The Volokh Conspiracy
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From Kentucky ex rel. Danville Christian Academy, Inc. v. Beshear, decided today by Judges Karen Nelson Moore, John Rogers, and Helene White (see here for the District Court order which this reverses):
This is an appeal from a preliminary injunction, primarily based on the Free Exercise Clause of the First Amendment, against enforcement of a COVID-19-related executive order by Governor Andrew G. Beshear prohibiting in-person instruction at all public and private elementary and secondary schools in the Commonwealth…. The order excepts from its requirements "small group in-person targeted services" and "private schools conducted in a home solely for members of that household." The order also excepts, by omission, both preschools and colleges or universities.
As the Governor explains, elementary and secondary schools pose unique problems for public health officials responding to the COVID-19 pandemic. Compliance with masking and social distancing requirements is difficult to maintain, and students receiving in-person instruction must in any event remove their facial coverings to eat. The Commonwealth is particularly vulnerable to these problems, as it "leads the nation in children living with relatives other than their parents—including grandparents and great-grandparents, who are especially vulnerable to the disease." …
"The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, provides that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….'" Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) (alteration in original) (internal citation omitted). "On one side of the line, a generally applicable law that incidentally burdens religious practices usually will be upheld." Roberts v. Neace (6th Cir. 2020) (citing Emp. Div. v. Smith (1990)). "On the other side of the line, a law that discriminates against religious practices usually will be invalidated because it is the rare law that can be 'justified by a compelling interest and is narrowly tailored to advance that interest.'"
Executive Order 2020-969 applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest….
Recent binding and persuasive authority does not compel a contrary result. In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the challenged COVID-19 order restricted attendance at religious services. In Roberts and Maryville Baptist Church, Inc. v. Beshear (6th Cir. 2020), the challenged COVID-19 orders prohibited attendance at drive-in and in-person worship services. The orders at issue in those cases, applying specifically to houses of worship, are therefore distinguishable.
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. 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. 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. 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.
Justice Kavanaugh has reasoned that, under Smith, 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." 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. Any burden on plaintiffs' religious practices is "incidental" and therefore not subject to strict scrutiny. 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." 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. 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. There is no comparable harsh requirement aimed at religious institutions here….
We are not in a position to second-guess the Governor's determination regarding the health and safety of the Commonwealth at this point in time. See Roman Catholic Diocese ("Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area."). Because Executive Order 2020-969 is neutral and generally applicable, we also need not address the Governor's argument that the order is in any event narrowly tailored to advance a compelling governmental interest. That requirement applies only if the challenged restriction is not neutral and generally applicable. 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 (2020) (Roberts, C.J., concurring), or Jacobson v. Massachusetts (1905).