Amy Coney Barrett Gets Another Chance to Reshape COVID Rules in Kentucky Religious Schools Case

Justice Amy Coney Barrett will have a second chance to reshape COVID rules as the Kentucky attorney general asks the U.S. Supreme Court to stymie state coronavirus restrictions on in-person classes at religious schools.

Last week, Barrett played a decisive role in the Supreme Court's ruling to bar New York from enforcing certain coronavirus restrictions on religious services.

She will now get the chance to rule on Kentucky Attorney General Daniel Cameron's case against Democrat Gov. Andy Beshear's executive order to close classrooms in religious schools during the pandemic.

Beshear's order closed all schools regardless of any religious affiliations from mid-November to the end of the semester. This is with the exception of elementary schools, which may reopen December 7 if they are not in a "red zone" - counties with 25 or more COVID cases per 100,000 people.

Kentucky church
Worshippers attend Sunday morning service at the Cumberland United Methodist Church on August 25, 2019 in Cumberland, Kentucky. Scott Olson/Getty Images

U.S. District Judge Gregory Van Tatenhove on Wednesday sided with Cameron's lawsuit, issuing a temporary injunction allowing religious schools to let children into its classrooms.

But on Sunday a three-judge Circuit Court panel reversed this decision, reportedly saying that classrooms and children "pose unique problems for public health officials responding to the COVID-19 pandemic."

So Cameron said he has now filed an emergency application to the Supreme Court to essentially uphold the District Court's initial decision.

In a statement on Monday, he said: "The U.S. Supreme Court has already ruled that religious institutions cannot be treated different than secular activities, and we are asking the court to simply apply the same analysis to the Governor's disparate treatment of religious schools and other secular activities.

"We're committed to pursuing every available option to protect the constitutional rights of Kentuckians, and today's filing with the Supreme Court is the next step."

We filed an emergency application with the U.S. Supreme Court this evening to protect the First Amendment rights of Kentuckians and stop enforcement of the Governor’s order closing religious schools.

Read more: https://t.co/QST1PLxNzc pic.twitter.com/LqwaSBVUCF

— Attorney General Daniel Cameron (@kyoag) November 30, 2020

Why Barrett could play a decisive role

The Supreme Court voted 5 to 4 to temporarily blocked measures that would restrict large gatherings at places of worship in New York.

The court's newest member, Barrett, a conservative and devout Catholic, cast a deciding vote. Chief Justice John Roberts Jr. and the court's three liberal justices dissented.

The Roman Catholic Church and Orthodox Jewish synagogues in the Brooklyn and Queens borough of New York City had sued to challenge attendance limits at houses of worship in areas that were harder hit by the virus.

Both applications argued that houses of worship were being unfairly treated by New York Gov. Andrew Cuomo's executive order imposing new state restrictions last month. Attendance was capped at 10 and 25 people for red and orange zones, respectively.

However, the Supreme Court ruling won't have an immediate impact as the two groups are in areas now designated as yellow zones, where houses of worship can hold services at 50 percent of their maximum occupancy.

This Supreme Court decision was at odds with rulings about capacity limits at churches in California and Nevada earlier this year.

Amy Coney Barrett
U.S. Supreme Court Associate Justice Amy Coney Barrett is sworn in by Supreme Court Associate Justice Clarence Thomas at the White House October 26 in Washington, D.C. Tasos Katopodis/Getty

In those cases, decided when Barrett's predecessor, the liberal Justice Ruth Bader Ginsburg, was on the court, the justices voted 5-4 to leave in place restrictions the governor imposed on religious services.

Barrett was confirmed to the court last month after Ginsburg's death in September. Her ascent to the Supreme Court has tipped the scales towards a more conservative bench and this may have a decisive impact when the judges come to rule on the Kentucky case.

How the Kentucky dispute unfolded

Beshear cited a rising number of coronavirus cases in Kentucky as he issued the executive order on November 18, which included restrictions on gatherings at schools, restaurants, bars, gyms, offices, weddings, funerals and other indoor events until mid-December.

Days later Cameron filed a lawsuit with Danville Christian Academy, a religious school in Boyle County, arguing the crackdown violated First Amendment religious rights and Kentucky's Religious Freedom Restoration Act, according to the Courier Journal.

daniel cameron
Kentucky Attorney General Daniel Cameron announces a grand jury's decision to indict one of three Louisville Metro Police Department officers involved in the shooting death of Breonna Taylor on September 23, 2020. He has asked the Supreme Court to rule on a dispute over the state's closure of religious schools. Jon Cherry/Getty Images

The publication reported that a spokeswoman for Beshear responded to the lawsuit by highlighting how the Kentucky Supreme Court had the week before unanimously upheld the governor's authority to issue executive orders in an emergency.

After the Circuit Court sided against Cameron, Beshear wrote on Twitter that the court had recognized how "we must all do our part over the next several weeks to slow this virus."

He said: "While we all want to get our kids back to in-person instruction, the United States Court of Appeals for the Sixth Circuit recognized that doing so now would endanger the health and lives of Kentucky children, educators and families. To help save more lives and defeat this virus we need everyone to do their part."

Today, the Sixth Circuit recognized that we must all do our part over the next several weeks to slow this virus. Don’t try to find an exception, do your part to save lives. ^AB pic.twitter.com/0wZuHepU9P

— Governor Andy Beshear (@GovAndyBeshear) November 29, 2020

Meanwhile, Cameron announced his intention to take the matter to the Supreme Court during an interview on Fox News the next day.

The attorney general said: "We're ready to send our case to the Supreme Court. We'll be applying for review by the Supreme Court hopefully today."

Cameron told the broadcaster Beshear has infringed on First Amendment rights, adding that attending a religious school "is an act of worship within itself."

He said: "You have to have a delicate balance in terms of keeping people safe and respecting the constitutional rights of our citizens. What [Beshear] has done repeatedly is infringe upon the First Amendment free exercise of religion here in the Commonwealth of Kentucky."

Cameron then confirmed his filing with the Supreme Court in a statement saying he "asks the Court to allow to take effect a ruling by a district court judge stopping the enforcement of Governor Beshear's order banning in-person instruction at Kentucky's religious schools."

When you tell parents who send their kids to religious schools that they cannot go to school, it infringes upon their First Amendment rights.

I joined @foxandfriends this morning to talk about our lawsuit defending the religious freedom of Kentuckians: pic.twitter.com/uiA1KILU8D

— Attorney General Daniel Cameron (@kyoag) November 30, 2020

The attorney general said: "Kentuckians have a First Amendment right to exercise their faith through a religious education, and we maintain that the Governor is clearly infringing upon that right by closing religious schools.

"The U.S. Supreme Court has already ruled that religious institutions cannot be treated different than secular activities, and we are asking the court to simply apply the same analysis to the Governor's disparate treatment of religious schools and other secular activities.

"We're committed to pursuing every available option to protect the constitutional rights of Kentuckians, and today's filing with the Supreme Court is the next step."