Sixth Circuit Sides With Kentucky Governor on Keeping Religious Schools Closed

Religious and private schools in Kentucky did not go back to in-person classes this week due to a decision by the Sixth Circuit Court of Appeals that sided with Governor Andy Beshear. Earlier this month, the governor issued an executive order prohibiting in-person classes at all Kentucky schools from November 23 through December 13. The state's attorney general, Daniel Cameron, along with Danville Christian Academy, filed for a temporary restraining order exempting religious and private schools on November 20.

The TRO request was granted by U.S. District Judge Gregory Van Tatenhove, who found that the order could not be applied to religious schools because it infringes on their constitutional rights. Beshear filed an appeal on Thanksgiving, urging that "we must all do our part over the next several weeks to slow the virus."

Closing All Schools Doesn't Trigger First Amendment Problem

Cameron's office and the religious schools argue that a recent Supreme Court decision that enjoined New York's occupancy limits for in-person worship services applies here. However, the Sixth Circuit pointed out that those restrictions were overturned because they "singled out houses of worship for especially harsh treatment." Governor Beshear's order, on the other hand, applies to both religious and non-religious schools alike. Therefore, the panel determined, the order is "neutral and of general applicability and need not be justified by a compelling government interest."

Cameron filed an emergency application for review by the Supreme Court, perhaps hoping the Roberts Court will continue in its habit of siding with religious institutions.

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