But the court, in an unsigned order, noted that schools are about to begin their holiday breaks, and Gov. Andy Beshear’s mandate expires before schools reopen Jan. 4. If Beshear (D) reissues the restriction, the court said, the plaintiffs could return to court.
Justices Samuel A. Alito Jr. and Neil M. Gorsuch were alone in noting their dissent. Gorsuch said he was likely to agree with the Christian school’s argument that it and other such schools were being treated worse than businesses.
“I would not leave in place yet another potentially unconstitutional decree, even for the next few weeks,” Gorsuch wrote.
He said the governor should not be allowed “to evade judicial review by issuing short-term edicts and then urging us to overlook their problems only because one edict is about to expire while the next has yet to arrive.”
Alito and Gorsuch have been the most outspoken justices in finding that restrictions on religious organizations imposed during the pandemic violate the Constitution’s guarantee of free exercise of religion.
The court’s order in the Kentucky case took no stand on whether the Christian school was correct that it and other such institutions were being singled out. It said that the U.S. Court of Appeals for the 6th Circuit, which turned down the academy’s request, had not ruled on some of the issues the school raised at the Supreme Court.
“Under all of the circumstances, especially the timing and the impending expiration of the [governor’s] order, 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’s three-paragraph order said.
The school acknowledged that Beshear’s order applied equally to private schools — both religious and secular — and public schools.
But Kentucky Attorney General Daniel Cameron (R) and his deputies said that was not the only relevant comparison.
“Religious schools across Kentucky are closed while daycares, preschools, colleges, sports arenas, gambling parlors, offices, movie theaters, wedding venues, and big-box stores remain open,” their brief to the court said. “Today, a second grader, her parents, and a group of her classmates can go to the movies and then to the mall for Christmas shopping, but she cannot attend her religious school.”
The school was supported by the state’s two U.S. senators, both Republicans — Senate Majority Leader Mitch McConnell and Rand Paul — and a majority of their Republican Senate colleagues.
Beshear argued that closing the schools was a rational response to a spike in infections and that in-person K-12 education presented unique problems.
“Unlike the child at the movie theater, she does not go home when the movie is over,” Beshear’s brief said. “She remains in the classroom with all of the other students for an entire day of school — in a high-volume mixing environment involving hundreds of students and hundreds more adults — discussing the lessons of the movie with her classmates, laughing and talking with her friends, eating her lunch, and pausing for the occasional beverage.”
The brief added: “If she is a student at Danville Christian Academy and has her parents’ permission, she can do all that without a mask — and so can all the other students in her class.”
The court has struggled for months with emergency requests for relief from local restrictions.
After the death of Justice Ruth Bader Ginsburg and the confirmation of her replacement, Amy Coney Barrett, the court put aside its practice of deferring to local officials and instead blocked restrictions that governors have imposed on religious gatherings to try to stop the coronavirus from spreading.
In rejecting New York Gov. Andrew M. Cuomo’s restrictions in a Thanksgiving eve decision, the court said that judges must not let the limitations overburden the Constitution’s guarantee of the free exercise of religion.
“Members of this court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the five-member majority said in an unsigned opinion in Roman Catholic Diocese of Brooklyn v. Cuomo.
“But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
Since then, the justices have cast doubt on limits imposed by governors in California, New Jersey and Colorado. All had been upheld by lower courts.
Earlier this week, a panel of the U.S. Court of Appeals for the 9th Circuit rejected Nevada’s restrictions, relying on the Supreme Court’s decision.
It “arguably represented a seismic shift in Free Exercise law, and compels the result in this case,” the unanimous panel found.