Is going to school in person a religious right?

NICK EICHER, HOST: It’s Tuesday, the 8th of December, 2020.

You’re listening to World Radio and we are so glad you are! Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. First up on The World and Everything in It: religious liberty in the classroom.

Students in Kentucky have not been able to attend school in person since the week before Thanksgiving. Colleges and preschools remain open. But students from kindergarten through high school are stuck with virtual learning.

EICHER: In November, Danville Christian Academy went to federal court to challenge Governor Andy Basheer’s school shutdown order. The school argued that according to its religious belief, “its students should be educated with a Christian worldview in a communal in-person environment.”

The trial court sided with the school, meaning kids could return—but that didn’t last. A federal appeals court put that order on hold just after the Thanksgiving break.

REICHARD: Joining us now to talk about the legal arguments in the case is Steve West. He’s an attorney and writes about religious liberty issues for WORLD Digital. Good morning, Steve!

STEVE WEST, GUEST: Good morning, Mary! 

REICHARD: Well, the school, Danville Christian Academy, made a religious liberty argument to overturn Gov. Bashear’s order. Could you outline the basic legal argument? 

WEST: Sure, Mary. School attorneys argued that in-person instruction, all together in one place was essential to their Christian faith—basically, that worship and education are inseparable. So they say they can’t live out this belief in a virtual setting, much as some argue they can’t worship as God intended by watching a livestream at home. 

REICHARD: Sounds familiar. It reminds me of the lawsuit in Washington DC by Capitol Baptist Church. Didn’t they make a similar argument?

WEST: They sure did. That church didn’t livestream, as church leadership believed that the Bible required in-person worship. Just like in that case, here Danville Christian Academy agreed that the state had a compelling interest in health and safety of students, teachers, and parents, but it said the state failed to use the least restrictive means of meeting that interest—particularly when colleges and preschools were able to have in-person instruction. Judge Tatenhove agreed. He said, “If social distancing is good enough for offices, colleges, and universities … it is good enough for religious private K-12 schools that benefit from constitutional protection.”

REICHARD: Those are the elements of the highest standard of court review, called strict scrutiny. The government needs a compelling reason to infringe first amendment rights, and must do it in the least restrictive way possible. That’s the lower court analysis, in favor of the school.

But the appeals court didn’t agree. What did it say?

WEST: The appeals court deferred more to the governor. It cited a Supreme Court case from 1990 called Employment Division v. Smith. That case said that are generally applicable and neutral don’t require strict scrutiny. Those rules only need some rational basis to justify them. So for the appeals court, it was enough that the governor had some reasonable basis to issue his order. And he did—he wanted to reduce the spread of a serious virus. End of argument.

REICHARD: But the Supreme Court is reconsidering that doctrine in a case this term.

WEST: It is. In Fulton v. City of Philadelphia, a case argued before the Court last month, Catholic Social Services is asking that Smith decision be changed. There the city shut out an adoption agency because the agency abided by its religious beliefs to certify only married, heterosexual couples for foster care. The city argues it’s requirement to work with everyone is a neutral law that applies to everyone. Yet in practical terms, its negative affect falls on the religious. 

REICHARD:  That’s the same argument made by Kentucky to keep Danville Christian Academy locked down, right?  It applies to all schools and is therefore neutral in application?

WEST: Exactly. But here’s the thing: to win a First Amendment challenge like this, you need to show that religion is explicitly targeted. For example, in the Masterpiece Cakeshop case there was evidence the State of Colorado was openly hostile to baker Jack Phillips’ religious beliefs. That’s one reason the school in Kentucky asked the Supreme Court early last week to step in quickly and let the kids go back to school until the case can be heard. We’re still waiting on that ruling.

REICHARD: Well, these religious school battles are playing out across the country. Where else have schools challenged closure orders?

WEST: California, for one. Religious parents, teachers, and schools there have also challenged closure orders. They agreed to drop their lawsuit in late October after a federal judge said religious schools could reopen while following state guidelines. Yet we can be thankful that many states have allowed not only religious schools but public schools to have in-person instruction. It’s also a great opportunity to educate the secular public and governmental officials that religion is vital in the lives of many people. And that’s protected by the First Amendment.

REICHARD: Steve West is an attorney and writes about religious liberties for WORLD Digital. You can read his work at wng.org. Thanks for joining us today!

WEST: Always a pleasure, Mary.

(Photo/Danville Christian Academy, Facebook) Students enter Danville Christian Academy in Danville, Ky.

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