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After Decision in N.Y. Case, Kentucky School Asks SCOTUS to Nix COVID-19 Restrictions and Reopen Religious Schools

Just days after the Supreme Court of the United States ruled against New York State’s COVID-19 restrictions on religious services, a Christian school in Kentucky is asking SCOTUS if it can reopen, too.

Danville Christian Academy, joined by Kentucky’s Republican Attorney General Daniel Cameron, sued the state’s Democratic Governor Andy Beshear. After Beshear prevailed in his attempt to have the United States Court of Appeals for the Sixth Circuit set aside the lower court’s injunction against the restrictions, the school filed an emergency petition with SCOTUS.

Beshear issued an order on  Nov. 18 which closed all “public and private elementary, middle, and high schools.” Later the same day, a second order came down, which allowed other in-person activities and gatherings – such as day care centers, preschools, colleges, theaters, gyms, bowling alleys, wedding venues and offices – to stay open, but with capacity limits.

The school, which is a private K-12 school with 234 students, challenged Beshear’s order in federal court, arguing that the restrictions violated the free exercise clause and amounted to an unconstitutional restraint on religion. The petition pointed out arguable inconsistency in Beshear’s restrictions, writing:

 “to summarize, in Kentucky, one can catch a matinee at the movie theater, tour a distillery, work out at the gym, bet at a gambling parlor, shop, go to work, cheer on the Wildcats or the Cardinals, and attend a wedding.  A parent can send his or her child to daycare or preschool.  And college students can attend classes. But all of Kentucky’s religious schools are shuttered.”

Beshear lost at the district court level; the court blocked the regulations from being enforced against “any religious private school in Kentucky that adheres to applicable social distancing and hygiene guidelines.” Beshear appealed. The Sixth Circuit disagreed with the plaintiffs’ take on the order, finding that it likely did not amount to a constitutional violation. The order, the appellate court pointed out, applied to both religious and non-religious schools.

The school and Attorney General Cameron filed an emergency request with the Supreme Court, which will come before Justice Brett Kavanaugh (the justice to whom emergency petitions from the Sixth Circuit are assigned). The case will likely be put before the full Court.

In their petition, appellants detail the many measures Danville Christian has put in place to respond to the dangers of the pandemic, noting that these measures have already cost the school $30,000 to implement. The petition also quotes specifically from Kavanaugh’s concurrence in the recent New York case, reminding the Court that Kavanaugh wrote, “it is not enough for the state to treat religious conduct like ‘some secular activities,’” and that “The First Amendment does not include an escape hatch for the government.”

Arguing that the Sixth Circuit “failed to take heed” of the SCOTUS’s recent opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, Danville Christian now asks the high court to correct the error.

[image via Samuel Corum/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos