A federal appeals court has granted an injunction to nine religious schools in Ohio that blocks application to them of a recent county order shutting down public and private schools amid a COVID-19 surge.
A unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held that the fact that both public and private schools were included in the Dec. 4 shutdown order of the Toledo-Lucas County, Ohio, health department was not the proper comparison for a neutral, generally applicable pandemic restriction.
The religious schools’ First Amendment right of free exercise of religion was being infringed because many “comparable” secular businesses were allowed to remain open, the court said.
“In Lucas County, the plaintiffs’ schools are closed, while gyms, tanning salons, office buildings, and the Hollywood Casino remain open,” the 6th Circuit panel said in its Dec. 31 order in Monclova Christian Academy v. Toledo-Lucas County Health Department. “The resolution’s restrictions therefore impose greater burdens on the plaintiffs’ conduct than on secular conduct.”
The court said its decision was supported by the U.S. Supreme Court’s Nov. 25 decision in Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo, which blocked pandemic-related limits on church attendance in New York state because churches were treated less favorable than “comparable secular facilities.”
The 6th Circuit also relied on a 1993 Supreme Court decision, Church of the Lukumi Babalu Aye v. City of Hialeah, which had invalidated the Florida city’s statutes against animal sacrifice because they targeted practices of the Santeria religion.
The key question in this case, the 6th Circuit said, “is whether we may consider only the secular actors (namely, other schools) regulated by the specific provision here in determining whether the plaintiffs’ schools are treated less favorably than comparable secular actors are.”
“We find no support for that proposition in the relevant Supreme Court case law,” the appellate court said. In Lukumi, the Supreme Court held that “the free exercise clause … ‘protects religious observers against unequal treatment’,” the 6th Circuit noted.
(Legal scholar Josh Blackman has an interesting analysis of the 6th Circuit panel’s discussion of Lukumi in the Ohio schools case in a post at the Volokh Conspiracy website.)
The 6th Circuit panel took note of a Nov. 29 order by another panel of the same court that had refused to exempt a religious school in Kentucky from an order by the governor to shut down in-person learning because of the COVID-19 spike.
Both Kentucky and Ohio are in the 6th Circuit, and the panel in the new ruling involving Ohio said “we have no quarrel” with the earlier panel’s ruling that the Kentucky order did not violate the free-exercise rights of a religious school in that state because both public and private schools were closed. The panel in the Ohio case suggested that the Kentucky case had not squarely presented the issue of whether religious schools were comparable to secular businesses when it came to pandemic restrictions.
(The Supreme Court on Dec. 17 denied emergency relief to the Kentucky religious school, saying that the imminent expiration of the governor’s closure order and the holiday break counseled against granting the school’s request at this time.)
The Toledo-Lucas County school shutdown order was scheduled to expire on Jan. 11. There was no immediate word on whether the county planned to appeal the 6th Circuit order.