except public protests we agree with. Those are not only allowed by encouraged.

      Apparently on the theory that engagement in woke politics grants immunity to the coronavirus. Just kidding. The actual expressly articulated theory was that combatting racism is more important than preventing the spread of the virus.

      In other words, the governing authorities decide that their favored message overrides health concerns, but not yours. “Black Lives Matter” is an important message, “Glory Be To God” is not. And that’s backed up with state authority, including fines and jail.

      (2) A wide variety of activities and businesses are classified as “essential.” Not only the truly essential (such as food supply stores and medical facilities) but such things as bicycle stores and nail salons. But worshipping in your chosen house of worship is not “essential” and is subject to restrictions those “essential” businesses don’t have.

      (3) Political leaders ban family gatherings on holidays such as Thanksgiving, or if not, strongly encourage families not to gather. Those same leaders secretly, or not so secretly, hold dinners with insiders, without even masks or other social distancing. Why one governor even gave a speech that people should not travel to families, and then jetted off to see his family for the holiday.

      (4) Nursing homes, who by their nature house the elderly, who are highly vulnerable to the virus and its effects, are by executive order mandated to take infected patients and keep them there.

      With all this common sense being forced on us, it’s wonder that anyone has survived.

  3. What the Kentucky case did was settle once and for all the issue of whether or not a private school that is organized and operated by a religion is an act of religion, an act of worshiping and an act of relgious activity as opposed to an educational activity. In ruling that these schools are exempt from a legitimate government activity that is promoting the health, safety and welfare of the population the court is saying that they are not schools, they are religion.

    Why is that important? Because these relgious services masquerading as education desire and in many cases get funds from government. And government of course gets those funds from the populace, many of whom do not support the religion of the recipient schools. So as a non-Christian my tax dollars are sent to a religion who beliefs I neither support nor subscribe to. In the eyes of zealots and bigots who believe they have a right to public funds this is called freedom of religion. To me, it is called religious tyranny, and form of theocracy.

    When will it stop? Probably the day a Muslim high school is being built and has a sign out front that says “Your Tax Dollars at Work” See, they are religion but they are not the right religion.

    1. “a legitimate government activity that is promoting the health, safety and welfare of the population”

      Imagine for a second that the government, noticing that some people were poorly nourished, had, instead of offering money so they could buy food, instituted a public kitchen system. And to pay for it had levied taxes high enough that most people of ordinary means could no longer afford to feed themselves, and were forced, like it or not, to utilize the government’s soup kitchens.

      And every time a nutritional fad gained favor with the government, you ended up put on some quack diet, unless you had the resources to pay twice for your food. This year you’d be on the South Beach diet. Next year it would be Atkins. Then you’d be forced onto a keto diet, and when your state legislature voted to not use “Common Keto”, and hired a panel of nutritionists to draft a substitute meal plan, the panel would laugh, photocopy the Common Keto menu, and strike out “Keto” and write in “Low Carb”.

      That’s public schools, in a nutshell.

      “People need to eat” ≠ “Must be provided by government”.

      The churches are not intruding into the government’s domain here, Sydney. The government has usurped what traditionally was a part of private society. The churches, and other private institutions, are just trying to escape that usurpation.

    2. I should add that the system of “public education” was not actually instituted in order to educate. It was instituted in order to indoctrinate. To mold the way children thought into a direction the government thought favorable.

      Sure, they suppose this governmental approved way of thinking will be beneficial to the children. But the goal here is still to take the molding of children’s attitudes and way of thinking away from parents, and hand it to the state.

      And THAT is why ‘progressives’ are so hostile to any form of private education, except where their own children are concerned. Because they use the public schools as indoctrination centers to mold society into something they want, instead of what the public at large might want.

    3. The level of ignorance in your post is astounding. You are entitled to your opinion about religion, not to your own facts.

      (1) A Kentucky decision does not settle anything “once and for all.”
      (2) An activity can be both religious and non-religious at the same time. Educating one’s children in one’s faith is both a religious exercise as well as education. And most religious schools educate in both religious and secular subjects.
      (3) In the U.S., states are constitutionally barred from subsidizing religious education. They can at most subsidize certain secular activities, such as bussing or books. And most states do not even do that.

      1. “And most religious schools educate in both religious and secular subjects.”

        Yes, but the fact that they aver that any restrictions on gatherings are in violation of freedom of religion means that they regard the religious part to be the dominant part, that they are actually conducting religious activities that just happen to be accompanied by secular learning.

        As for the fact that most states do not subsidize religious education, obviously you are not aware of the diversion of tax revenues to sectarian schools in a large number of states. But to re-iterate, once the ‘wrong’ religions start applying for these funds the practice will be severely curtailed.

  4. 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.

    Veering considerably off the beaten track, I was musing the other day about SCOTUS’s defense to the Reinhardt Gambit – “They can’t catch ’em all.”

    Can SCOTUS, when invited to grant hear an appeal from a Circuit panel, simply say “No, we’re not going to hear it at this stage, but the Circuit must rehear it en banc.”

    Wouldn’t have worked with Reinhardt’s 9th, but on some circuits it might save SCOTUS a bit of work.

    1. They probably could say that, there aren’t a lot of limits on what they can say to lower courts if they want to.

      But Reinhardt got away with what he was doing because his circuit was generally in favor of it. A defense against Reinhardtism that only works where it isn’t needed isn’t a whole lot of use.

      1. Up to a point Lord Copper.

        Some Circuits, as I understand it, are less keen on en banc-ing eccentric panel decisions than others. Thus generally sensible Circuits may well be letting go some dubious panel decisons, which make their way onto SCOTUS’s desk. Which potentially clogs up the SCOTUS docket with material which the Circuit could sort out, but chooses not to as a matter of en-bancing policy.

        Thus reducing SCOTUS’s capacity to catch more Reinhardt stuff.
        And encouraging eccentric panels to go for it, because maybe SCOTUS won’t have time to accept the case.

        For every case that SCOTUS can force generally sensible but lazy Circuits to rehear en banc, SCOTUS may free up time to hear one more Reinhardt concoction, and may deter another two panel eccentricities.

        It’s just Delegation 101. Rather than correct all your subordinates mistakes yourself, you insist that they correct their own mistakes, and only present you with an answer they’re genuinely committed to.

  5. The governor’s differing treatment of preschool and K-12 makes little or no sense from a disease prevention measure. Politically it makes a lot of sense. Allowing private and religious schools to remain open would be competition for the the public school teachers union, one of his main supporters.

    1. You hit the bullseye. This is not science, it is politics.

      BTW, love your handle. Can we just call you Triple-A?