This post arrives thanks to Erica M. Van Heyde, a 2020 graduate of The Ohio State University Mortiz College of Law, who joins Squire Patton Boggs as an associate in 2021.

Like most states, Kentucky is experiencing a surge in COVID-19 cases. Governor Andy Beshear has responded by implementing a number of public health measures aimed at quelling the spread of the virus. Among these was executive order 2020-969, which prohibited in-person instruction at all public and private schools in the Commonwealth. The order was quickly challenged by Danville Christian Academy, a Christian private school located near Lexington. The school, joined by Kentucky’s Attorney General, argued that enforcing the order against religious institutions violated the Free Exercise Clause of the First Amendment.

A district court in Frankfort, Kentucky granted a motion for preliminary injunction, restraining the Governor from enforcing the order against any private, religious school that otherwise adhered to Kentucky’s public health measures. The Governor (represented by his own counsel and adverse to the state’s Attorney General) immediately appealed to the Sixth Circuit, which on Sunday stayed the injunction via order.

In staying the injunction, the panel (Moore, Rogers, White, JJ.) focused on the plaintiffs’ likelihood of success on the merits of the constitutional challenge. The Free Exercise Clause, as applied to the states through the Fourteenth Amendment, provides that the states shall make no law prohibiting the free exercise of religion. Laws that discriminate against religious practices are subject to strict scrutiny and usually invalidated. By contrast, neutral laws of general applicability that incidentally burden religious practices are usually valid. The court concluded that the executive order in question fell into the latter category. The court reasoned that Governor Beshear’s 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 court distinguished the present order from orders that were successfully challenged in recent Supreme Court and Sixth Circuit precedent. Recently in Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court granted an application for injunctive relief from New York’s public health restrictions limiting attendance at worship services in areas with an increased risk of COVID-19 transmission. Those restrictions limited attendance at worship services to 10 people in areas designated as “red zones,” and 25 people in areas designated as “orange zones.” Because “essential businesses” were not similarly limited, the Court thought the restrictions were discriminatory against religious practice, warranting strict (and fatal) scrutiny. In a similar opinion issued last May, the Sixth Circuit had enjoined the enforcement of Kentucky’s stay-at-home orders prohibiting “faith-based” gatherings. The challenge in the earlier Sixth Circuit case had been brought by Maryville Baptist Church when Kentucky State Police issued notices to congregants that their attendance at the church’s drive-in Easter service amounted to a criminal act. In granting injunctive relief pending appeal, the court noted that general bans that cover religious activity may be discriminatory if the law provides exceptions for comparable secular activities. The court noted, “as a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non-discriminatory law.” The relevant order explicitly prohibited “faith-based” mass gatherings but provided exceptions for “life-sustaining” operations, allowing secular activities that the court concluded posed public health risks comparable to those posed by worship services. The exceptions allowed businesses such as law firms, liquor stores, and gun shops to continue to operate so long as they followed public health guidelines.

In this week’s opinion, the panel reasoned that Governor Beshear’s order prohibiting in-person schooling differed from the orders challenged in the above cases because the present order did not specifically target religious practices and did not have comparable extensive exceptions for secular activities. The order applied neutrally to all public and private schools in Kentucky and included exceptions only for “small group in-person targeted services,” and “private schools conducted in a home.” Therefore, the court reasoned that, unlike the orders in Roman Catholic Diocese and Maryville Baptist Church, “the contours of the order at issue here . . . in no way correlated to religion and cannot be plausibly read to contain even a hint of hostility towards religion.”

The plaintiffs promptly appealed to the Supreme Court, filing an emergency application to vacate the stay. Justice Kavanaugh called for a response to the application by today. We will stay tuned.