Making Sense of Danville Christian Academy v. Beshear

I suspect the Court punted this Kentucky COVID case to avoid jumping the gun on Fulton.

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Thursday evening, the Supreme Court decided another COVID-19 case on the shadow docket. The latest appeal, Danville Christian Academy v. Beshear, came from Kentucky. Here, the governor closed down all schools, secular and non-secular alike. Yet, other businesses were allowed to remain open. The district court preliminarily enjoined the policy. On appeal, the panel stayed the injunction based on a flawed reading of Diocese. At the time, I wrote:

[The Kentucky] 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.

The Supreme Court did the exact opposite of what I hoped for. First, the Court refused to decide the case on the merits, because the Governor's order would expire less than 24 hours later (December 18). Second, the Court offered a tantalizing tease about how to review COVID-19 restrictions of religious schools. Justices Alito and Gorsuch dissented. They vigorously disagreed with the Court's approach to the first question. And Justice Gorsuch seemed to be offering some tea leaves about how the latter question ought to be answered.

I fear the Danville Christian Academy was collateral damage in the battle over Fulton. The Court didn't want to opine on the thorny Free Exercise clause issue, so the Justices found a creative way to punt the case away. In the short term, Governor Beshear won the game of whack-a-mole. And he likely will not reimpose this policy after a brush with defeat. In the slightly-longer-term, the Court kept its powder dry concerning the definition of a "neutral" law under Smith.

Let's beak down the Court's unsigned four paragraph opinion.

First, the Court observed that the order will expire in one day, and there is no evidence the order will be renewed.

On November 18, the Governor of Kentucky issued a temporary school-closing Order that effectively closes K–12 schools for in-person instruction until and through the up-coming holiday break, which starts Friday, December 18, for many Kentucky schools. All schools in Kentucky may reopen after the holiday break, on January 4. . . . The Governor's school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed.

Given the unique circumstances here, the Court denied the application without prejudice:

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

The Court engaged in a bit of bait-and-switch here on the timing. True enough, when the opinion was rendered, the Governor's edict was about to expire. But this case has been pending for some time. In dissent, Justice Alito explained the chronology:

As I understand this Court's order, it is based primarily on timing. At this point, just a few school days remain before the beginning of many schools' holiday break, and the executive order in question will expire before classes would normally begin next year. The Court is there-fore reluctant to grant relief that, at this point, would have little practical effect.

I understand that reluctance, but in my judgment, it is unfair to deny relief on this ground since this timing is in no way the applicants' fault. They filed this action on November 20, 2020, just two days after the issuance of the Governor's executive order. And when, on November 29, the Sixth Circuit granted a stay of the order that would have allowed classes to resume, the applicants sought relief in this Court just two days later, on December 1. It is hard to see how they could have proceeded more expeditiously.

The application was filed with Circuit Justice Kavanaugh on December 1. He requested a reply on December 4. This three-day timeline was faster than the usual six days. (At some point, I want to write about how Circuit Justices can affect the outcome of pressing cases by deviating from the usual six-day response time.) Danville filed its reply on December 8. When the Court ruled, the briefing had been complete for nine days. During that time, the Court GVR'd COVID cases from Colorado and New Jersey. The Court could have easily GVR'd the 6th Circuit's panel, and stated that it did not faithfully apply Diocese. But the Court did not choose that path.

And please don't tell me it took the Justices nine days to write a four paragraph opinion. Indeed, this per curiam could have been banged out before the reply was even drafted. Rather, I suspect the Court held this order till the day-before-the order expired. Now, the case is not-quite-moot, but who needs to decide this important question if the kiddies go home for Christmas break on Friday?

Call me cynical. But I see manipulation of timing on the shadow docket on a fairly consistent basis. For example, in FDA v. American College of Obstetricians and Gynecologists the Court punted the case away, hoping it would go away. Now the case is back at the Court. These punts are transparent, and seldom work.

Second, the Court included a strange, drive-by merits non-ruling:

The Order applies equally to secular schools and religious schools, but the applicants argue that the Order treats schools (including religious schools) worse than restaurants, bars, and gyms, for example, which remain open. For the latter reason, the applicants argue that the Order is not neutral and generally applicable for purposes of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). Several amici supporting the applicants argue in the alternative that even if the Order is neutral and generally applicable because it treats religious schools the same as secular schools, Smith still requires heightened scrutiny when the "application of a neutral, generally applicable law to religiously motivated action" also implicates "the right of parents" "to direct the education of their children." Id., at 881 (citing Pierce v. Society of Sisters, 268 U. S. 510 (1925); Wisconsin v. Yoder, 406 U. S. 205 (1972)). The applicants did not squarely raise that alternative Smith argument in the District Court, the Sixth Circuit, or this Court.

