Danville Christian Academy sought to duck a requirement that all K-12 schools temporarily stop in-person instruction as coronavirus infections surge.
The ruling followed other cases in which the Supreme Court blocked coronavirus restrictions on religious gatherings. The court ruled in New Jersey, Colorado, California and New York cases that religious gatherings cannot be restricted more than businesses. Crowded houses of worship tend to be more dangerous for COVID-19 transmission than most businesses, state and local authorities argued. Religious institutions claimed their services were subject to stricter rules than comparably dangerous secular activities.
In this case, the private school, backed by Kentucky’s Republican attorney general, argued it should be treated not as a school but as a business allowed to remain open with some restrictions. Otherwise, the school said, the state order is an unconstitutional violation of rights to religious freedom.
The Supreme Court ruled in an unsigned order that it would not now exempt the school from the restriction — but left open the possibility of the school to returning to court in the future. Timing appeared to be a key issue. Schools are about to go on holiday break, and Kentucky Gov. Andy Beshear’s (D) restriction on in-person instruction will expire before schools reopen Jan. 4.
“Under all of the circumstances, especially the timing and the impending expiration of the [governor’s] 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,” the court said in its order.
Justices Samuel Alito and Neil Gorsuch dissented. Gorsuch apparently agreed with the school that COVID-19 restrictions were “potentially” unconstitutional.
“I would not leave in place yet another potentially unconstitutional decree, even for the next few weeks,” Gorsuch wrote.
The school argued it was being singled out for the restrictions, but acknowledged the state’s order applied to all schools, both private and public, and to secular private schools as well as religious educational institutions.
Attorney General David Cameron argued the restriction was unfairly applied to schools, while day care, sports arenas, colleges, betting parlors and movie theaters were allowed to remain open.
Beshear, however, argued in his brief that schools are more dangerous for COVID-19 transmission than movie theaters, for example, because groups of children spend the entire day together in schools, offering far more opportunities for infection.
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