Judges: Samuel Alito
Filed: Dec. 17, 2020
Latest Update: Dec. 18, 2020
Cite as: 592 U. S. ____ (2020) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A96
_________________
DANVILLE CHRISTIAN ACADEMY, INC., ET AL v.
ANDY BESHEAR, GOVERNOR OF KENTUCKY
ON APPLICATION TO VACATE STAY
[December 17, 2020]
On November 18, the Governor of Kentucky issued a tem-
porary school-closing Order that effectively closes K–12
schools for in-person instruction until and through the up-
coming 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, 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 secu-
lar schools and religious schools, but the applicants argue
that the 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 (1990). Several amici support-
ing 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 re-
quires heightened scrutiny when the “application of a neu-
2 DANVILLE CHRISTIAN ACADEMY, INC. v. BESHEAR
ALITO, J., dissenting
tral, generally applicable law to religiously motivated ac-
tion” also implicates “the right of parents” “to direct the ed-
ucation of their children.” Id., at 881
(citing Pierce v. Soci-
ety of Sisters,
268 U.S. 510 (1925); Wisconsin v. Yoder,
406
U.S. 205 (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 appli-
cation 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.
JUSTICE ALITO, with whom JUSTICE GORSUCH joins, dis-
senting from the denial of application to vacate stay.
For the reasons explained in JUSTICE GORSUCH’s dissent,
post, at ___, I would vacate the Sixth Circuit’s stay of the
preliminary injunction issued by the District Court and re-
mand for further consideration in light of the proper legal
standards. While I do not agree with the Court’s denial of
the applicants’ request for emergency relief, no one should
misinterpret that denial as signifying approval of the Sixth
Circuit’s decision. As I understand this Court’s order, it is
based primarily on timing. At this point, just a few school
days remain before the beginning of many schools’ holiday
break, and the executive order in question will expire before
classes would normally begin next year. The Court is there-
fore reluctant to grant relief that, at this point, would have
little practical effect.
I understand that reluctance, but in my judgment, it is
unfair to deny relief on this ground since this timing is in
no way the applicants’ fault. They filed this action on No-
vember 20, 2020, just two days after the issuance of the
Governor’s executive order. And when, on November 29,
the Sixth Circuit granted a stay of the order that would
have allowed classes to resume, the applicants sought relief
Cite as: 592 U. S. ____ (2020) 3
ALITO, J., dissenting
in this Court just two days later, on December 1. It is hard
to see how they could have proceeded more expeditiously.
As things now stand, this action remains on the docket of
the District Court. If the Governor does not allow classes
to begin after the turn of the year, the applicants can file a
new request for a preliminary injunction, and if the lower
courts do not provide relief, the applicants may of course
return to this Court.
Cite as: 592 U. S. ____ (2020) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A96
_________________
DANVILLE CHRISTIAN ACADEMY, INC., ET AL v.
ANDY BESHEAR, GOVERNOR OF KENTUCKY
ON APPLICATION TO VACATE STAY
[December 17, 2020]
JUSTICE GORSUCH, with whom JUSTICE ALITO joins, dis-
senting from the denial of application to vacate stay.
Four weeks ago, the Governor of Kentucky issued two ex-
ecutive orders. One (the School EO) closed all elementary,
middle, and high schools—including religious ones—for in-
person learning, while leaving preschools, colleges, and uni-
versities untouched. The other (the Business EO) permit-
ted virtually all other in-person activities to continue with
only capacity restrictions. Movie theaters, indoor wedding
venues, bowling alleys, and gaming halls remained open for
business.
Religious schools challenged these decrees as a violation
of the First Amendment, and the district court agreed with
them. The court “wonder[ed] why” people “would be free to
attend a lecture, go to work, or attend a concert, but not
attend socially distanced chapel in school or pray together
in a classroom that is following strict safety procedures and
social distancing.” Danville Christian Academy, Inc. v.
Beshear, 2020 WL 6954650, *4 (ED Ky., Nov. 25, 2020). In
the end, the court held that the Governor’s EOs discrimi-
nated against the free exercise of religion and enjoined their
enforcement against religious schools, so long as those
schools followed all applicable sanitization and social dis-
tancing protocols.
The Sixth Circuit stayed the district court’s injunction.
Commonwealth of Kentucky, Atty. Gen. Daniel Cameron,
2 DANVILLE CHRISTIAN ACADEMY, INC. v. BESHEAR
GORSUCH, J., dissenting
ex rel. Danville Christian Academy, Inc. v. Beshear, ___
F. 3d ___, 2020 WL 7017858 (Nov. 29, 2020). It did so by
considering the School EO in isolation and ignoring the
many activities permitted under the Business EO. Looking
only to the School EO, the court explained, religious exer-
cises were subject to “neutral” and “generally applicable”
rules.
Id., at *3.