What is going on here? Why on earth would the Court see fit to flag arguments raised by amici in an unsigned per curiam opinion from the shadow docket? The Court almost never acknowledges arguments raised by amici–especially when the parties did not "squarely raise" that issue. Hell, the Court routinely uses arguments from amici without citation. What is going on here? And who were these amici (plural)? Well, by my count, one amicus raised this argument: the Becket Fund for Religious Liberty. Another amicus cited the Becket brief.

Let's dig in here. Employment Division v. Smith held that neutral and generally applicable laws that burden religion would usually be reviewed with rational basis scrutiny. But there was an important exception: laws that burdened so-called "hybrid" rights, which involved the Free Exercise rights, in tandem with another right, would be reviewed with strict scrutiny.

Justice Scalia explained:

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. ConnecticutMurdock v. PennsylvaniaFollett v. McCormick, or the right of parents, acknowledged in Pierce v. Society of Sisters (1925), to direct the education of their children, see Wisconsin v. Yoder (1972) (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school). FN1

FN1: Both lines of cases have specifically adverted to the non-free exercise principle involved. . . . Yoder said that "the Court's holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a 'reasonable relation to some purpose within the competency of the State' is required to sustain the validity of the State's requirement under the First Amendment."

The so-called "hybrid rights" element of Smith has been heavily criticized. My sense is that Scalia made up this dichotomy to account for older precedents that did not use rational basis scrutiny. Still, the Court never squarely decided the status of Yoder in the wake of Smith. The Becket brief flagged this exact issue. Here is a summary of the argument:

Because the Governor's actions interfere with the right of parents under the Free Exercise Clause to direct "the religious upbringing and education of their children," this case comes within the ambit of Wisconsin v. Yoder, not the general rule of Smith. As Smith itself made clear, the Yoder line of precedent—which stretches back to at least Meyer v. Nebraska in 1923—governs cases concerning religious education. And, because the Governor has prohibited religious schools from operating, under Yoder his restrictions are subject to strict scrutiny, regardless of their neutrality or general applicability.

I am quite familiar with this argument. For purposes of full disclosure, I am co-counsel with Becket in another case challenging a COVID restriction on religious schools. And we raised a very similar Yoder argument.

Again, the Court declined to rule on this Kentucky case primarily because of the timing. Why, then, did it see fit to weigh in Becket's brief, especially where that claims was not "squarely" raised? Usually, the Court would be content to talk about the equities, but stay silent about the merits. What is going on with this paragraph?

I think something may be afoot with respect to Fulton. Perhaps the Court is flirting with using the hybrid rights theory to dump the case on narrow grounds. I do not think that there are five votes to overrule Smith. And deciding this case in the context of Smith would require defining what exactly "neutral" and "generally applicable" means. The Court elided over this issue in Diocese. It is a hard issue. Perhaps the Court can decide these cases with a one-off theory, like in Masterpiece Cakeshop.

One way to resolve Fulton is to argue that the case combines the Free Exercise Clause, plus the substantive due process right at issue in Meyer v. Nebraska. Bear with me here. This path is not obvious. Meyer held that the Fourteenth Amendment protects the right to "establish a home and bring up children." Later, the post-New Deal Warren Court laundered Meyer as a First Amendment case. (It wasn't). In theory, at least, one could argue that Catholic Charities is exercising something of a hybrid right. That is the right of free exercise, coupled with the right to rear children according to religious principles. Granted, Fulton involves a church, rather than parents. It isn't entirely clear that churches would have the same substantive due process right. But then again, Frank Meyers was a teacher, not a parent. How could a teacher assert the right of a parent? Likewise, Pierce was brought by an order of Catholic nuns. The Society of Sisters asserted the "liberty of parents and guardians to direct the upbringing and education of children under their control." Becket's Fulton brief explained the connection between the religious order and the Fourteenth Amendment right:

And it has recognized the power of a Catholic religious order "with power to care for orphans" to challenge a law which prohibited the religious education they provided. Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 531-532 (1925).

