Private religious K-12 schools will be likely to close Monday, together with public ones, within ruling from the U.S Sixth Circuit Court of Appeals passed down on Sunday. The panel of judges overturned a lower court decision that blocked Beshear's executive order from affecting private religious schools.
The appellate court ruling overturns a prior ruling from U.S. District Court judge Gregory Van Tatenhove that had found Beshear's order impinged on First Amendment rights to spiritual freedom. Van Tatenhove had sided with Danville Christian Academy and Kentucky Attorney General Daniel Cameron within their request for a preliminary injunction blocking the order from impacting private religious schools.
In the Sunday ruling, the appellate court disagreed, for the reason the order didn't specifically target religious schools.
“[The executive order] applies to all private and public elementary and secondary schools in the Commonwealth, religious or else; it is therefore neutral and of general applicability and want 't be justified with a compelling governmental interest,” the panel of three judges wrote.
“Any burden on plaintiffs' religious practices is “incidental” and therefore not susceptible to strict scrutiny,” an order reads.
The ruling draws on a concurring opinion from Justice Brett Kavanaugh inside a 2021 U.S. Top court decision blocking New York Governor Andrew Cuomo from imposing coronavirus restrictions on Catholic churches. In that ruling, Top court Justices decided in a split vote to block Cuomo's order from taking effect. However, the Sixth Circuit judges cited passages from Kavanaugh's opinion they found relevant to the Danville Christian case.
“In Justice Kavanaugh's concurrence in Roman Catholic Diocese, he emphasized that, '[i]n light from the devastating pandemic, . . . their state [has the] authority to impose tailored restrictions-even very strict restrictions-on attendance at religious services and secular gatherings alike,'” the order reads.
In contrast towards the lower court ruling the appellate judges deferred to the governor's judgement.
“We are not capable of second-guess the Governor's determination concerning the health and safety from the Commonwealth at this time over time,” the judges wrote.
“'Members of the Court aren't public health experts, and we should respect the judgment of these with special expertise and responsibility in this area,'” an order reads, quoting the 2021 U.S. Supreme Court ruling in Roman Catholic Diocese v. Cuomo.
Pending an appeal, Beshear's order closing all K-12 schools to in-person classes will take effect Monday, including private religious schools.
In an emailed statement, Beshear welcomed the choice.
“The coronavirus is surging across our country and our commonwealth, bringing sickness and death. Fighting back and protecting one another requires a coordinated effort where all Kentuckians do operator. In the end all would like to get our youngsters back to in–person instruction, the United States Court of Appeals for the Sixth Circuit recognized that doing this now would endanger the health and lives of Kentucky children, educators and families,” the statement reads.
Meanwhile, Kentucky Attorney General Daniel Cameron says he is planning an attract the U.S. Supreme Court.
“We're disappointed using the Sixth Circuit's ruling allowing the Governor to close religious schools, but we're already working hard to consider this matter towards the United States Supreme Court,” Cameron wrote in a Tweet.
Under Beshear's order, elementary schools must stay closed to in-person instruction until Dec. 7, and may only reopen if their county is not within the “red zone” on the state's coronavirus dashboard. Middle and high schools must remain closed until Jan. 4.
