Danville Christian Acad., Inc. v. Beshear

Danville Christian Acad., Inc. v. Beshear

Opinion

 [**504]   [*527]  Application to vacate stay presented to Justice Kavanaugh and by him referred to the Court denied. On November 18, the Governor of Kentucky issued a temporary school-closing Order that effectively closes K-12 schools for in-person instruction until and through the upcoming holiday break, which starts Friday, December 18, for many Kentucky schools. All schools in Kentucky may reopen after the holiday break, on January 4. A religious private school and the Attorney General of Kentucky sought a preliminary injunction against the school-closing Order as applied to religious schools. The District Court granted a preliminary injunction,  [**505]  but the Sixth Circuit then stayed that injunction pending appeal.

The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed. The Order applies equally to secular schools and religious schools, but the applicants argue that the  [*528]  Order treats schools (including religious schools) worse than restaurants, bars, and gyms, for example, which remain open. For the latter reason, the applicants argue that the Order is not neutral and generally applicable for purposes of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). Several [***2]  amici supporting the applicants argue in the alternative that even if the Order is neutral and generally applicable because it treats religious schools the same as secular schools, Smith still requires heightened scrutiny when the “application of a neutral, generally applicable law to religiously motivated action” also implicates “the right of parents” “to direct the education of their children.” Id., at 881, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (citing Pierce v. Society of Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Wisconsin v. Yoder, 406 U. S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972)). The applicants did not squarely raise that alternative Smith argument in the District Court, the Sixth Circuit, or this Court.

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

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