If Fulton could be pigeonholed into the hybrid rights framework, then Smith remains intact for now, but Catholic Charities will prevail. Then again, I'm not sure if the "hybrid" theory was squarely raised. Indeed, the Becket brief criticizes the "hybrid" theory, as part of its critique of Smith. Maybe the Court orders re-argument on this position?

This theory may seem outlandish. But consider a couple clues. First, Justice Thomas did not join Alito and Gorsuch in dissent. Why? Thomas has dissented in (as far as I can recall) every single COVID case that rule against a house of worship. Let's assume that Chief Justice Roberts is dissenting in Fulton. (I'm sure he'll find some fact-bound issue to dissent on). That means Thomas is in the majority, and assigned it to himself. Perhaps to cobble together five votes, Thomas had to go with hybrid rights theory. Maybe Justice Kavanaugh or Barrett pushed this point. Is the former Scalia clerk partial to Scalia's handiwork? For that reason, the per curiam opinion went out of its way to explain that this case did not squarely present the hybrid rights claim. That way, the lower court won't muck up the waters in the leadup to Fulton.

Justice Gorsuch's dissent offers several other clues. First, he finds that the Plaintiffs prevail the "hybrid" rights theory.

Second, under this Court's precedents, even neutral and generally applicable laws are subject to strict scrutiny where (as here) a plaintiff presents a "hybrid" claim—meaning a claim involving the violation of the right to free exercise and another right, such as the right of par-ents "to direct the education of their children." Smith, 494 U. S., at 881.

Second, Gorsuch proceeds to criticize the hybrid rights theory.

 It is far from clear, too, why the First Amendment's right to free exercise should be treated less favorably than other rights, or ought to depend on the presence of another right before strict scrutiny applies. See, e.g., Kennedy v. Bremerton School Dist., 586 U. S. ___, ___ (2019) (ALITO, J., statement respecting denial of certiorari); McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1121–1122 (1990).

Third, Gorsuch criticizes the difficult "neutrality" line from Smith:

Perhaps the Sixth Circuit's errors are understandable. Smith's rules about how to determine when laws are "neutral" and "generally applicable" have long proved perplex-ing. See, e.g., Laycock & Collis, Generally Applicable Law and the Free Exercise of Religion, 95 Neb. L. Rev. 1, 5–6 (2016).

A final piece of evidence. Justice Alito goes out of his way to stress that there is no merits ruling:

While I do not agree with the Court's denial of the applicants' request for emergency relief, no one should misinterpret that denial as signifying approval of the Sixth Circuit's decision. As I understand this Court's order, it is based primarily on timing.

What does Alito's dissent add that is not in Gorsuch's dissent? Gorsuch dumps on the hybrid rights theory. Alito's dissent keeps the issue open.

Imagine if there are four votes for the hybrid right theory in Fulton. And Gorsuch, as he is wont to do, only concurs in judgment. That fracture would leave Free Exercise jurisprudence, well, fractured.

We'll see soon enough what happens in Fulton.

NEXT: "Taking Carbon to Court" - Massachusetts v. EPA and The Rule of Five

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  1. This fucking guy.

    1. Very substantive response. Thanks.

    2. More than anything else, Prof Blackman reminds me of the people who go in for fantasy leagues. He’s having fun trying to predict what might happen. He’s been right often enough to convince me he’s not stupid, although IANAL and long detailed posts like this are way over my head and mostly just convince me that precedent and dusty cases (“the Yoder line of precedent — which stretches back to at least Meyer v. Nebraska in 1923”) are an abomination, and cases would be better decided from first principles every time. Probably why IANAL.

      Did I mention IANAL? I learn more from these posts than most others, and if all you can do is wave a vague insult flag in the air, you either know everything already or have no curiosity.

  2. Know nothing Ivy indoctrinated lawyers making national policy on a complicated technical subject, a shutdown. The quarantine laws of the statesallow the lockdownof infected people, even if asymptomatic. I support those. There is no law allowing the lockdown on uninfected people. Why can’t these Supreme Court lawyers read the easy English of these laws?

  3. “Now, the case is not-quite-moot, but who needs to decide this important question if the kiddies go home for Christmas break on Friday.”

    Who says that a private school has to have a Christmas break?!?

    The major Christian holiday is Easter, not Christmas — the Puritans outright banned Christmas with Increase Mather stating that the early Christians who first observed the Nativity on December 25 did not do so ‘thinking that Christ was born in that month, but because the Heathens Saturnalia was at that time kept in Rome, and they were willing to have those Pagan holidays metamorphosed into Christian ones.’”

