Amicus Brief: Danville Christian Academy v. Beshear

December 4, 2020

Kentucky Governor Andy Beshear issued a COVID-19 executive order halting in-person instruction at every K-12 school in the state. Religious schools sued, and a district court enjoined the order as to religious schools only. After the Sixth Circuit stayed that injunction, the schools sought emergency relief from the Supreme Court. A group of church-state scholars including Katherine Franke filed an amicus brief in support of the Governor, with Morrison & Foerster as counsel.

Our brief argued that the order raised no Free Exercise problem at all. Under Employment Division v. Smith, Lukumi, and City of Boerne, the question is whether government action has the object of burdening religion, not whether it incidentally does so, and the Governor’s order treated every K-12 school alike, religious or secular. The applicants’ contrary position rested on the “most favored nation” theory of religious exemptions, under which any secular exception triggers strict scrutiny. That theory cannot be squared with Smith, has been rejected by lower courts, and would put federal judges in the position of micromanaging public health decisions in the middle of a pandemic.

The brief also argued that the remedy sought was itself unconstitutional. Exempting only religious schools from an order that applies to all schools systematically privileges religious interests over comparable nonreligious ones, and all Kentucky parents have a serious interest in in-person schooling. That is an establishment of religion. The Free Exercise Clause forbids discrimination against religion; the Establishment Clause forbids discrimination in favor of it.

For related argument from the same term, see our brief in Gateway City Church v. Newsom.