Diary

Rights Delayed Are Rights Denied -- Again!

(AP Photo/Adam Beam)

As I noted in Rights delayed are rights denied, Governor Andy Beshear’s executive order closing all public and private Kindergarten through 12th grade schools had been expeditiously appealed, but the Supreme Court sat on the case. Now, in Danville Christian Academy v Beshear, the Court did just as I guessed it would: it let the case go moot.

On November 18, the Governor of Kentucky issued a temporary school-closing Order that effectively closes K–12 schools for in-person instruction until and through the upcoming holiday break, which starts Friday, December 18, for many Kentucky schools. All schools in Kentucky may reopen after the holiday break, on January 4. . . . .

The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed.

Uhhh, yes, there is! Governor Beshear has already ‘recommended’ that schools delay opening another week, until January 11th, and while he did not make that an order, quite possibly because he knew it would impact the case and it contradicted his own Court filing, he is now free to make it an order.

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.

In other words, the Court would entertain a new case, should the Governor issue another executive order, but all of that takes time, and money. With Christmas break about to start, the Governor could easily wait until Saturday, January 2nd, to issue another executive order. Since the Sixth Circuit’s order is the current precedent, a trial judge would have to deny another request for a stay, then it be appealed to the Sixth Circuit, which would almost certainly rule the same way, followed by an application to the Supreme Court, and how many weeks more would the free exercise of religion and freedom of assembly be denied to the people of the Bluegrass State?

In his dissent, Justice Samuel Alito noted that the delay was not the fault of the appellants:

(I)n my judgment, it is unfair to deny relief on this ground since this timing is in no way the applicants’ fault. They filed this action on November 20, 2020, just two days after the issuance of the Governor’s executive order. And when, on November 29, the Sixth Circuit granted a stay of the order that would have allowed classes to resume, the applicants sought relief in this Court just two days later, on December 1. It is hard to see how they could have proceeded more expeditiously.

Justice Neil Gorsuch also dissented:

Nor should a Governor 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.

Courts have a broader equity at stake here too. In their struggle to respond to the current pandemic, executive officials have sometimes treated constitutional rights with suspicion. In Kentucky, state troopers seeking to enforce gubernatorial orders even reprimanded and recorded the license plate numbers of worshippers who attended an Easter church service, some of whom were merely sitting in their cars listening to the service over a loudspeaker.

Recently, this Court made clear it would no longer tolerate such departures from the Constitution. We did so in a case where the challenged edict had arguably expired, explaining that our action remained appropriate given the Governor’s claim that he could revive his unconstitutional decree anytime. That was the proper course there, as I believe it is here. I would not leave in place yet another potentially unconstitutional decree, even for the next few weeks.

For these reasons, I respectfully dissent. I would grant the application, vacate the Sixth Circuit’s stay, and remand the matter for further consideration under the proper legal standards.

As Justice Gorsuch noted, the Court could have vacated the Sixth Circuit’s stay, and then the expiration of the Governor’s order would have been forced to stay expired. If the Governor wanted to close religious schools again, he’d have to go at it differently. I had higher hopes for Justices Thomas, Kavanaugh and Barrett.

Of course, the vast majority of students in the Commonwealth attend the public schools, over which the Governor indisputably has authority. If the Governor wanted to close down the public schools, he could do so. Since it was only the religious private schools seeking relief, the Governor’s order would also apply to secular private schools.

As I wrote previously, I do not trust Governor Beshear: with the Supreme Court having dismissed Danville Christian Academy’s case as moot, I have very little doubt that Mr Beshear will once again enact executive orders restricting religious private schools. He has already indicated, as noted above, that he believes the schools should stay closed yet another week, and he could issue an order to that effect without any fear that the Supreme Court would invalidate it, because of the time factor.

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.
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