CNA Staff, Dec 7, 2020 / 04:37 pm (CNA).- An order shuttering in-person education until Jan. 4 in Kentucky amid rising COVID-19 cases amounts to religious discrimination, the US Supreme Court has been told in amici curiae briefs.
Kentucky Gov. Andy Beshear (D) temporarily halted in-person learning in the state by executive order.
The order, which applies to both public and private schools, allows for elementary schools in “red” zones (counties with 25 or more new coronavirus cases a day) to reopen as long as they are following state public health guidance.
Danville Christian Academy sued over the order.
A federal district judge had ruled Nov. 25 that Beshear’s order could not apply to private religious schools because it infringed on their First Amendment rights. On Nov. 29, a federal appeals court overturned that decision, upholding Beshear’s original order.
Danville Christian Academy has asked the US Supreme Court to temporarily suspend the executive order, while its appeal is pending.
Several groups have submitted amici curiae briefs in the case in support of Danville Christian Academy.
Thirty-eight Republican Senators – including Senate Majority Leader Mitch McConnell and Sen. Rand Paul, both of Kentucky – filed one such brief Dec. 4.
“COVID-19 is undoubtedly a serious health threat, but the Constitution applies even in difficult times. This Court should again remind Governors across the Country that shutdown orders cannot trample Constitutional rights,” the Senators stated in their amicus brief.
The state’s attorney general and treasurer have also indicated their support for Danville Christian Academy.
The Becket Fund for Religious Liberty submitted an amicus curiae brief, arguing not only “That movie theaters and horse tracks are open for business, but religious schools cannot open, is reason enough to vacate the Sixth Circuit’s stay,” but also that Beshear’s executive order is subject to strict scrutiny because it interferes “with the right of parents under the Free Exercise Clause to direct ‘the religious upbringing and education of their children’”.
Alliance Defending Freedom’s senior counsel, John Bursch, and other ADF attorneys filed an amicus curiae brief on behalf of 17 Christian schools in Kentucky.
“The Kentucky governor’s order allows movie theaters, indoor event venues, gyms, childcare centers, and professional offices to operate, but private Christian schools cannot, even when they comply with all recommended public health and safety guidelines. That’s why we are asking (the) high court to put a stop to the governor’s unconstitutional edict,” Bursch said Dec. 4.
“Government discriminatory treatment of religion must end. Now,” the ADF brief in Danville Christian Academy v. Beshear states.
“In the nine months since the COVID-19 pandemic began, state executives have consistently imposed more severe burdens on religious conduct than comparable secular activities. They do so without any showing that religious activities present a greater COVID-19 risk than their secular comparators,” ADF added.
“Instead, governments have consistently favored commerce over religion and—often with a judicial seal of approval—have cloaked their disparate treatment of religious worship and education in terms like ‘emergency police powers’ and ‘substantial discretion.’”
Religious schools and churches have also submitted briefs in support of Danville Christian Academy, while a group of church-state scholars wrote one in defense of Beshear.
Beshear defended his order, citing health risks and the order’s equal treatment of public and private schools. “Kentucky is in the midst of a deadly third wave of the coronavirus. We have taken the necessary actions to slow the growth in cases and save the lives of our fellow Kentuckians,” Beshear said in a Dec. 4 statement, reported by the Courier Journal.
“In the most recent executive order regarding schools, every school is treated equally and each is asked to do its part over a limited period of time to slow the spread of the virus. The effectiveness of these actions requires everyone to take part, and anyone or any entity that tries to be the exception lessens the effectiveness of the steps,” he added.
Bursch pointed to the U.S. Supreme Court’s decision in late November, which ruled that New York Gov. Andrew Cuomo’s restrictions on religious services during the coronavirus pandemic were a violation of the First Amendment’s protection of free religious exercise.
“As the U.S. Supreme Court said in its recent order halting Gov. Andrew Cuomo’s executive order in New York, ‘even in a pandemic,’ the First Amendment is not ‘put away and forgotten,” Bursch stated.
The federal appeals court which ruled to uphold Beshear’s order said that the case was “distinguishable” from Cuomo’s order, since the Kentucky order applied to both religious and public schools, the Courier Journal reported.
The case also comes shortly after the four bishops of Kentucky announced in late November that they will continue holding in-person Masses, despite Beshear’s order for all places of worship to halt in-person services until Dec. 13.
Schools throughout the United States have grappled with what to do about in-person learning after the coronavirus pandemic caused nationwide shutdowns last March. Though the country saw a dip in coronavirus cases over the summer, recent surges this fall, shortly after classes resumed, have caused some schools to close again, and some states to reinstate lockdowns or stay-at-home orders.
Catholic schools have worked to put extensive health and safety regulations in place, including mandatory masking and social distancing, and virtual options for families who choose to keep their children at home. Some Catholic school leaders and bishops have argued that children have a right to in-person learning, which can help to ensure the quality of their education and to prevent their social isolation.
Some Catholic schools, such as those in Baltimore, have seen spikes in enrollment this fall because they are offering in-person learning more consistently than area public schools.
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I am happy to see that some bishops are finally starting to confront the lockdown mentality simply by refusing to cooperate. I pray that this trend will continue.
BRAVO!!! FINALLY!!!! An Archbishop with a spine. So good to see. Maybe his courage can be exported to Catholic Dioceses in other states. It’s needed badly!! Maybe they have finally realized the State is not interested in the general health of their citizens. They ARE interested in suppressing and eliminating the influence of the church TOTALLY. Finances are ruined, people are not returning to church, etc. I hope Kurtz sticks with his guns. The state is already destroying families with its orders that limit crowd size in private homes and most of all by making the population hysterical over covid, which has a better than 99% recovery rate. Hysterical enough that they dont want to see their own family members.The church is also a target, it could not be clearer.
People who have recovered from COVID 19 say “you must protect yourself from the virus”. The serious nature of this most debilitating virus is still not fully understood”. Scientists reveal that serious side effects from the virus may be life threatening with life long ailments.
Car crashes also cause life long “ailments,” but most people drive a car to Mass.
An absurd analogy. My Mother had to walk.
In point of fact, I had covid in April. At age 66 I am not young, but neither am I health compromised. In my case while I spent 2 weeks in bed feeling weak, I came nowhere near needing hospitalization and had no breathing difficulty. I am ( and have been throughout) unwilling to live what remains of my life in fear, hiding in a hole. That is not living to me. I welcome the idea of the vaccine. I have been distressed at the OTHER damage inflicted by the shut downs, which are now well known. People dying from addiction, abuse, suicide, other untreated maladies, mental illness, etc. There are varied physical reaction to this virus, depending upon the person. The media acts to stress hysteria, an unhelpful thing to do with a disease which has a better than 99% recovery rate. AS far as church is concerned, I think the Bishops in their rush to be helpful in fact did major damage to the church and their flocks.Those who are afraid should by all means avoid church. Those of us who wish to go, have a constitutional right to do so. Hopefully todays rebuke of Governor Cuomo of NY by the Supreme Court will put some perspective back into the issue for some of these power mad Governors.. personally it feels like a persecution of the church to me.
Well said lj and I agree with you 100%
Morgan,
Good morning to you! I hope you had a blessed Thanksgiving.
I think you bring up a good point. I know an elderly lady in our parish who has still not fully recovered from Covid. She has some kind of neurological damage months later after the infection.
If the virus actually was tweaked in a Chinese lab there could be some uniquely creepy side effects, but we really don’t know. And what are the longterm side effects of any potentially lethal virus on an elderly person?
The facts appear to show that the overwhelming number of people who catch Covid will have milder symptoms with it. As we grow older, we need to be more concerned about it. And there are a number of younger people with diabetes and other conditions who need to take care also. Thats especially true where I live.
But we can’t shut down the whole nation and cause deaths from other sources to continue to rise.Suicides and drug overdoses are at terrible levels right now.
Nor should restrictions be made on our religious freedom. At some point vulnerable people need to shelter and the rest get on with their business.
For the sake of everyone else morgan, please stay home and self-quarantine from the rest of society – including the internet – until there are absolutely no risks whatsoever in contracting a virus either outside or online.
Were you in the unmasked crowd in attendance at the Rose Garden super spreader unmasked Trump rally? Trump’s good example for anyone to follow. Your vitriolic response tells me YOU may be in need of quarantining. Wear a mask to keep others safe! And, don’t minimize the raw fact that there are more than 1,000 infections per day contributing to the number of 260,000+ innocent souls who have died! You could call that loss of life criminal. Stay safe.
Pullleeze, get a life.
Well said.
Will the new 5-4 Supreme Court decision suspending New York’s discriminatory covid treatment of religious services render all state discrimination void?
They need to keep pushing back at these restrictions and we need more Bishops to stand up for their sheep. The surge does not nor has not come from our Masses.
Given the disastrous spike in COVID 19 in the US and with the loss of life of over 260,000 souls my Catholic concern is caution. With the holidays upon us the potential for a pandemic explosion is very real. Scientists report that the COVID virus is out of control here. Our hospitals and staff are stretched beyond their ability to properly attend to other seriously ill patients, (heart attacks, strokes, cancer, etc). How can we dismiss their plight? It is interesting that our hierarchy call on us to protect all life. How can they say that ignorance of the hundreds of deaths is not sinful?
Archbishop Joseph E. Kurtz of Louisville, Ky…
“The Sunday obligation for Catholics to attend Mass, however, is still suspended in the state. Catholics do not have to attend Mass on Sunday if they think it is imprudent or unsafe to do so.” Jewish and Catholic services being cherished by all faithful parishioners. Their sacred duty should be carefully addressed.
President elect Biden says we should “heal our democracy. We are all in this together”.
Your post, as usual, is peppered with falsehoods and reflects irresponsible and uninformed fear-mongering. There is no explosion of cases, our hospitals are not stretched beyond capacity, and the deep ignorance of your post is sinful. And you are either profoundly ignorant or profoundly malevolent if you think Biden is going to unify the country.
That is actually not entirely true about hospitals not being over run. Depends on locale. A friend’s cousin works at a large hospital in an urban area. She is assigned double the patients because the administration refuses to hire more nurses–supposedly they cannot afford to hire more. The surgery floor is now a Covid floor–there are no surgeries (knee, hip replacements) because people are postponing them.
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Some areas are still delaying cancer treatments, or so people have claimed on FB.
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Covid is crowding out more lucrative procedures, but that seems to be all there exists right now. The medical profession has itself in a real pickle.
Ditto
Ignorance of reality? Me? Your vitriol sheds light on your intent to confuse. It is quite obvious that you hold no respect for the facts. Enlighten yourself!
Not-yet-and-by-God’s-grace-perhaps-never-to-be-President-elect Biden is perfectly fine with babies being butchered, so I don’t think he’s at all interested in saving human lives.
Also it would be easier to “heal” if he hadn’t spent the last considerable time calling half the country Nazis.
If we lived in a democracy instead of a Constitutional republic, mob rule would prevent you from posting nonsense on the internet, morgan.
Not sure what you point is? Are you supporting the Bishop, because you do point out that we are still dispensed at our own judgement. That is the best. If you don’t feel safe stay home. The arbitrary classification of essential businesses is not scientific to put it mildly. And as for your praise of the most pro abortion ticket in history bringing unity, you are delusional.
To Biden: “Physician, heal thyself.”
There have been 1825 COVID deaths in Kentucky; 36 yesterday (Nov. 25).
Attendees at mass should understand the risk to which they are exposing themselves and which the church is encouraging.
In our parish the demographic at mass tends toward the most at-risk groups.
Goodness, people in Kentucky must be more resilient than in our state. We’ve had close to 6,500 deaths attributed to Covid. We’re not closing down churches here.
Folks who have vulnerabilities due to age or chronic illness should protect themselves. Our parish broadcasts the Mass outside on a PA system and we can attend that way or inside the church. And receive Communion.
There are close to 5 MILLION people in Kentucky. Given that fact, while any death is sad, the deaths of less than 2000 people over almost a year cannot be used to justify the draconian disruption of human lives, the economy and our social order on so many levels. My bet would be they have lost more folks in that time to cancer or heart disease. In NY, when our churches were “allowed” to reopen, our pastor had duct tape put in places on the pews where people were not allowed to sit in order to social distance, and much sanitizing of hands is done before communion by the priest and the EMs. Our church can hold 800 people under ordinary seating situations. Its absurd to be limited to 10 people in a church that size. Our demographic, like most Catholic churches, also skews older. If you are not comfortable going to Mass, dont. Those people though, should have NO right to shut down religious services for others. That what we have a constitution for. How nice that at least 5 of our Supreme Court judges know that. As for the other 4 judges, I can only say , “pathetic”.
Bravo to Archbp. Kurtz.
Are we seeing the beginnings of a movement?
They do understand the risks, and as responsible adults they can take the necessary precautions. There is no justification for the government’s attempts to violate citizens’ first amendment rights to the free exercise of religion.
Many people actually say no such thing. I know several people who were mildly sick for a few days and then went on with their normal lives without any long term complications. More dishonesty and fear-mongering on your part. The science has clearly indicated that people with additional health issues are most vulnerable. They need to take precautions while the rest of us get back to living productive lives. Stop lecturing people morganb.
Note that this is a REQUEST. Granted that it does take some modicum of backbone to refuse to acquiesce to the request, but it is not the same thing as “disobeying” an unjust “law.”
What would have happened if it was an order? Would you have a few policemen show up during the service and command to disband? Then perhaps people would be unlawfully arrested if nothing happened? If this scenario played out, it would be justified for the congregation to violently resist unlawful arrest and assist those who were being put under unlawful arrest.
Recovery rate >99%.
If you are afraid…stay home. Caesar wants you to be afraid.
I will not live my life in fear. TYVM.