By Zachary Stieber
The Supreme Court has rejected an attempt to prevent Kentucky’s governor from ordering religious schools to halt in-person learning.
In an unsigned opinion issued last week, the nation’s highest court said Gov. Andy Beshear’s order “effectively expires this week or shortly thereafter, and there is no indication that it will be renewed.”
Danville Christian Academy, which filed the suit, argued that while Beshear’s order treated public and private schools the same, schools as a whole were treated more severely than bars, restaurants, and other entities.
The institute and Kentucky Attorney General Daniel Cameron said in their joint filing to the Supreme Court that the governor allowed “virtually all other in-person activities and indoor gatherings” in the state to continue, including daycares, colleges, gyms, and bowling alleys.
“To summarize, 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 day care or preschool. And college students can attend classes. But all of Kentucky’s religious schools are shuttered,” they said.
But the Supreme Court dismissed the argument, alleging the suit didn’t properly address a past ruling, Employment Div., Dept. of Human Resources of Ore. v. Smith.
“Under all of the circumstances, especially the timing and the impending expiration of the 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 wrote.
Justice Samuel Alito, a George W. Bush appointee, wrote in a dissent joined by Justice Neil Gorsuch, a Trump appointee, that he would have vacated the lower court stay of the initial ruling, which was in favor of the religious school.
Alito said the Supreme Court’s new order “is based primarily on timing,” because the order is set to expire soon.
“The Court is therefore reluctant to grant relief that, at this point, would have little practical effect. I understand that reluctance, but in my judgment, it is unfair to deny relief on this ground since this timing is in no way the applicants’ fault,” he wrote, noting that the appeal was filed to the Supreme Court over two weeks prior.
“As things now stand, this action remains on the docket of the District Court. If the Governor does not allow classes to begin after the turn of the year, the applicants can file a new request for a preliminary injunction, and if the lower courts do not provide relief, the applicants may of course return to this Court.”
In a statement, Kelly Shackelford, president of First Liberty Institute, which represented the school in the case, said it would file against the governor if he reissues his order when it expires next month.
The ruling came after District Judge Gregory Van Tatenhove in Kentucky blocked Beshear’s restrictions, arguing they infringed on “protected values.”
That ruling was stayed by a panel of the United States Court of Appeals for the Sixth Circuit.
The Supreme Court recently blocked restrictions imposed on religious services in New York, California, Colorado, New Jersey, and Nevada, in its new composition that includes Trump appointee Justice Amy Coney Barrett.
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