Short thanksgiving for Kentucky Christian schools

Children at Kentucky’s Christian schools won’t be returning to class after all. A federal district court on Wednesday blocked Democratic Gov. Andy Beshear’s order closing the schools. But a federal appeals court stayed the ruling on Sunday, leaving the shutdown in place, for now.

Danville Christian Academy on Nov. 20 filed a lawsuit—with the support of Kentucky Attorney General Daniel Cameron, a Republican—asking the court to stop the governor from enforcing an executive order prohibiting in-person instruction at public and private schools. The K-12 school of 200 students said it worked with local health officials and consultants on its reopening plan. It only brought students back after approval by the director of the Boyle County Health Department.

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 school agreed to follow social-distancing and hygiene guidelines but said education was inseparable from worship or other aspects of religious exercise.

U.S. District Judge Gregory F. Van Tatenhove agreed, noting the state’s preschools, colleges, and universities remained open: “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.”

In Monday’s The Briefing podcast, Albert Mohler, president of The Southern Baptist Theological Seminary and a WORLD board member, singled out a lesson from the ruling. “Religious liberty is not confined to the walls or action of a religious congregation itself,” he said. “We don’t lose our religious liberty when we walk out of the four walls of our church, synagogue, or mosque.”

But that lesson seemed lost on the federal appeals court panel. Four days later, it stayed Tatenhove’s ruling, pending appeal. Citing the Supreme Court’s widely criticized 1990 decision in Employment Division v. Smith, it highlighted that the order applied to all schools, not just religious ones. “We are not in a position to second-guess the governor’s determination regarding the health and safety of the commonwealth at this point in time,” the judges wrote in their order.

The Smith decision allowed laws that incidentally burden religious liberty as long as they are neutral and apply to everyone. The Supreme Court is reconsidering that decision this term in Fulton v. City of Philadelphia.

Religious parents, teachers, and schools in California have similarly 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.

First Liberty Institute counsel Roger Byron, who represents Danville Christian Academy, said the appeals court panel did not follow recent Supreme Court precedent. On Wednesday, the high court blocked New York restrictions on places of worship. “Their order doesn’t explain how it’s consistent with the First Amendment to allow the same group of people to gather for weddings, funerals, and concerts and go to the movies together—even gamble together—but [not] gather for a religious class,” he said.

Attorneys for the school, along with the Kentucky attorney general, late Monday filed an emergency application asking the Supreme Court to set aside the stay and allow students to return to school. Justice Brett Kavanaugh can deny the petition or ask for the state to respond and refer it to the full court for a ruling.