Kentucky Religious Schools Have First Amendment Right to Reopen, Says Federal Judge

Eugene Volokh:

In Wednesday’s Danville Christian Academy, Inc. v. Beshear (E.D. Ky.), Judge Gregory F. Van Tatenhove’s granted a preliminary injunction that allowed religious schools to reopen in Kentucky; the governor’s closure order, the court concluded, violated the Free Exercise Clause. (The order was promptly appealed, and presumably Governor Beshear will ask the Sixth Circuit to hear the case on an expedited basis.)

[1.] The opinion concluded that there was sufficient evidence that the closure order burdened Danville Christian’s Free Exercise Clause rights:

To begin, the parties do not facially dispute that Danville Christian has a sincerely held religious belief in conducting in-person instruction. Nevertheless, the Governor argues that the fact Danville Christian halted in-person teaching earlier during the pandemic, when faced with an infected member of its community, seriously undermines the irreparable harm requirement of a preliminary injunction. By implication, this raises a challenge to the school’s sincerity. In response, Danville Christian argued that the halt in holding in-person instruction was a voluntary short-term act taken out of deference to the community, and now that more is known about the virus and other measures can be taken to allow classes to resume safely, it would violate Danville Christian’s First Amendment rights to force the school to hold virtual instead of in-person classes.

Exercising a judgment call to close for a short period of time when far less was known about the virus cannot now effectively counter its conviction. Danville Christian has presented evidence of the significance of in-person instruction, including the holding of weekly chapel services and corporate prayer throughout the day. The Court is also cognizant of the role of daily in-person mentorship of religious values that occur in religious schools that is simply not as feasible in a virtual setting. In extending the ministerial exception to private school teachers in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court expressed that in the First Amendment context, faith and education go hand in hand. “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Therefore, insofar as it relates to the irreparable harm prong, the Court finds this to be sufficient to demonstrate Danville Christian’s sincerely held belief.

[2.] The court then concluded that the closure order wasn’t neutral and generally applicable (and thus didn’t fall within Employment Division v. Smith) because it treated schools worse than preschools and universities: