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Religious liberty

Sixth Circuit Reinstates Governor's Closure of Kentucky Schools

A district court had held the closure likely violated the Free Exercise Clause; no, says, the Sixth Circuit.


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).

NEXT: Today in Supreme Court History: November 29, 2004

Religious liberty

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76 responses to “Sixth Circuit Reinstates Governor's Closure of Kentucky Schools

  1. I would like to see an analysis of Salerno. Smallest scintilla of government interest beats highest personal civil right.

    1. It is not accurate to call efforts to slow a deadly pandemic a “smallest scintilla of government interest”.

      1. It is if the efforts are obviously ineffectual.

        1. It is a bit circular reasoning to say that the government can’t enforce public health measures because they are ineffective, and they are ineffective because people refuse to follow them in the fist place.

          1. Circular reasoning or no circular reason.

            Does anyone think trying to hide from Covid is a viable long term strategy?
            Does anyone seriously think that Covid can be eradicated via hiding from it?

            Since Covid is a coronavirus, are the “vaccines” really vaccines or are the just going to be marginally effective similar to flu shots?

            1. Far better long term solution is to develop natural immunity in the general population. Intentionally retarding the natural development of the human immune system via hiding will have far worse long term damage.

              1. Pandemic management pointers from poorly educated, superstitious, science-disdaining Americans are always a treat.

                1. “Pandemic management pointers from poorly educated, superstitious, science-disdaining Americans are always a treat.”

                  That’s what makes your comments so entertaining

            2. It worked for some countries, notably China, Vietnam, NZ. It seems that the only thing that stops the virus is a hard lockdown, and not like the “lockdowns” in the US, not even like the lockdowns in Italy or Spain. But the real, true, no holds barred lockdowns in China, where if one person was infected, they would lockdown an entire region of millions for weeks in the strictest way.

              1. The wet dream of the tech billionaires who own the media and the Democrat Party.

              2. Essentially true. We are not set up for the kind of stringent lockdown that would actually be capable of extinguishing a pandemic. That would require everybody to have a month supply of all necessary goods, and businesses to have plans in place to shut down for a month on short notice. For some industries that would be ruinously difficult.

                For a country like China the downsides are overcome by the opportunity to remind everybody that they’re not free, and better not get any ideas that they are. For a country like the US, to attempt something like that for a bad flu would probably trigger a revolution.

          2. We have been under lockdown since mid March in California.

            Have a look at our infection rate at
            And then tell me that public health officials KNOW what they are doing.

            I am afraid we are just witnessing the arrogance of power as much as anything else.

            1. The power-grabbers forgot about flattening the curve the instant the lockdowns started.

              I have always thought it would be useful to require every law, regulation, executive order, and other government edict include an exit strategy; or perhaps more scientifically, falsifiable grounds for its existence. In the case of lockdowns, they would have had to be explicit in their reliance on flattening the curve to justify the initial lockdowns, and then explicit in whatever their current excuse is for maintaining the lockdowns in the face of the curve having long since been flattened.

              As long as courts have “rational basis”, these falsifiable justifications would be generally as toothless as now, but they would at least force these nonsensical claims out into the open, and some would be so transparently irrational that even the most deferential judges would have to admit they had been falsified.

              1. Ah yes. The curve was flattened… for a while and now the state is in a second wave even stronger than the first that was only delayed by the lockdown until July.

                1. Is there a chance that the present surging is caused by the improper disposal of used infected mask being brought into a home and infecting the other residents of the home, due to the transport of Covid 19 on or within the used masks.
                  Would explain late surges, perhaps.

                  1. That would seem to be very unlikely to cause such a very large the virus can only survive for 2 to 3 days on fabrics unless they are under refrigeration. Moreover, I suspect that many people reuse and reuse their masks. Never disposing of them. In contrast hospitals etc do use proper biohazard disposal.
                    Still, it would be an additional pathway that would contribute at least a small amount

                    1. I mentioned that possible problems because to the vast numbers of people wearing masks and bringing it back into the home, I agree that the virus may not live very long but the vast numbers of exposures and the everyday use and possible exposure may actually be sufficient to have a large increase to infection to anyone that might be exposed to the used masks, and this , perhaps coupled with the touching of the masks while being used.

                      Perhaps the forced wearing of the masking problem during June or July this year could be significant change in exposure rates.

                      If possible, I guess I can not figure a way to prevent that exposure except be elimination of masks.

                      It would take a brave politico to suggest that though.

                  2. Is there a chance? Scientifically, there’s no way to say no – but I also can’t say that there is no chance that the sun will rise in the west tomorrow. (The earth’s magnetic poles could flip, for example.)

                    Is it a reasonably likely explanation? Not remotely. The amount of virons that accumulate on the outside of your mask is vanishingly small – significantly smaller than the amount that will settle on your clothes, hair, skin, etc. It is simply not a relevant accumulation site.

                    Far more likely is the fact that
                    1) we are all inside again, increasing our re-exposure to our own virons, thus turning trivial exposures into significant ones.
                    2) we wear more clothes in fall, decreasing our exposure to sunlight and specifically to UVB, thus weakening our immune systems.
                    3) plausibly, we are increasing our re-exposure to our own virons on the inside of the mask because we don’t wash them often enough (though the timing of the increases in different states partially contradicts this hypothesis).

                2. Yeahnope. The real peak in California was in early August, and the state is nowhere near those levels now.

                  See, your mistake is looking at “cases”, not “deaths”. “Case” rates are a function of testing numbers, and we’re testing a lot more people now than when the real peak in infections was. So “cases” look like they’re rising fast.

                  I’ve looked at the death rate curves in many states, and what you’re seeing is that some states had early peaks, in the NE, and the rest of the states slowed down the progress of the disease to have later peaks.

                  Add together all those curves, and it looks like Covid is roaring back, but that’s not true in any one state. Just some of them had early peaks, and some of them are having late peaks. Once you have your big peak, there might be some subsequent little peaks, but it doesn’t come roaring back.

                  I expect that every state will eventually accumulate about the same number of deaths per 100k population, it’s just that some are taking longer than others to get there.

          3. It is a bit open-ended reasoning to claim that lockdowns are necessary because there is a disease which lockdowns can’t and don’t and won’t stop.

          4. That would obviously be circular reasoning, which is why basically nobody who says government can’t enforce specific public health measures because they’re ineffective goes on to give THAT as the reason they’re ineffective. But instead gives other reasons why they’re ineffective, such as, “Children are the least vulnerable part of the population, so applying stringent measures to them will have little effect on transmission.”

          5. If they are ineffective because people refuse to follow them, then the government chose the wrong methods.

            And the government has the burden of proving that is why they are working. Not just stating it.

            Courts should stop this deference. There is no pandemic exception to the constitution.

          6. The suggestion instead implies that one can look to other states who have taken far less restrictive measures and seen the same or better outcomes.

            Are you truly not concerned that the government can declare an emergency ad infinitum and continue to restrict rights despite clear evidence the removal of those rights is not beneficial? How long should we defer to experts on this in the face of evidence to the contrary? Years? Where do you draw the line? Internment camps?

          7. It’s not circular reasoning. Show us the evidence that it worked in practice or it’s not rational to repeat it.
            Leftists: we have this brilliant plan where everyone behaves according to our wishes and some good thing will happen

            Anyone acquainted with reality: people aren’t going to do that. Believing they will is childish.

            Leftists: [tries it anyway]

            Reality: plan didn’t work.

            Leftists: We want to try again! It will work for sure this time. The only reason it didn’t work before is because bad people didn’t do what we planned for them to

            Reality: we told you so

            Leftists: science! Science!!!!! Science!!!!!!!!!!

            Reality: you people never learn

            Leftists: everyone is bad and wrong for not playing along with our ingenious planning assumptions. We’re the heroes!! Science!!!!

            Reality: …

            Leftists: we’re going to censor your news and blacklist you from employment for not going along with our heroic, ingenious schemes for how you must all live your lives. We censor and blacklist and arrest and hurt people and steal elections with fake votes because we’re The Good Guys.

            1. Pretty much spot on. The burden of proof is in those who want to impose their will on the rest of us.

            2. “It’s not circular reasoning. Show us the evidence that it worked in practice or it’s not rational to repeat it.”

              very similar to the argument that socialism has never worked because true socialism has never been tried.

          8. That’s not circular reasoning.

  2. Well, I feel vindicated.

  3. That was quick. How long before SCOTUS weighs in?

    1. Not long. SCOTUS hates it when religious people are prevented from hurting others.

      1. And you and every other collectivist hate it when non-religious people are prevented from hurting religious people.

        1. I don’t want anyone hurting anyone anyone.

          1. Ah …. the kind who doesn’t want incarceration for smoking pot, but does want mandated rehab, and does want incarceration for skipping it.

            1. Nope. As long as they don’t hurt anyone I don’t care what drugs people do, and I don’t want mandated rehab. Now if they hurt someone there should be consequences.

          2. Seemingly happy to deprive kids of a meaningful education though.

        2. I was religious, once, and I know plenty of religious people.

          The idea that preventing people from worshipping in person, in congregation, or from sending their children to receive religious instruction, in person, poses some uniquely “religious” harm is absurd. It’s just not the reality. That our judges are constitutionally and legally required to pretend to the contrary, and that our laws generally extend this same favor, does not change that.

          These people aren’t suffering any harm that the rest of us aren’t suffering, in being prevented from going to brunch with our extended friend circles or celebrating Thanksgiving in a traditional fashion. The people who are being harmed by layoffs occasioned by broad-based shutdowns are suffering a greater injury than your average work-from-home Catholic who can’t engage in the sacrament of Communion some Sunday (the routine and regular consumption of the Eucharist being itself an odd evolution of the sacramental practice, historically speaking).

          These are not unique harms. They are just harms that we can dress up with religious vestments and shuffle in through the First Amendment. That’s all.

          1. “That our judges are constitutionally and legally required to pretend to the contrary, and that our laws generally extend this same favor, does not change that.”

            I am glad that you acknowledge that. Commenters like Jeffrey Sachs don’t. They think only the result matters even if it effectively rewrites the law and the Constitution.

          2. Our laws, starting with the Constitution, reflect value judgments about what is and what is not important. So does every system of laws. Ours happen to be the outcome of a majoritarian political process, but saying that gives them extra moral weight begs the question, since it requires presuming that majoritarian political processes are morally superior. So let me second Prof. Somin’s recommendation of foot voting.

          3. “I was religious, once”

            No doubt. An apostate, whether in religion or regards smoking, often becomes extremely intolerant.

      2. You could move to a country that openly allows religious persecution if you’d like?

        1. Simon would have made a fine revolutiuonary in 1789 France, drowning priests and beheading nuns.

          1. In that case, it sounds like I would fit in with the mass of Reason commenters, who openly enthuse about doing the same with their “communist” and “progressive” enemies.

            At any rate, you attribute to me an animosity for religion I simply do not have. All I ask is not to be subject to religious rule, or a system of laws that favors the interests of the religious over mine, which may amount to the same thing, given time.

            1. “Communist” would be a good analogy to, oh, Thuggee, or Baal worship. It’s not a good analogy to your average modern religion, though.

  4. So, to review.

    1. It’s absolutely critical to close all K-12 public schools, even to the point of infringing upon religious freedom, and the rights to be able to educate ones children in their religion.

    2. But simultaneously, it’s not important enough to close daycares at all.

    3. And simultaneously, colleges remain open. Including, importantly, college sports. For example, the upcoming NCAA basketball game, Richmond v #10 Kentucky Wildcats.

    4. Now, if I wanted to be “particularly” cute, I could point out that college basketball is religion in Kentucky, and by discriminating against more traditional religions, while allowing the basketball religion to meet in person, the state is discriminating against one religion, in favor of another. And I could ask that “can’t they just play basketball virtually”?

    1. 5. But more to the point. The country has a history of treating the freedom of religion more carefully and with additional scrutiny, with several exemptions from “generally applicable laws.”

      From exemptions from military conscription, to exemptions from taxation, to exemptions for alcohol use (under prohibition), the judicial system has long understood that like the freedom of speech and freedom of the press, because the freedom of religion shouldn’t be infringed. That additional scrutiny is needed on generally applicable laws that may infringe upon religion. And this should continue, if our rights are to be guaranteed.

      1. “The country has a history of treating the freedom of religion more carefully and with additional scrutiny, with several exemptions from “generally applicable laws.””

        It was exactly that traditional understanding of the 1st amendment that the Supreme court rejected in Employment division v Smith, and then prevented Congress from restoring in City of Boerne v. Flores.

        1. So, here’s a question for you.

          Under the current “understanding” of the First Amendment, would…
          1. Objections to military service based on religious beliefs be over ridden?
          2. Objections to a unified diet in prison, that may or may not violate ones religious beliefs be over ridden?
          3. Objections to religions being taxed by over ridden?
          4. Objections to alcohol laws being enforced to prevent the serving of wine in temple or church be over ridden?

          I’m just curious, because these are all “Generally applicable” laws and regulations. Ones that often have religious exemptions. But it seems like, under the current court’s “understanding”, those exemptions don’t need to exist, and the Constitution doesn’t actually protect them. Is that right?

