The U.S. Sixth Circuit Court of Appeals sided with Kentucky Gov. Andy Beshear after U.S. District Court Judge Gregory Van Tatenhove granted an injunction preventing Beshear from forcing private and faith-based schools to close.
Van Tatenhove found that Beshear’s order violated the First Amendment, siding with Danville Christian Academy and the state’s Attorney General Daniel Cameron. On Sunday, the Court of Appeals overruled Van Tatenhove’s decision.
The three-judge panel said that 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 cited Supreme Court Justice Brett Kavanaugh’s concurring opinion in a Supreme Court case that actually blocked New York Gov. Andrew Cuomo from placing restrictions on Catholic churches. The panel wrote, “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 panel deferred to Beshear, writing, “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.” They continued, “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.”
All Kentucky K-12 schools will be forced to cease in-person instruction.
Beshear issued a statement, saying,
“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.”
Prior to the decision, Cameron had issued a brief to the Court of Appeals. Cameron said,
“The District Court’s ruling was incredibly clear: a religious education is an important component of religious expression and is protected by the U.S. Constitution. In a separate case, the U.S. Supreme Court ruled this week that governors cannot impose more stringent restrictions on religious institutions than they do on secular gatherings, which Governor Beshear is currently doing in Kentucky by banning in-person instruction at religious schools.”
Cameron added that the governor continues to “target religious schools and saying he has the power to suspend state law protecting Kentuckians’ religious liberty.”
On Thanksgiving Day, he tweeted, “It’s frightening that the Governor believes he can suspend religious liberty. The Governor is not above the law, and we urge him to drop this ill-conceived appeal and to halt his attacks on religious freedoms.”
He later tweeted, “Emboldened by the Supreme Court of Kentucky’s recent decision, the Governor claims that he suspended the Kentucky Religious Freedom Restoration Act, a law that the Legislature passed by overwhelming majorities to protect the religious liberties of Kentuckians.”
The Kentucky Religious Freedom Restoration Act was vetoed by Beshear’s father, former Gov. Steve Beshear.
In response to the panel’s decision, Cameron announced that he would be appealing the case to the Supreme Court. He tweeted, “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.”
Beshear’s order keeps middle and high schools closed until at least January 4 — despite the opinion of many health experts that school-age children face virtually no risk of serious complications from COVID-19 and are not likely transmitters of the disease.