Private religious K-12 schools will be expected to close Monday, along with public ones, under a ruling from the U.S Sixth Circuit Court of Appeals handed 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 religious freedom. Van Tatenhove had sided with Danville Christian Academy and Kentucky Attorney General Daniel Cameron in their request for a preliminary injunction blocking the order from impacting private religious schools.
In the Sunday ruling, the appellate court disagreed, on the grounds that the order did not specifically target religious schools.
"[The executive order] applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest," the panel of three judges wrote.
"Any burden on plaintiffs' religious practices is 'incidental' and therefore not subject to strict scrutiny," the order reads.
The ruling draws on a concurring opinion from Justice Brett Kavanaugh in a 2020 U.S. Supreme Court decision blocking New York Governor Andrew Cuomo from imposing coronavirus restrictions on Catholic churches. In that ruling, Supreme 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 of the devastating pandemic, . . . the 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 to the lower court ruling the appellate judges deferred to the governor's judgement.
"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 wrote.
"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 order reads, quoting the 2020 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 decision.
"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 their part. While we all want to get our kids back to in–person instruction, the United States Court of Appeals for the Sixth Circuit recognized that doing so 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 appeal to the U.S. Supreme Court.
"We're disappointed with the Sixth Circuit's ruling allowing the Governor to close religious schools, but we're already hard at work to take this matter to 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 can only reopen if their county is not in the "red zone" on the state's coronavirus dashboard. Middle and high schools must remain closed until Jan. 4.