          1. Under current doctrine, the Free Exercise clause does not require any of your example religious exemptions, with the possible exception of #3. Tax laws that exempt non-profits but not religious non-profits, would likely not be generally-applicable.

            Religious exemptions can be provided through statute, including RFFAs.

            1. Lovely…

              Under your current understanding, you can have Jewish prisoners eat non-kosher meals…or starve. That’s their choice.

              This is exactly why we have a Free Exercise of Religion Clause.

              1. That’s Employment Division v. Smith for you. The Court decided it didn’t like the idea that religion was constitutionally privileged relative to, say, stamp collecting. So now all freedom of religion is good for is the government not being able to openly and specifically target religion for hostile action. As long as they can come up with a vaguely plausible excuse for getting in the way of religion, they’re good.

              2. What about the prisoners who have a secular basis for not eating meat? Why is their liberty treated as second class?

                1. Because the First amendment is expressly written into the Bill of Rights, protecting religious freedom. And the right to have a secular basis not to eat meat is not.

                  1. There you go again begging the question as to what exactly the Free Exercise clause means.

    2. Do you think judges should be able to apply “strict scrutiny” to governments’ decisions to close K-12 schools, but not daycares and universities?

      1. It would seem that the same level of scrutiny should apply to all such areas of voluntary association. However since K-12 are government imposed obligation, it is not surprising that a different standard might apply.

      2. In regards to decisions that infringe upon Constitutionally granted rights? Yes.

        The Government can close its OWN schools whenever it wants. But shutting down religious education while allowing college basketball games….

        1. Then you’re embracing a constitutional standard that does not currently apply under American law.

          1. You asked what I think. That’s the Constitutional Standard I think should take effect. It’s shifting more towards that way, and away from an Employment Division v Smith type system that would mandate Jewish Prisoners eat non-kosher meals, or starve.

            1. Smith does not mandate that Jewish prisoners not be accommodated by statute or other regulations. It only says the Constitution does not require it.

      3. There is a difference between when government decides to close the schools, universities, and daycares it operates and closing private facilities and curtailing their first amendment rights.

        Strict scrutiny should apply when first amendment rights are infringed, not equal treatment. Freedom of worship is protected, but there is no constitutional right to go to a casino. So merely saying you are treating them the same shouldn’t pass muster.

        1. Kazinski, I’ve seen your other responses to me, as well, and I simply don’t care enough to educate you on your various errors and conflations.

      4. Where are non-religious K-12 schools, universities and daycares mentioned and given specific free exercise right protection in the Constitution?

  5. The libs must have made many sacrifices to Baphomet last night…

  6. Three questions for the “science” affiliationators:
    1. Explain the variation in “science” based rules across the states, cities and countries? (Or, does each jurisdiction have its own “science.”)
    2. Has any executive provided the public with the “scientific” evidence supporting their “science” based actions”?
    3. Would you be kind enough to advise the rest of us what executive actions, if any, you believe to be beyond the law?

    1. The cry of “science” is just a polemic. The science is still unclear and confirmed “data” are still shifting sands.

    2. Explain the variation in “science” based rules across the states, cities and countries? (Or, does each jurisdiction have its own “science.”)

      It shouldn’t come as a surprise to anyone that Republicans have different “science” than Democrats. (See also, this case.)

      1. I can’t speak to Republicans or Democrats as a whole but you’ve made it very clear that you personally don’t have a clue what science really is.

        Here’s a hint. “Science” considers appeals to authority to be a logical fallacy and not a valid source of truth.

  7. The incoming legislature in Kentucky has veto proof majorities.

    Time for the legislature to override the governor who is exercising dictatorial powers.

  8. So much eager glee at the chance to harm innocent children.

    1. The CDC disagrees:

      So much “eager glee” to ignore basic science.

      1. CDC has shown incompetence all year.

        Congrats on harming children for no benefit to anyone. Probably a dream come true for you.

  9. Given how the Governor of Kentucky structured his order, it would have made more sense to assert the right of parents to educate their children as they see fit, as recognized in Pierce v. Society of Sisters (1925). That right appears more impinged than religious rights.

    1. Because Chinese people know how to wear masks?

      1. Because non-democratic governments don’t suffer from moral panics, they have other failure modes, instead.

  10. The place I think the Court’s logic fails is in the statement “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.” I recognize the dangers of trading executive dictatorship for a judicial one and generally judicial restraint is to be applauded. But if the Court is not in a position to rein in executive excesses, who is? Are we truly in a situation where the only remedy for executive overreach is impeachment?