Judge rules Beshear cannot halt in-person classes at religious schools due to COVID-19

Kentucky Gov. Andy Beshear cannot close religious schools to help curb the coronavirus pandemic, a federal judge ruled Wednesday night.

U.S. District Judge Gregory Van Tatenhove said in a 22-page order that he was granting a preliminary injunction to 17 private Christian schools that had filed a lawsuit against Beshear’s emergency restriction. He said his order would apply statewide.

He said the schools were “likely to succeed on the merits of the case.”

Kentucky Attorney General Daniel Cameron joined the plaintiffs in the suit against Beshear and Kentucky Treasurer Allison Ball filed an amicus brief supporting the suit.

Beshear spokeswoman Crystal Staley said in an email the governor has appealed the decision to the U.S. 6th Circuit Court of Appeals.

“We are disappointed but not surprised that Judge Van Tatenhove, for the second time, has refused to acknowledge the U.S. Supreme Court decision that found an action like this is both legal and constitutional,” said Staley.

“We have already appealed to the Sixth Circuit and will request an emergency stay of the judge’s order, and, if necessary, will appeal to the U.S. Supreme Court. Let’s be clear: lives are on the line and everyone must do their part to defeat the virus.”

Tatenhove, in a ruling in the summer, said Beshear did not have the authority to stop in-person services at houses of worship. Later, the U.S. Supreme Court rejected a request from a church in California to block enforcement of state restrictions on attendance at religious services. But the nation’s highest court decided Wednesday night in a 5-4 ruling that New York Gov. Andrew Cuomo could not limit the number of people attending religious service

The Kentucky Supreme Court earlier this month unanimously upheld the governor’s emergency orders.

Beshear has maintained that the restrictions are necessary to curb the deadly virus. He reported Wednesday that Kentucky had 3,408 new COVID-19 cases and 26 new deaths.

Cameron, in commenting on Wednesday’s ruling, said he is “incredibly thankful for the timeless and enduring protections enshrined in the Constitution.”

“This is not the first time during this pandemic where religious exercise has been threatened, first with the prohibition on drive-in church services, then in-person worship services and now in-person instruction at religious schools.

“In each of these instances, the court have affirmed that the freedoms provided by our Constitution are stronger than the fears of the moment and cannot be case aside by the Governor or any leader. Our country was built on the idea of religious freedom and will always be a place of refuge for those of faith.

“This pandemic reminds us now, more than ever, of the importance of faith and the reassurance and stability it provides for many in the midst of challenging times.”

Cameron noted that in August that he issued an opinion that said Beshear, the Cabinet for Health and Family Services, and other state or local officials could not order the closure of religiously affiliated schools that are in compliance with reasonable health guidelines to slow the spread of COVID-19.

“Governor Beshear disregarded the guidance in issuing his recent orders,” said Cameron.

Beshear signed an order Nov. 18 to limit indoor gatherings and stop in-person classes for all schools from Nov. 20 through Dec. 13.

“The Governor has every right to impose some restrictions on all schools, religious and secular alike,” said Van Tatenhove. “Social distancing, face masks, limits on class size, reporting requirements and other protocols may cost money and may be inconvenient for parents and students, but we give executives increased discretion in time of crisis.

“But in an effort to do the right thing to fight the virus, the Governor cannot do the wrong thing by infringing protected values.”

Senate President Robert Stivers, R-Manchester, and House Speaker David Osborne, R-Prospect, applauded the ruling against the Democratic governor.

“We understand that safety precautions need to be taken during this pandemic, but our frustration with the Governor’s orders arise when his language is vague, conflicting on its face and is inconsistently applied,” said Stivers.

“Today’s ruling in federal court confirms our belief that as Americans we possess rights so sacred they must be preserved regardless of the circumstances,” said Osborne.

He said the judge’s ruling “sends a strong message that following the appropriate process is critical and drives home the need for input and collaboration from not only other elected officials but also the very people impacted by executive orders and guidelines.”

First Liberty Institute, a non-profit public interest law firm in Texas and the largest legal organization in the nation dedicated exclusively to defending religious freedom, helped represent Danville Christian Academy in the lawsuit.

The school said Beshear’s order violates its First Amendment rights to free exercise of religion.

Chris Freund, director of media relations for First Liberty Institute, said Danville Christian Academy plans to open Monday. He said he was not sure about the other schools.

B. Scott Wells, superintendent of Lexington Christian Academy, said the school “appreciates today’s ruling and the ability for Christian schools throughout the Commonwealth to be empowered to make determinations as to their ability to hold in-person instruction.” The school is to make an announcement soon about Monday classes.

“The court recognized that Governor Beshear’s order prohibiting religious schools from holding in-person classes goes beyond his authority and violates the First Amendment,” said Roger Byron, senior counsel at First Liberty, in a statement.

“We are grateful the court restored the rule of law. The CDC (Centers for Disease Control and Prevention) has made it clear that students are safest when they are at school, and Danville Christian Academy has implemented extensive safety protocols approved by local health officials.”

Byron noted that the judge’s order states, “If social distancing is good enough for offices, colleges, and universities within the Commonwealth, it is good enough for religious private K-12 schools that benefit from constitutional protection.”

He said the First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’”

The judge’s order said there is “ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular setting, or in K-12 schools as opposed to preschools, universities or colleges is lacking.”

He said neither Beshear nor state health commissioner Steven Stack have “adequately explained why K-12 schools must close” while preschools, universities and colleges remain open as long as certain precautions are taken.

Beshear’s order also seems to run counter to CDC recommendations, said the order.

The judge noted that CDC director Robert Redford said Nov. 19 that school is one of the safest places for children.

Van Tatenhove ended his order by saying Thursday is Thanksgiving.

“It comes when we are tired but hopeful,” he said. “The precedent for America’s national day of Thanksgiving is found in the words of Secretary of State William H. Seward as proclaimed by President Lincoln.

“That, too, was a time when the nation was tired but hopeful. And at that challenging moment in our history, ‘in the midst of a civil war of unequaled magnitude and severity ... the laws (were) respected ...

“And the court’s ruling today demands no less.”

This story was originally published November 25, 2020 at 8:01 PM.