    Catholics have always felt differently, and I wonder if overlooking this is a factor of having a court that no longer has any Protestants on it.

    1. Kentucky is the state* that first said that a girl under the age of 15 who is married isn’t truant if she fails to attend school because of her greater duty “to her household” — and recently changed that to that she is truant, but it’s the responsibility of her husband, not parents, to get her to school.

      Which raises the question of (a) how many 14-year-olds (or younger) are getting married in Kentucky, and (b) what is that state’s* attitude towards K-12 education?

      Could it be that possibly Kentucky is a bit nonchalant and that parents paying to send their kids to Danville Christian aren’t? That would make this a parental rights issue outside of the religious issue.

      *Kentucky is actually a Commonwealth — the other three are MA, PA, & VA.

  4. I am not busting on Professor Blackman, but I think maybe Occam’s Razor is more explanatory than the speculation I read.

    Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

    Sometimes, you just have to take things at face value. This ‘feels’ like one of those times. We are talking a single day before the executive order expired. Why tie-up all that staff time to write a decision when the order expires in a day or two? That strikes me as being very pragmatic, almost Justice Breyer-like. 🙂

    My question: Will the KY governor re-issue the same order? Isn’t that the question here?

    1. Of course he will, if not today then soon. SCOTUS is really a bunch of chickens.

      I’d just like to ask them do they buy into as governor can declare an emergency and suspend he constitution for as long as he pleases.

      We’re at that point now and they are too chicken to make even caption obvious rulings questioning that authority

      1. I want SCOTUS to rule on the concept of never-ending emergencies and to tell us what Constitutional rights we ACTUALLY have since freedom of assembly can be violated with no penalties at all.

  5. Again, we have a religious school making the argument that its mission is religion, not education. Attending a religious school is an act of worship, an act of practicing one’s religion.

    Okay, let’s accept that. But if that argument is correct then it is equally correct that direct government aid to a religious school in the form of directing tax dollars to that school or supporting it in any other way is a violation of the 1st amendment. A basic fundamental right is that a person cannot be forced to support a religion, any religion. Christianity is not my religion. And I support without reservation the right of those who worship in the Christian relgion to practice their religion. But I am just as strongly opposed to their demands that I support their religion.

    But of course the zealots will not accept that. They want the protections that the Constitution offers religion along with public taxpayer support of their religion. This is not America, it is Iran.

    Of course, once Muslims start asking for all of this the Christians will violently object. Muslim is a religion but it is not the ‘right’ religion and should be disregarded if not persecuted in the Christian America.

    1. That used to be the Supreme Court’s position, but it hasn’t been for some time. The more recent position is that government can separate out the religious and educational missions for funding purposes and fund only the educational mission.

      Religious schools have been asserting, however, that it can’t make that distinction when it comes to outright prohibitions, rather than subsidies.

      There is a logical basis for distinguishing the two. Funding comes under the Establishment Clause. Prohibitions come under the Free Excercise Clause. Two different constitutional clauses, two different interpretive analyses, two different outcomes.

      1. The result, religions have their cake, eat it too and then eat some of other people’s cake.

        1. The religious right has become accustomed to ‘heads we win, tails you lose.’

          The backlash — fueled by the increasing association of organized religion and old-timey bigotry in a society that becomes less religious and less bigoted each day — seems predictable in modern America.

    2. How about their mission is just private. And its none of your business.

      1. The public funding for which these institutions strive and which they take seems to contravene that point conclusively.

  6. An obvious problem with using a hhybrid rights theory in Fulton is that the Supreme Court has squarely held that foster parents lack the privacy rights that regular parents have, and in particular lack a parental interest in the children.

    While perhaps parents who want to use Catholic Charities as a foster agency might have standing to assert hybrid rights, neither Catholic Charities nor prospective foster parents possess these rights, and hence they lack standing to assert them.

  7. The problem I have with the hybrid theory is why do you need to hybrid at all? If parents have a fundamental right to educate their children (as the Court held in Pierce v. Society of Sisters), then why is that not enough to press your right to educate them?

    How about parents who send their children to a secular private school? And believe (as do many educators) that continuing education, even during COVID, is crucial. And if the school takes all the necessary precautions, the risk can be minimized, and that balances the educational and psychological harm from closing the schools.

    IMO, that should be enough to require a higher level of scrutiny than the usual rational basis test. Perhaps the Governor of Kentucky can show he has a strong reason to override the parents’ decision. Perhaps not. I just don’t see what Free Exercise adds that would not already be there based on Pierce.

      1. Disaffected, separatist, anti-social clingers are among my favorite culture war casualties.

        These clingers can’t be replaced fast enough.

  8. Question — What has changed since Fulton? Answer — Rapidly rising cases, hospitalizations, and deaths.

    Maybe the majority is neither stupid nor willfully blind, impairments that too often afflict ideologues of all persuasions.

    1. It’s been a NINE MONTH EMERGENCY.

      It’s not like legislatures have not had time in NINE MONTHS to consider legislation permitting this nonsense.

      That they have not IS their decision and the governor should have no power to ignore it in perpetuity.

      1. It hasn’t been a nine-month emergency. The order in question was issued on November 18; it’s been precisely a one-month emergency.

  9. And deciding this case in the context of Smith would require defining what exactly “neutral” and “generally applicable” means. The Court elided over this issue in Diocese. It is a hard issue. Perhaps the Court can decide these cases with a one-off theory, like in Masterpiece Cakeshop.

    “Generally applicable” is easy if you are strict about it. A law is “generally applicable” if it applies the same standard to everyone.

    Exclusions/exemptions that are conditional on how or why (justifiable homicide) are fine.

    Any exclusions/exemptions/different treatment based on who defeats “generally applicable”. A law that give different standards for industry A and industry B is not “generally applicable”.

    1. Maybe just let people decide if they ant their kids to attend private school in person. And also let a baker decide which cakes he wishes to produce or not.

      Maybe overthinking it here. Or maybe just chickening out is the intent. Overthinking so they can chicken out seems to be the winner.

      1. Open wider, clingers.

      2. And also let a baker decide which cakes he wishes to produce or not.

        Call me when there’s a serious effort to repeal the non-discrimination in public accommodation provisions of the CRA (1964) and similar state/local provisions.

        Until then, there’s no reason to take this kind of nonsense seriously.

    2. I don’t think that is what was meant. “Generally applicable” means with respect to religion. A law that singles out one or all religions is not generally applicable. A law that does not, but makes other distinctions, is generally applicable.

      Example. The federal Civil Rights Act has an exemption for small employers regarding discrimination claims. 15 employees is the threshold for small employers.

      I don’t think that exemption makes the law not “generally applicable.” Congress choose to exempt small employers, and that applies to religious ones (small churches) and secular ones (a small grocery store). A church or synagogue that has more than 15 employees would have a hard time invoking strict scrutiny to get out of the Civil Rights Act.

      1. What do you think of the “most-favored nation” standard which Blackman, and perhaps Justice Kavanaugh, is a champion of? As I understand it, the existence of any exemption, including the small-business one you mention, triggers some heightened scrutiny (I am not at all clear, how that would work).

        1. I think it is simply wrong.

          Nor do I think that Roberts’ approach — that if you can show any plausible reasons for the difference, then you are ok — is correct either.

          In my view, the government or State should bear the burden of justifying the difference by convincing evidence.

          Perhaps an example will illustrate. During COVID, a State completely bans theaters. It allows houses of worship to operate with no more than ten attendees, regardless of their capacity. It allows many businesses, like shopping malls, to operate up to 50% capacity, which of course varies by the size of the building.

          Roberts’ view is that since theaters are comparable to houses of worship, and one can plausibly argue that gatherings in houses of worship are more similar logistically to gatherings in theaters than in shopping malls, the law stands.

          Kavanaugh’s view is that the State must offer the same exemption afforded to shopping malls.

          My view is that perhaps the State’s position can be justified. But it must bear the burden to show that the logistics of operation of houses of worship significantly increase the risk of contracting COVID over the logistics of operating a store. It is not enough just to waive your hands and say, well people stand together in a church for an hour (or in a synagogue for three hours!), while they walk around in a shopping mall, so that difference is enough. That is plausible, but I would require some hard evidence that it makes a significant difference.

          1. Why is it the court’s job to second-guess the legislature’s evaluation of available evidence when making public safety determinations? If a state decides that the prudent course of action is to take proactive steps that it thinks have the best chance of limiting the spread of a pandemic, should a court tell it that it can’t do so until there are X number of statistical demonstrations that a failure to do what the state wanted to do in the first place will lead to Y additional deaths?

