Kyrgyzstan is now ground zero in the seemingly endless struggle to protect religious freedom from government encroachments during the COVID 19 pandemic.
Early this year, the First Liberty Institute in Tabernacle Baptist Church v. Beshear successfully challenged Governor Andy Beshear’s order banning personal worship throughout Kentucky. This time religious schools must be defended from the governor’s unconstitutional actions.
Most recently, Governor Beshear ordered that all “public and private elementary, middle and high schools,” including private religious schools, must stop personal worship by the end of the year. He did so while at the same time allowing other activities such as theaters, weddings, bowling alleys, gaming rooms and offices to continue to provide personal instruction with some restrictions. Preschools, universities and colleges are even allowed to provide personalized instruction. It is a serious matter for the government to prevent religious schools from teaching their faith.
By order of Governor Beshear, Kentuckians may attend a matinee at the movies, visit a distillery, exercise in the gym, bet in a gambling parlor or go shopping, but they are not free to send their students to a religious school. Kentucky parents with one 4-year-old and one 6-year-old child can send their younger child to preschool or daycare for eight or more hours each day, but the older child must stay at home. This means that a religious school with a preschool and an elementary school is open and closed at the same time without any governmental justification.
Our client, Danville Christian Academy, worked with several doctors and local health officials to implement protocols that ensure the health and safety of their community. As a result, we joined with Kentucky Attorney General Daniel Cameron in a lawsuit against the Governor’s order on behalf of the people of Kentucky.
On November 25, the district court agreed with us and issued an injunction preventing the governor from “enforcing the ban on personal instruction in relation to any private religious school in Kentucky that adheres to the applicable guidelines for social distancing and hygiene. In his insistence on closing religious schools, Governor Beshear filed an emergency appeal, and a panel of the U.S. Court of Appeals for the Sixth Circuit suspended the district court injunction that had protected the schools. We have now asked the U.S. Supreme Court to protect the religious schools from Governor Beshear’s injunction.
It is now up to the nine judges to protect religious freedom in Kentucky and send a clear message to the rest of the nation that our God-given rights are still protected even in a crisis and especially from such irrational and discriminatory government orders as the one in Kentucky. There is no exception to the constitution for pandemics. This is the time when our courts are needed – without them, the citizens of this country will have no protection.
Governor Beshear’s order to close the K-12 private religious schools is clearly unconstitutional. Just last week, the Supreme Court issued an injunction by New York Governor Andrew Cuomo that restricts personal worship in places of worship, making it unconstitutional.
Judge Brett Kavanaugh noted in his agreement that “judicial deference in an emergency or crisis does not mean that the court resigns in full, especially when important issues of religious discrimination, racial discrimination, freedom of speech or the like are raised.
Furthermore, Judge Neil Gorsuch clearly reminded elected officials across the country that the Constitution remains the highest authority in the country: “The government is not free to disregard the First Amendment in times of crisis. At the very least, this amendment prohibits government officials from treating religious practices worse than comparable secular activities, unless they pursue a compelling interest and use the least restrictive means available. But recently, during the COVID pandemic, some states seem to have ignored these long-established principles”.
Governor Beshear’s actions have placed Kentucky in the shameful category of these “certain states. Fortunately, Kentucky Attorney General Cameron is working diligently with us to defend our most cherished freedoms, for which our clients, all Kentuckians and freedom-loving Americans around the world should be grateful.
The First Amendment protects the basic rights of both parents and religious houses of worship to teach their children their religious beliefs and education. Government interference in these most basic rights is grave, and the government has a heavy burden of proof to justify itself. But as Judge Gorsuch noted: “In far too many places and for far too long our first freedom has fallen on deaf ears”.
Governor Beshear’s order fails the First Amendment test for government actions that encumber religious freedom. Irrational and discriminatory government orders do not override our most basic rights. Now the judges have another opportunity to make sure that our first freedom did not “take a vacation during this pandemic.
Kelly Shackelford is President, CEO and General Counsel of the First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Learn more at FirstLiberty.org
The views expressed in this article are those of the author.