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WASHINGTON – The Supreme Court on Thursday refused to exempt Kentucky’s religious schools from an order by Governor Andy Beshear that temporarily closed all elementary, middle and high schools, whether public or private, in a bid to fight the coronavirus pandemic.
The succinct, unsigned court ruling highlighted that the order from Mr Beshear, a Democrat, would no longer be in effect. “The governor’s school closure order effectively expires this week or soon after, and there is no indication that it will be renewed,” the court said.
He added that the challengers had not frankly faced an important distinction. “The ordinance also applies to secular schools and religious schools, but the petitioners argue that the ordinance treats schools (including religious schools) worse than restaurants, bars and gymnasiums, for example, which remain open.” , according to the notice.
“In all the circumstances, especially the timing and impending expiration of the order,” said the notice, “we reject the request without prejudice to applicants or other parties seeking a new preliminary injunction if the governor issues a school closure order. this applies to the new year. “
Justices Samuel A. Alito Jr. and Neil M. Gorsuch each filed a dissent which was joined by the other. Justice Alito said the Supreme Court should have acted earlier to deal with the challengers’ claim and said the courts can still deal with it.
“As it stands,” Judge Alito wrote, “this action remains on the role of the district court. If the governor does not allow the start of classes after the end of the year, candidates can file a new request for a preliminary injunction, and if the lower courts do not provide a remedy, candidates can of course return to this. court.
Judge Gorsuch said the majority invited the political game. The governor, he wrote, should not “be able to escape judicial control by issuing short-term decrees and then urging us to overlook their problems only because an executive order is about to be done. ‘breathe out while the next has not yet arrived’.
The preferable approach, he said, would have been to require the appeals court to now resolve the case according to the appropriate legal standards. This, he wrote, “would be better for everyone – from parents who might have to take time off work and stay home if decrees like these were to be followed, to public health officials in the city. state who might have to plan the school if they are not.
The decision in the Kentucky case followed a series of Supreme Court rulings on state restrictions on religious services in churches and synagogues. The court had maintained such boundaries while Judge Ruth Bader Ginsburg was alive, but changed course after being replaced by Judge Amy Coney Barrett.
The Kentucky case presented a related but distinct issue. In ordering the temporary closure of all K-12 schools, Mr. Beshear did not choose religious schools.
In a lawsuit challenging the order, Danville Christian Academy and Daniel Cameron, the state attorney general, a Republican, said it didn’t matter that all schools were treated the same, because religious education was still subject to stricter restrictions than comparable secular activities. It violated constitutional protections for the free exercise of religion, they said.
Judge Gregory F. Van Tatenhove of the Federal District Court of Frankfort, Ky., Agreed. “In an effort to do what it takes to combat the virus,” Judge Van Tatenhove wrote, “the governor cannot do the wrong thing by violating protected values.”
“This tribunal wonders why, under this decree, one would be free to attend a conference, to go to work or to attend a concert, but not to attend a socially remote chapel at school or pray together in a classroom that follows strict safety and social procedures. distancing, ”wrote the judge. He issued an injunction quashing Mr. Beshear’s order and opening religious schools.
A unanimous panel of three judges from the U.S. Court of Appeals for the Sixth Circuit in Cincinnati suspended Judge Van Tatenhove’s ruling, lifting his injunction as an appeal progressed. In an unsigned opinion, the panel said that a recent Supreme Court ruling overturning limits on attendance at church services in New York “does not impose a contrary result.”
“The contours of the order at issue here,” the panel wrote, “are in no way correlated with religion and cannot be plausibly interpreted as containing even a hint of hostility towards religion. religion.”
In asking the Supreme Court to intervene, the challengers urged judges to consider how secular activities in the state have been treated.
“In Kentucky,” the brief says, “you can go to a morning at the movies, visit a distillery, work out at the gym, bet in a game room, shop, go to work, cheer on the Wildcats or the Cardinals and attend a wedding. A parent can send their child to daycare or kindergarten. And students can take classes. But all of Kentucky’s religious schools are closed.
Kentucky Republican Senator Mitch McConnell and 37 other senators filed a brief supporting the challengers. “Covid-19 is undoubtedly a serious threat to health, but the Constitution applies even in difficult times,” the brief said. “This court should once again remind governors across the country that closure orders cannot violate constitutional rights.
Lawyers for Beshear responded that in-person K-12 education “presents a perfect storm of factors which combine to generate a singular public health risk.”
Students spend long days indoors, according to the dissertation; school-aged children find it difficult to keep their masks on and have to take them off to eat; and teachers, administrators, janitors, cafeteria staff and parents are often present.
Kentucky has an unusually high percentage of children in the care of their grandparents and other seniors, according to the brief, and Thanksgiving and the holiday season are a particularly dangerous time, especially since ‘a significant percentage of pediatric Covid-19 infections are asymptomatic.
Daycares and preschools do not give rise to “anything approaching the high-volume mix that inevitably results from in-person K-12 teaching,” the brief said. And state colleges and universities, according to the brief, will be overwhelmingly closed in the coming weeks and have switched to distance learning anyway.
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