SCOTUS declines to intervene after 6th Circuit finds no “hint of hostility toward religion” in Kentucky Governor’s COVID-19 order halting in-person schools

UPDATE: The U.S. Supreme Court issued a ruling on a 7-2 vote declining to take up this case. The majority cited the fact that the governor’s order would “effectively expire” in a matter of days, with “no indication it will be renewed.” Justices Alito and Gorsuch dissented and would have taken up the school’s case.

Original post:
Kentucky Gov. Andy Beshear’s latest COVID-19 order, which halted in-person learning in both public and private elementary and secondary schools across the state in response to the recent surge in cases, will remain in full force after a unanimous federal appeals panel ruled it is likely to withstand a constitutional challenge brought by a private Christian school and the state’s attorney general. The court in Danville Christian Academy v. Beshear rejected the plaintiffs’ argument that the governor’s action violates religious freedom rights under the First Amendment and the Kentucky Religious Freedom Restoration Act.

The COVID-related cases, including the multitude of cases arising out of restrictions on houses of worship, hinge on whether a court finds that that the restrictions amount to discrimination against religion by treating religion or religious entities worse than non-religious entities, or through evidence of governmental hostility toward religion. Once that threshold is reached, the state faces a much higher (compelling interest) standard to show that the restriction is nonetheless lawful.

Here, the 6th U.S. Circuit Court of Appeals panel found that there is no such evidence and thus the state does not need to satisfy that heightened standard. The court emphasized that the governor’s order “applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise,” concluding that “it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest.”

This is a closely watched case, both because it is the first school-related COVID case to reach a federal appeals court ruling, and because the 6th Circuit was the only appeals circuit to enjoin a governor’s order (in Roberts and Maryville Baptist Church) because it infringed on the religious freedom of houses of worship. The U.S. Supreme Court subsequently reached a similar conclusion, halting (in Roman Catholic Diocese) the New York governor’s targeted restrictions that capped attendance in certain zones to 10 and 25.

As the appeals panel here explained in its order, however, this case is different from those, and not just because they impacted attendance at religious services as opposed to religious schools:

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 [here]. . . . 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.

Via Religion Clause, the school has already asked the U.S. Supreme Court to issue an emergency order reinstating the trial court’s injunction. Stay tuned.