A federal appeals court on Sunday lifted an injunction issued by a lower court that would have allowed private religious schools in Kentucky to reopen despite recent orders by Gov. Andrew G. Beshear to stop all in-person instruction to battle a resurgence of COVID-19.
On the eve of a new school week, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled unanimously for the Democratic governor and against Danville Christian Academy and Republican Attorney General Daniel Cameron.
The appeals court said the religious school was unlikely to prevail on a claim that the governor鈥檚 order violates its First Amendment right to free exercise of religion.
鈥淲e are not in a position to second-guess the governor鈥檚 determination regarding the health and safety of the commonwealth at this point in time,鈥� the 6th Circuit court said in , a case caption that highlights the surprising legal and political battle lines during the pandemic.
The governor鈥檚 Nov. 18 executive order 鈥渁pplies to all public and private elementary and secondary schools in the commonwealth, religious or otherwise,鈥� the court added. 鈥淚t is therefore neutral and of general applicability and need not be justified by a compelling governmental interest.鈥�
The appellate panel held that a federal district court was wrong to issue a preliminary injunction that exempted religious schools from the governor鈥檚 order barring in-person instruction. The district court had ruled on Nov. 25, on the eve of the four-day Thanksgiving weekend, that the governor鈥檚 order likely violated the religious schools鈥� free exercise rights. Beshear had immediately sought a stay of the district court鈥檚 injunction from the 6th Circuit court.
鈥淭he lower court鈥檚 order not only immediately impedes the commonwealth鈥檚 ability to enact public health measures to protect the public from the spread of COVID-19, but also eviscerates free exercise jurisprudence to call into question any neutrally-applicable public health measure a state would enact to protect children and staff of religiously-affiliated schools,鈥� lawyers for the governor said in a court filing.
Cameron, along with lawyers representing Danville Christian Academy, filed a response that cited the U.S. Supreme Court鈥檚 Nov. 25 decision blocking New York Gov. Andrew M. Cuomo鈥檚 occupancy limits on church attendance. The high court鈥檚 5-4 decision in blocked the church limits on free-exercise grounds.
鈥淕ov. Beshear ordered the closure of all religious schools in the commonwealth, but continues to allow Kentuckians to gather in many other settings,鈥� said the brief filed by the state attorney general and the Christian school. 鈥淲hile day cares, colleges and universities, movie theaters, gambling parlors, and gyms are open in Kentucky, religious schools are shuttered.鈥�
But the 6th Circuit court pointed out that the governor鈥檚 order applies to all public and private K-12 schools, with minor exceptions for home schools.
鈥淭he 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,鈥� the appellate court said.
The 6th Circuit court took note of the Supreme Court鈥檚 recent decision in the New York church case, but said that ruling did not help the private religious school challenging Beshear鈥檚 order.
鈥淯nlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions [in Kentucky] were targeted or gerrymandered to ensure an impact on religious groups,鈥� the 6th Circuit court said.
The appellate panel said Kentucky was 鈥減articularly vulnerable鈥� to the unique problems that COVID-19 poses for schools, 鈥渁s it leads the nation in children living with relatives other than their parents鈥攊ncluding grandparents and great-grandparents, who are especially vulnerable to the disease,鈥� and because 鈥淜entuckians also have high rates of co-morbidities that can lead to severe cases of COVID-19, including heart and lung conditions.鈥�
Beshear issued a statement Sunday that said, 鈥淲hile we all want to get our kids back to in-person instruction, the United States Court of Appeals for the 6th Circuit recognized that doing so now would endanger the health and lives of Kentucky children, educators, and families.鈥�
Cameron, on his Twitter page, said, 鈥淲e鈥檙e disappointed with the Sixth Circuit鈥檚 ruling allowing the governor to close religious schools, but we鈥檙e already hard at work to take this matter to the United States Supreme Court.鈥�
