Supreme Court denies religious school challenge to Kentucky's expiring COVID-19 restrictions

WASHINGTON – The Supreme Court ruled Thursday that Kentucky can force parochial as well as public schools to close temporarily because of the coronavirus pandemic, but only because those restrictions are set to expire early next year.

Gov. Andrew Beshear ordered all public and private K-12 schools closed for in-person instruction beginning Nov. 23, limiting them to remote or virtual learning. The order allowed elementary schools that are not in hard-hit areas to reopen Dec. 7 but kept middle and high schools closed until Jan. 4.

Because the schools begin a holiday recess Friday, the justices did not insist that religious schools be allowed to open now. Instead, they denied a challenge from the state's Republican attorney general and a religious school that argued the closings violated the Constitution's promise of freedom of religion.

"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," the court said in an unsigned order.

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Conservative Associate Justices Neil Gorsuch and Samuel Alito dissented publicly. Gorsuch said the challengers deserve an answer to their assertion that the executive orders "discriminate against religion." None of the court's other justices announced their votes.

Noting the high court only last month ruled that New York could not severely limit religious worship during the pandemic, Gorsuch wrote, "I would not leave in place yet another potentially unconstitutional decree, even for the next few weeks."

Since the COVID-19 virus first led states to implement restrictions in March, the nation's highest court has weighed in on policies affecting religious services, retail shopping, prison housing and the administration of elections. This was the first time it dealt specifically on education.

In recent weeks, the court's conservatives freed churches, synagogues and mosques from strict attendance limits imposed by Democratic governors in New York and, by extension, California, Colorado and New Jersey.

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The order from Beshear, a Democrat, was challenged by Republican state Attorney General Daniel Cameron and a religious school, Danville Christian Academy. They won their case in federal district court, but the U.S. Court of Appeals for the 6th Circuit ruled that Beshear was within his rights to treat all schools equally.

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The challengers told the Supreme Court in legal papers that beyond schools, only bars and restaurants in Kentucky were forced to close indoors. In contrast, offices, theaters, fitness centers, wedding venues, bowling alleys, daycare centers, preschools, colleges and universities were allowed to remain open.

"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 (University of Kentucky) Wildcats or the (University of Louisville) Cardinals, and attend a wedding," they wrote. "But all of Kentucky's religious schools are shuttered."

Their cause won support from 38 Republican U.S. senators who told the court that state governors "have restricted American freedoms in ways previously seen only in dystopian fiction – including by shutting down religious gatherings of all kinds, while inexplicably allowing many secular activities to continue unabated."

In response, private attorneys representing the governor said the complaint does not cite any scientific or public health evidence to back up its comparisons. 

"With respect, nobody – not an elected official, not a public health expert, and not a court – should make life-or-death public policy decisions on the basis of such purely anecdotal, unscientific, and faulty reasoning about the spread of COVID-19," they said.

Steven Stack, the governor's public health expert, last month said the policy was justified because "places where people congregate near each other indoors for extended periods of time (more than 15 minutes) appear to be the location most associated with the spread of COVID-19, especially if people are not wearing masks."

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