            1. One it has typically not been the legislature, but an executive operating on the fly.

              Two, because in the example I gave, the government action is discriminatory on its face. If a State wants to say, as Nevada said, that casinos are open for business, but churches are not, it had better have a good reason justifying that distinction.

          2. How does your test work with employment anti-discrimination law? Does the state have to justify why it gives an exemption to a small business but not to a large-business that has a religious objection?

            1. You never get there. As I said, that law is generally applicable. A church with 10 employees gets the exemption, a church with 20 does not. Same as a grocery store.

              1. What about a person who owns a for-profit business that hires 20 employees, but has a religious objection to hiring gays? Does your standard require the state to justify a small-business exemption but not a religiously-motivated exemption?

                Another example is the privilege of not testifying against your spouse. Does the state then have to justify not providing the same privilege to a person who has a religious objection to testifying?

                1. No and no. Those are both generally applicable laws.

                  Unless you overrule Smith. Which I would not do, even though that is against my interests as a religious minority.

                2. My answer should make clear that the vast majority of times, the result is controlled by Smith. Almost all laws and executive orders are generally applicable in terms of religion.

                  It is only the recent COVID orders that have singled out houses of worship, or in NY religious neighborhoods. Smith does not cover that. The question is what does. I have given you my view.

                  1. I think you are saying if the exemption is categorically unavailable to a religious objector, then the state must justify (under some standard other than rational-basis review or strict scrutiny) not providing the exemption to a religious objector. But, if the religious objector can take advantage of the exemption (in the examples, he runs a small business or could be married), then the law is generally applicable.

                    If I have that correct, then Beshear should win this case (leaving aside your argument based on Pierce). And states would also win (leaving aside arguments based on assembly) if they described under what religious or secular conditions (e.g., singing), rather than naming churches, gatherings would be prohibited. And states might also win if they name churches but meet your justification standard.

                    1. If I have that correct, then Beshear should win this case (leaving aside your argument based on Pierce).

                      Well yes, exc. I think Pierce is a good argument. But not one based on Free Exercise.

                      And states would also win (leaving aside arguments based on assembly) if they described under what religious or secular conditions (e.g., singing), rather than naming churches, gatherings would be prohibited.

                      Yes, unless those conditions were pretextual or have so many exceptions that it is clear they are targeting religion. That was the case in the Babalu Aye case. They wanted to outlaw Santeria, but realizing they couldn’t, they tried to create a “generally applicable” law with tons of exceptions. The Supreme Court saw through that.

                      And states might also win if they name churches but meet your justification standard.
                      Yes. Not sure exactly what that would be. For now, let’s say strict scrutiny.

                  2. I should add that it goes without saying that teh justification has to be secular and neutral towards religion. It can’t be (a) religion is not all that important to life as compared to commerce (i.e. Nevada) or (b) religious expression is not something that is all that compelling, but protesting racism is (i.e., the Mayor of NY).

                    But if a medical expert says that the logistics* of how people congregate in a house of worship signficantly increase the risk of COVID more than the logisitics of how people congregate in a shopping mall, then that could well justify the difference.

                    ___________
                    * I don’t know if “logistics” captures the idea, but it is the best word I can think of. Point is, people do act differently in a house of worship than a shopping mall, in terms of how long they stay there, what they do, and how they interact with one another.

                    1. If churches are explicitly named to provide better treatment than some secular conduct (while also providing worse treatment than other secular conduct), I’m not sure it makes sense to require strict scrutiny to justify the differential treatment.

                      I agree that the state fails if it argues that religious speech is not as important as secular political speech. But, that’s viewpoint discrimination under Freedom of Speech, not Free Exercise doctrine.

                      I’m not sure what should happen if some secular conduct is deemed “essential” while some religious or other secular conduct is not. Perhaps the state should be given leeway to explain why some secular conduct is essential, so long as that explanation does not categorically exclude religious conduct.

    3. I doubt there are very many laws that don’t have a categorical exemption. For example, employment anti-discrimination laws typically exempt very small businesses. The duty to testify has a spousal exemption. It doesn’t strike me as correct that virtually all laws aren’t generally applicable.

  10. the up-coming holiday break, which starts Friday, December 18, for many Kentucky schools. All schools in Kentucky may reopen after the holiday break, on January 4

    What about schools that didn’t go on break on the 18th? Are there no schools in all of Kentucky that either aren’t having a break at all, or that will have a shorter one of only a few days? Surely they are still affected by the order. Was it even in evidence that Danville was going on break on the 18th?

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