After all, the School EO treated religious
and secular schools the same. Accordingly, the circuit con-
cluded, the School EO triggered only rational-basis review
and easily passed muster under the terms of Employment
Div. Dept. of Human Resources of Ore. v. Smith,
494 U.S.
872 (1990).
Whatever the ultimate merits of this case, the Sixth Cir-
cuit’s decisional path was flawed in at least two respects.
First, the court had an obligation to address the plaintiffs’
argument that the two EOs, considered together, resulted
in unconstitutional discrimination against religion.
Whether discrimination is spread across two orders or em-
bodied in one makes no difference; the Constitution cannot
be evaded merely by multiplying the decrees. See Church
of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520, 539–
540 (1993). Second, under this Court’s precedents, even
neutral and generally applicable laws are subject to strict
scrutiny where (as here) a plaintiff presents a “hybrid”
claim—meaning a claim involving the violation of the right
to free exercise and another right, such as the right of par-
ents “to direct the education of their children.”
Smith, 494
U.S., at 881.
Perhaps the Sixth Circuit’s errors are understandable.
Smith’s rules about how to determine when laws are “neu-
tral” and “generally applicable” have long proved perplex-
ing. See, e.g., Laycock & Collis, Generally Applicable Law
and the Free Exercise of Religion,
95 Neb. L. Rev. 1, 5–6
(2016). It is far from clear, too, why the First Amendment’s
right to free exercise should be treated less favorably than
other rights, or ought to depend on the presence of another
Cite as: 592 U. S. ____ (2020) 3
GORSUCH, J., dissenting
right before strict scrutiny applies. See, e.g., Kennedy v.
Bremerton School Dist., 586 U. S. ___, ___ (2019) (ALITO, J.,
statement respecting denial of certiorari); McConnell, Free
Exercise Revisionism and the Smith Decision, 57 U. Chi.
L. Rev. 1109, 1121–1122 (1990).
Rather than vacate and remand in light of these prob-
lems, today’s majority denies relief. On the merits, the ma-
jority suggests the applicants may not have “squarely” ad-
vanced the second argument about “hybrid” rights. But
however that may be, no one doubts the applicants have al-
ways pressed the first argument—that the Governor’s two
EOs together discriminate against religion. The Sixth Cir-
cuit’s failure to engage that argument is alone sufficient
grounds for vacatur. The majority disputes none of this but
instead turns to an assessment of the equities. Whatever
the problems with the Sixth Circuit’s order, it says, we
should let this one go because this case is old news; winter
break is coming soon, and the Governor’s decrees will expire
in a few weeks, on January 4.
I would assess the equities differently. The EOs remain
in force, the dispute over them remains live, and the deci-
sion allowing them to stand is flawed. Nothing prevents us
from saying so; no one attempts to suggest this case is moot;
and the applicants are entitled to a fair assessment of their
rights under accurate legal rules. The plaintiffs proceeded
expeditiously in challenging the EOs; they have hardly sat
on their rights. Nor should a Governor be able to evade ju-
dicial review by issuing short-term edicts and then urging
us to overlook their problems only because one edict is
about to expire while the next has yet to arrive. Come Jan-
uary 4, a new school semester will be about to start, and the
Governor has expressly told us that he reserves the right to
issue more decrees like these if and when religious schools
try to resume holding classes. Rather than telling the par-
ties to renew their fight in a month, asking the Sixth Circuit
to resolve the case now, under accurate legal rules, would
4 DANVILLE CHRISTIAN ACADEMY, INC. v. BESHEAR
GORSUCH, J., dissenting
be better for everyone—from the parents who might have
to miss work and stay home should decrees like these be
upheld, to the state public health officials who might have
to plan for school if they are not.
Courts have a broader equity at stake here too. In their
struggle to respond to the current pandemic, executive offi-
cials have sometimes treated constitutional rights with sus-
picion. In Kentucky, state troopers seeking to enforce gu-
bernatorial orders even reprimanded and recorded the
license plate numbers of worshippers who attended an
Easter church service, some of whom were merely sitting in
their cars listening to the service over a loudspeaker.
Maryville Baptist Church, Inc. v. Beshear, 977 F.3d 561,
563–564 (CA6 2020) (per curiam). Recently, this Court
made clear it would no longer tolerate such departures from
the Constitution. See Roman Catholic Diocese of Brooklyn
v. Cuomo, 592 U. S. __, __–___ (2020) (per curiam) (slip op.,
at 3–6). We did so in a case where the challenged edict had
arguably expired, explaining that our action remained ap-
propriate given the Governor’s claim that he could revive
his unconstitutional decree anytime.
Id., at ___ (slip op., at
6). That was the proper course there, as I believe it is here.
I would not leave in place yet another potentially unconsti-
tutional decree, even for the next few weeks.
For these reasons, I respectfully dissent. I would grant
the application, vacate the Sixth Circuit’s stay, and remand
the matter for further consideration under the proper legal
standards.
