The U.S. Supreme Court late Thursday denied emergency relief to a Kentucky religious school that challenged the governor’s pandemic closure order, saying that the imminent expiration of the order and the holiday break counseled against granting the school’s request at this time.
“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,” says the unsigned order in Danville Christian Academy v. Beshear (No. 20A96).
Two justices dissented, saying the Nov. 18 school closure order issued by Kentucky Gov. Andrew G. Beshear was at least constitutionally suspect under the Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo, which blocked pandemic-related limits on church attendance in New York state.
Justice Neil M. Gorsuch, in a dissent joined by Justice Samuel A. Alito Jr., said that a federal appeals court decision that refused to exempt religious schools from the order failed to adequately consider arguments that the governor’s order discriminated against religion. Even though Beshear’s closure order applies equally to public and private schools, including religious schools, Gorsuch suggested that the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, failed to weigh the school closure order against the governor’s separate business closure order, which permitted more activities and gatherings.
“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 parents to direct the education of their children,” Gorsuch said.
Alito, in a short separate dissent joined by Gorsuch, said the court should grant relief since the impending expiration of the order and holiday break were not the fault of the Danville Christian Academy. The school challenged the governor’s order two days after it was issued, and sought emergency relief in the Supreme Court on Dec. 1, just two days after the 6th Circuit court denied the school an injunction.
The more than two weeks that passed from the school’s emergency application and the high court’s order itself suggests that the case may have been the subject of some intense internal debate. Alito said in his dissent that “no one should misinterpret” the Supreme Court’s denial of the school’s application “as signifying approval of the 6th Circuit’s decision.”
Danville Christian Academy, a 234-student pre-K-12 school in central Kentucky, was joined in its emergency application by Kentucky Attorney General Daniel Cameron, a Republican. They were also joined by several friend-of-the-court briefs that made the arguments that even if Beshear’s order was religiously neutral and generally applicable because it treats public and private schools alike, the order requires heightened judicial scrutiny because the right of parents to direct their children’s upbringing was also involved.
The Supreme Court, in its order in the case, said that Danville Christian Academy did not squarely raise this alternative argument in the lower courts.
In a court filing, Beshear defended his closure order and argued it did not violate the free exercise rights of any religious schools.
“There is no claim here that the Executive Order arises from religious animus, is targeted at religion, or classifies on the basis on religion,” Beshear’s filing said, adding that the order “does not treat religious schools more harshly than secular ones. … In fact, it does not mention religion at all. That distinguishes it from orders invalidated by other appellate courts and by this court.”
Alito, in his dissent, reinforced the statement at the end of the majority order that the school may return to the courts if Beshear reinstates his school closure order.
“As things now stand, this action remains on the docket of the district court,” Alito said. “If the governor does not allow classes to begin after the turn of the year, the applicants can file a new request for a preliminary injunction, and if the lower courts do not provide relief, the applicants may of course return to this court.”