The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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. Connecticut; Murdock v. Pennsylvania; Follett 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.