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Why the Supreme Court ruled against a Christian school fighting Kentucky’s closure order

Justices recently ruled in favor of several houses of worship making similar religious freedom claims.

This is a Jan. 27, 2020, file photo of The Supreme Court in Washington.
Mark Tenally, Associated Press

Just two days after ruling in favor of a Colorado church fighting government-imposed gathering restrictions, the Supreme Court has ruled against a Christian school in Kentucky making similar religious freedom claims.

The school, Danville Christian Academy, sought a temporary injunction against a state order barring in-person learning. But justices said there was no need for them to step in, since schools will soon shut down for winter break and be free to reopen in January.

“The governor’s school-closing order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed,” the majority opinion said.

Kentucky Gov. Andy Beshear, a Democrat, issued the executive order Nov. 18 as part of a broader effort to get the COVID-19 crisis under control in the state. It temporarily closed all elementary, middle and high schools in the state, forcing them to move to virtual instruction until winter break.

Although the order treated public and private schools the same, the religious schools argued that their religious exercise rights were still under attack since the activities deemed unsafe on their campuses were allowed to take place elsewhere, such as at daycares or movie theaters.

This argument succeeded at the district court level and the school was granted a preliminary injunction blocking enforcement of the governor’s order.

However, a few days later, the 6th Circuit Court of Appeals overturned the lower court’s decision. The judges said that Danville Christian Academy’s free exercise rights had not been violated, since the governor’s order treats private, religious schools the same as public schools and it appears to be a reasonable response to a growing public health crisis.

“We are not in a position to second-guess the governor’s determination regarding the health and safety of the commonwealth at this point in time,” the judges said.

In response to the circuit court’s ruling, the school appealed to the Supreme Court.

Once again, attorneys questioned why, if the governor believed it was dangerous for people to gather together in elementary, middle or high school classrooms, he was allowing people to gather in other, similar environments.

“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,” Danville Christian Academy noted in its application to the Supreme Court.

The court acknowledged these concerns in its ruling, but chose not to offer legal relief.

At this point, the governor’s temporary order will have already expired by the time schools could be ready to reopen, the justices said.

“Under all of the circumstances, especially the timing and the impending expiration of the order, we deny the application,” the majority opinion said.

Justices Neil Gorsuch and Samuel Alito filed dissenting opinions in the case, arguing that the time is always right to correct problematic policies and rulings.

“Asking the 6th Circuit to resolve the case now, under accurate legal rules, would be better for everyone — from the parents who might have to miss work and stay home should decrees like these be upheld, to the state public health officials who might have to plan for school if they are not,” Gorsuch wrote.

First Liberty Institute, the law firm that represents Danville Christian Academy, announced Thursday that the school would continue its fight if Beshear does not allow schools to reopen for in-person learning next month.

“While we would have liked the court to rule on the merits today, we appreciate the court’s invitation to us to seek an injunction if the governor decides to reissue his unconstitutional order on Jan. 4. Rest assured, if the governor does so ... we will file against him immediately,” said Kelly Shackelford, the organization’s president, CEO and chief counsel, said in a statement.