The U.S. Supreme Court late Thursday denied emergency relief to a Kentucky religious school that challenged the governor鈥檚 pandemic closure order, saying that the imminent expiration of the order and the holiday break counseled against granting the school鈥檚 request at this time.
鈥淯nder 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,鈥� says the (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鈥檚 recent decision in , 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 that refused to exempt religious schools from the order failed to adequately consider arguments that the governor鈥檚 order discriminated against religion. Even though Beshear鈥檚 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鈥檚 separate business closure order, which permitted more activities and gatherings.
鈥淯nder this court鈥檚 precedents, even neutral and generally applicable laws are subject to strict scrutiny where (as here) a plaintiff presents a 鈥榟ybrid鈥� claim鈥攎eaning 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,鈥� 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鈥檚 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鈥檚 emergency application and the high court鈥檚 order itself suggests that the case may have been the subject of some intense internal debate. Alito said in his dissent that 鈥渘o one should misinterpret鈥� the Supreme Court鈥檚 denial of the school鈥檚 application 鈥渁s signifying approval of the 6th Circuit鈥檚 decision.鈥�
Danville Christian Academy, a 234-student pre-K-12 school in central Kentucky, was joined in 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鈥檚 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鈥檚 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 , Beshear defended his closure order and argued it did not violate the free exercise rights of any religious schools.
鈥淭here is no claim here that the Executive Order arises from religious animus, is targeted at religion, or classifies on the basis on religion,鈥� Beshear鈥檚 filing said, adding that the order 鈥渄oes not treat religious schools more harshly than secular ones. 鈥� In fact, it does not mention religion at all. That distinguishes it from orders invalidated by other appellate courts and by this court.鈥�
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.
鈥淎s things now stand, this action remains on the docket of the district court,鈥� Alito said. 鈥淚f 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.鈥�
