Diary

Some good news from the Supreme Court on Freedom of Religion

(AP Photo/Jim Salter)

I have frequently harped on written about Governor Andy Beshear’s (D-KY) attack on religious freedom by closing down private religiously affiliated schools, and noted that the Supreme Court has still not acted upon Danville Christian Academy’s appeal of the Sixth Circuit Court of Appeals upholding the Governor’s orders.

Danville Christian Academy’s case is facially different, because the Governor’s orders close down all schools, public and private, and are thus not treating the private or religious schools differently from the public ones, and that may be why the Supreme Court has not issued an injunction based on Catholic Diocese of Brooklyn v Cuomo.

However, there is some good news from the Court today, as documented by Amy Howe in SCOTUSblog:

Justices revive religious groups’ attempts to block COVID-related restrictions in Colorado, New Jersey

by Amy Howe | Tuesday, December 15, 2020 | 3:21 PM EST

The Supreme Court on Tuesday tossed out a pair of lower-court rulings that had permitted states to enforce COVID-related restrictions at worship services. The two brief orders from the justices instruct the lower courts to take another look at religious groups’ challenges to restrictions in Colorado and New Jersey – and this time, the justices indicated, the lower courts should decide the challenges in light of the Supreme Court’s Nov. 25 ruling that lifted New York’s COVID-related limits on attendance at worship services.

Tuesday’s orders are further evidence of the broader impact of the New York ruling, which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic.

In the Colorado case, the justices threw out an Aug. 10 order by a federal district court that denied a request by High Plains Harvest Church, a small church in northern Colorado, to bar the state from enforcing capacity limits. Justice Elena Kagan dissented from Tuesday’s order, penning a brief opinion – joined by Justices Stephen Breyer and Sonia Sotomayor – in which she argued that the case was moot because Colorado has already lifted the limits at issue.

There’s much more detail at the original, but one thing is becoming increasingly clear: thanks to the replacement of Associate Justice Ruth Bader Ginsburg with Amy Coney Barrett, there is now a Supreme Court majority which strongly believes in freedom of religion, at least as far as activity in church is concerned. There may be less of that strong belief when it comes to religious schools.

As an update to my article noting that the Court’s inaction on the Danville Christian Academy case, while Governor Beshaer’s response included the claim that his order was “a time-limited executive order that is set to expire in just four weeks,” January 4th, he has now “recommended” that in-person classes not be resumed until January 11th. With the case about to go moot — the Christmas holidays will be beginning in less than a week, and regularly scheduled classes wouldn’t resume until January 4th anyway — the Governor has not yet made it an executive order, so, presumably, it would not change his filing in the case.

But I do not trust Governor Beshear: if the Supreme Court dismissed Danville Christian Academy’s case as moot, I have very little doubt that Mr Beshear would once again enact executive orders restricting religious private schools. I am hoping that the General Assembly, which will begin the next session in January with Republicans holding veto-proof majorities in both chambers, will amend KRS 39A to greatly limit the Governor’s ’emergency powers’ in a way which will both protect all of our constitutional rights from such orders and limit what executive authority he has to issue such orders to a brief time, requiring consent from the legislature for any extensions.

That is what the Republican leadership have promised. However, a Supreme Court decision that religious schools are also protected under the First Amendment would provide relief for religious schools across the nation, where action by the General Assembly would protect only Kentuckians.
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