FRANKFORT, Ky. (FOX19) - A lawsuit challenging one of Gov. Andy Beshear’s orders on the grounds it unfairly burdens religious schools will not be heard by the Supreme Court.
The Court denied the application Thursday.
Attorney General Daniel Cameron joined the lawsuit, as he has several other suits challenging the governor’s pandemic orders, and was outspoken in his support of it.
“The things we’ve put into place have worked,” Beshear said in a statement Thursday night. “We still have a lot longer to go in battling this virus, but I hope when we know things will work, that in the future everybody will say ‘We’ll do our part. We don’t want to be an exception; we want to be part of the solution.’”
In particular, the case challenges the order’s impact on religious schools.
A U.S. District Court issued a preliminary injunction against the order Nov. 25, effectively granting religious schools the right to hold in-person classes.
The Sixth Circuit Court of Appeals reversed that injunction, saying they “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.”
Cameron and others put forward several arguments on behalf of the religious schools, the main one being that the order treats schools, religious and non-religious, worse than restaurants, bars and gyms, which the order permitted to remain open with restrictions.
Cameron says that runs afoul of a test created in a previous case (Employment Div., Dept. of Human Resources of Ore. v. Smith) that all such orders must be neutral and generally applicable.
Last month, the court used that test in Roman Catholic Diocese of Brooklyn v. Cuomo to find governors cannot impose more stringent restrictions on religious institutions than they do on secular gatherings. The lawsuit was filed after New York Gov. Andrew Cuomo created an executive order limiting the number of people who can attend worship services to halt the spread of COVID-19.
Beshear previously said his order treats “everybody the same, every school the same” and that “all we are asking of them and others is to do their part to stop this virus.”
He made the same argument Thursday: “(...) We didn’t close any school, we just moved them to online, virtual instruction, and I think that’s important, because suggesting a school is closed suggests that educators aren’t working with students to provide the best experience possible, and they are doing a heck of a job.
“The second thing is, in no way were religious schools treated any differently. We asked everybody to make the same sacrifices. Everybody. Every school. Not picking on anybody, just asking every school to do the exact same thing. And guess what? We see with that and other steps it stopped an exponential growth that was threatening our hospital capacity.”
The Supreme Court didn’t use the Smith test or decide on the substantive constitutional issue, instead denying the application due to the order’s impending expiration.
“The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed,” the Court wrote.
“(…) 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.”
Justices Samuel Alito and Neil Gorsuch dissented.
A governor, Gorsuch wrote, should not “be able 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.
“Come January 4, a new school semester will be about to start, and the Governor has expressly told us that he reserves the right to issue more decrees like these if and when religious schools try to resume holding classes. Rather than telling the parties to renew their fight in a month, asking the Sixth Circuit to resolve the case now, under accurate legal rules, would be better for everyone—from the parents who might have to miss work and stay home should decrees like these be upheld, to the state public health officials who might have to plan for school if they are not.”
The suit remains on the docket of the district court, according to Alito.
“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,” he says.
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