The Supreme Court is poised to resolve another big COVID-and-religious-freedom application—this time involving Kentucky’s attempt to shut down all in-person instruction in religious schools. Here are the key things you need to know: https://www.supremecourt.gov/DocketPDF/20/20A96/162186/20201201110258420_Filed%20Application.pdf

First, Kentucky is on shaky legal ground. Just last week, #SCOTUS ruled in the Diocese of Brooklyn case that religious worship could not be “effectively barr[ed]” when New York allowed so many other activities to continue: https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf

Kentucky @GovAndyBeshear and the Sixth Circuit should have taken the hint. Instead, the Governor pressed on despite a district court injunction, and on Sunday a Sixth Circuit panel let him close all religious K-12 schools: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0371p-06.pdf

The Sixth Circuit tried to evade Diocese of Brooklyn by looking at a far tinier set of comparators—only other K-12 schools—rather than (like #SCOTUS) looking at *all* the activities that KY allows, including even movie theaters and racetracks.

That makes this an easier case than Diocese of Brooklyn. #SCOTUS seems unlikely to buy the absurd idea that the Gov. has carte blanche to close religious schools merely because he’s also closing other K-12 schools.

And that’s especially so because the Governor is giving a better deal to politically influential businesses like movie theaters and racetracks, and isn’t closing other schools, like preschools and colleges.

Second, this case is easier than Diocese of Brooklyn because the Court has already set down some (binding) guidance on this issue that can simply be applied here. Before last Wednesday, the Court had not spoken *as a Court.*

Third, this is also an easier case because the Supreme Court’s standard for vacating a stay is a far lower hurdle than the standard for issuing an injunction.

The dissenters in Diocese of Brooklyn justified their dissents by pointing to the very high injunction standard. But here the standard is not nearly so high. Ruling for Danville Christian would merely reinstate the district court’s injunction.

Fourth, this case is about the right to religious education, which is not subject to the general rule of Employment Division v. Smith, but instead to the separate Yoder/Pierce line of religious education cases, which Smith expressly preserved.

We spelled out this argument in our Lebovits v. Cuomo case on behalf of a Jewish girls’ school in Queens: https://s3.amazonaws.com/becketnewsite/2020-10-19-6-2-Memo-ISO-Order-to-Show-Cause-for-TRO.pdf

As Yoder held, parents’ right to direct the religious education of their children is “specifically protected by the Free Exercise Clause.” Smith reiterated that religious education is a special case, and Espinoza reaffirmed as much last Term.

Governor Cuomo responded to the Lebovits religious-schools argument by lifting the restrictions on religious schools in Queens. Other govt officials have also recognized the special free exercise protections for religious schools.

E.g., after a lawsuit was filed against him, California Gov. Gavin Newsom agreed to a consent decree allowing certain Jewish, Catholic, and Protestant schools to reopen in LA County: https://jewishjournal.com/news/324641/ca-religious-schools-granted-relief-from-newsom-school-closure/

In a final odd note, CA6 seemed to discount the importance of religious education, limiting it to ministerial exception cases. But #SCOTUS’s recent Our Lady decision says religious education is “vital” and “important” to religious groups, full stop. https://www.supremecourt.gov/opinions/19pdf/19-267_1an2.pdf

A basic truth lies at the heart of this case: It is simply foreign to the American understanding of religious liberty to keep movie theaters and horse tracks open while closing religious schools that everyone agrees are vital to the religious communities they serve. /END