Judge blocks Beshear's ban on in-person religious schooling as the U.S. Supreme Court shifts the same way on a similar issue

By Al Cross

Kentucky Health News

A federal judge issued an injunction Wednesday night that allows religious schools in Kentucky to continue in-person instruction, contrary to Gov. Andy Beshear's order to stop in-person schooling to prevent spread of the novel coronavirus.

“The governor has every right to impose some restrictions on all schools, religious and secular alike,” District Judge Greg Van Tatenhove wrote. “Social distancing, face masks, limits on class size, reporting requirements and other protocols may cost money and may be inconvenient for parents and students, but we give executives increased discretion in time of crisis. But in an effort to do the right thing to fight the virus, the governor cannot do the wrong thing by infringing protected values.”

Judge Greg Van Tatenhove

Van Tatenhove exempted from Beshear's order "any religious private school in Kentucky that adheres to applicable social distancing and hygiene guidelines," saying that Danville Christian Academy and schools that joined its lawsuit were likely prevail if the lawsuit goes to trial. The school's attorneys had noted that the Boyle County Health Department said the school was following proper precautions.

Van Tatenhove wrote, "Danville Christian has presented evidence of the significance of in-person instruction" protected by the First Amendment, including the "prayer throughout the day" and weekly chapel services, and he knows "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."

Beshear has appealed to the U.S. Court of Appeals for the Sixth Circuit and has asked it to stay the injunction, said his communications director, Crystal Staley.: "Let's be clear: lives are on the line, and everyone must do their part to defeat the virus."

The governor argued that his order applied equally to public and private schools, but Van Tatenhove said the Sixth Circuit court has said regulation of religious activities must follow "the least restrictive way."

The appeals court said that in a case involving Beshear's early-in-the-pandemic order against mass gatherings and his use of state police to put notices on cars of attendees at Maryville Baptist Church in  Bullitt County saying, in effect, that "their attendance at the drive-in service amounted to a criminal act." Actually, the service was held inside the church.

"Ultimately, the Sixth Circuit opted to enjoin enforcement of the orders only as they pertained to drive-in services," Van Tatenhove noted. "While Maryville Baptist does not decide this case, it is indicative of what might come. Maryville Baptist Church was motivated by a sincerely held belief that Christians should have the ability to meet in person. Similarly, Danville Christian is motivated by a 'sincerely held religious belief that it is called by God to have in-person religious and academic instruction for its students'," as the school argued.

Van Tatenhove also said the state hadn't explained why schools should be closed when other activities such as preschools are allowed to continue in-person activity. "If social distancing is good enough for offices, colleges, and universities within the commonwealth," he wrote, "it is good enough for religious private K-12 schools that benefit from constitutional protection." He also noted that Dr. Robert Redfield, director of the Centers for Disease Control and Prevention, said Nov. 19 that "for kids K-12, one of the safest places they can be, from our perspective, is to remain in school."

Attorney General Daniel Cameron, who joined the Danville school's lawsuit, said he was glad that the courts "have affirmed that the freedoms provided by our Constitution are stronger than the fears of the moment and cannot be case aside by the governor or any leader."

Staley said that this is the second case in which Van Tatenhove "has refused to acknowledge the U.S. Supreme Court decision that found an action like this is both legal and constitutional." Van Tatenhove wrote that Chief Justice John Roberts' controlling opinion in that 5-4 decision "is not dispositive in this case" because the factual and procedural circumstances are different. The Supreme Court merely declined to grant injunctive relief from a lower court's decision.

And since then, the Supreme Court has changed. Hours after Van Tatenhove ruled, the high court stayed orders by New York Gov. Andrew Cuomo that limited gatherings, including worship services, to 10 people. Roberts, voting with the court's three liberals, said there was no need to intervene because Cuomo had relaxed the restrictions. But the majority, unsigned opinion said, “Even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.” The New York Times notes, "The order was the first in which the court’s newest member, Justice Amy Coney Barrett, played a decisive role."