UPDATE: Beshear responds to Supreme Court with filings

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UPDATE, POSTED 5 P.M. DEC. 4, 2020

FRANKFORT, Ky (WTVQ) – Gov. Andy Beshear and state attorneys met Friday’s 4 p.m. deadline to file legal arguments with the U.S. Supreme Court in state Attorney General Daniel Cameron’s appeal of a ruling in Danville Christian School’s lawsuit against the state.

Earlier Friday, 38 U.S. senators, led by Kentucky Republicans Mitch McConnell and Rand Paul, filed a brief encouraging the Supreme Court to review the case and rule in favor of Danville Christian.

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Last week, a federal court judge sided with Danville Christian, saying Beshear’s order stopping all schools from carrying out in-person classes until at least Dec. 7 violated the First Amendment of the Constitution protecting religious liberties.

Sunday, a three-member panel of the Sixth District Court of Appeals overturned the lower court judge, prompting Cameron’s request for the U.S. Supreme Court to review that decision.

In filing his response, Beshear said:

“Kentucky is in the midst of a deadly third wave of the coronavirus. We have taken the necessary actions to slow the growth in cases and save the lives of our fellow Kentuckians. In the most recent executive order regarding schools, every school is treated equally and each is asked to do its part over a limited period of time to slow the spread of the virus. The effectiveness of these actions requires everyone to take part, and anyone or any entity that tries to be the exception lessens the effectiveness of the steps.”

To read the brief, click here https://governor.ky.gov/attachments/20201204_Response-of-Governor-Andy-Beshear.pdf.

Some of the highlights include:

  • Page 22: Here, Plaintiffs do not allege that Governor Beshear issued the Executive Order on the basis of hostility toward religion. See App. 6 at 5 (noting that the Executive Order “cannot be plausibly read to contain even a hint of hostility towards religion”). Nor do Plaintiffs allege that Governor Beshear targeted this Executive Order at any religious belief or practice. See id. And, critically, the Executive Order is neutral on its face: it does not engage in any classification on the basis of religion. See id. (“The contours of the order at issue here in no way correlate to religion . . . .”).
  • Page 16: In issuing public health regulations, Governor Beshear is deeply committing to principles of religious free exercise. Indeed, religious worship and freedom are central to the Governor’s own life: he and his wife serve as deacons in their church and help to serve communion there; and his son’s baptism was postponed because of the pandemic.30 See Statement of Governor Beshear (May 9, 2020) (“First, my faith is critically important to me. It’s a big part of my family life.”). Accordingly, Governor Beshear has endeavored to ensure that his pandemic orders reflect his own personal respect for the First Amendment, as well as his obligation as a public official to uphold the Constitution’s fundamental promise of free exercise.
  • Page 18: There are thus no public health regulations in Kentucky that facially classify on the basis of religion, or that direct themselves to the regulation of houses of worship in the Commonwealth. This includes the executive orders issued on November 18, 2020: EO 2020-969 is neutral with respect to religion, and EO 2020-968 expressly exempts religious activity. That is no coincidence. It reflects Governor Beshear’s dedication to protecting religious freedom. Through a deliberate, iterative process—involving scientists, public officials, religious leaders, and other affected communities—he has sought to ensure that religion and religious practice are fully respected throughout Kentucky.
  • Page 12: Governor Beshear’s second executive order responding to the third wave—EO 2020-969 (“the Executive Order”)—addresses in-person instruction for K-12 education. Governor Beshear did not lightly issue this order. Before it, he had not issued any orders requiring schools to cease in-person instruction. Instead, from the outset of the pandemic, he has worked closely with (and often deferred to) local officials, school superintendents and principals, and school boards. Based on those conversations, as well as advice from scientists and public health experts, he has favored recommendations rather than requirements.
  • Page 15: He therefore issued the Executive Order (2020 EO-969) on November 18, 2020, requiring all K-12 schools—public and private—to cease in-person instruction and transition to remote or virtual instruction by November 23, 2020.
  • Page 4: This third wave has proven to be deadly in Kentucky. With each passing day, the numbers of COVID-19 cases, hospitalizations, and deaths have risen at alarming rates. As of December 3, 2020, Kentucky recorded 190,601 cases, 2,014 deaths, 1,810 people hospitalized, 415 patients in in intensive care, and 240 patients fighting for their lives on ventilators. On December 3, 2020, Kentucky surpassed a positivity rate of 10%. These developments have placed a massive strain on Kentucky’s hospital resources, endangering not only COVID-19 patients, but all sick persons within the State.
  • Pages 14-15: In-person, K-12 education presents an especially acute problem for Kentucky because, unlike other settings (including those identified by Plaintiffs as supposedly comparable, see infra at 31-39), it presents a perfect storm of factors that combine to generate a singular public health risk. We unpack and describe those risk factors—and Dr. Stack’s unrebutted expert testimony—in greater detail below. See infra at 27-30. To briefly summarize: (1) The K-12 school day involves spending much more time in an indoors group setting, day in and day out, than nearly any other activity; (2) School-age children struggle to keep their masks on, and to respect other preventive measures, through an entire school day; (3) Masks cannot be worn when consuming food and beverages in group settings, which children must do every day in school; (4) More than one-off events or social outings, K-12 schools are high-volume mixers of people—not just students, but teachers, administrators, janitorial staff, cafeteria staff, and parents coming and going; (5) In Kentucky, as compared to other states, an unusually high percentage of K-12 school-age children are cared for by their grandparents or other older individuals at much higher risk of severe illness or death from COVID-19; and (6) With Thanksgiving on one end of the Executive Order and Christmas, Hanukah, and New Year’s Eve on the other end, the next four weeks are a critically dangerous time period in which to send children for in-person schooling. In addition, as the CDC has explained, symptom-based COVID-19 screening is “particularly challenging” in school-age children, which exacerbates the risks associated with in-person schooling.

The case has taken on political overtones as Cameron’s campaign has sent out messages seeking donations.

“Now, Daniel is once again coming under attack,” his campaign said in an e-mail. “Show where you stand. Support Daniel and Our team at this critical time.

“Please rush an emergency contribution today. Daniel’s counting on his top supporters,” the e-mail continued with links to make contributions.

UPDATE, POSTED 5 P.M. MONDAY, NOV. 30, 2020
FRANKFORT, Ky. (WTVQ) – As expected, Kentucky Attorney General Daniel Cameron filed an emergency application with the nation’s highest court in the case of Danville Christian Academy v. Beshear.
In his application, Cameron asks the Court to allow to take effect a ruling by a district court judge stopping the enforcement of Governor Beshear’s order banning in-person instruction at Kentucky’s religious schools.

The Attorney General’s lawsuit argues that a religious education is a core part of the freedoms protected by the First Amendment, and the Governor’s order shuttering religious schools is unconstitutional. Last week, a federal district judge agreed with the Attorney General’s position and issued a statewide preliminary injunction against the Governors order. The Governor appealed to the Sixth Circuit Court of Appeals, and a three-judge panel issued a stay of the order early Sunday morning.

More than 1,500 Kentucky parents and 20 religious schools joined the Attorney General in filing an amicus brief before the Court of Appeals in the case.

In the application filed before the U.S. Supreme Court, the Attorney General notes that in deciding that the Governor’s order is neutral and generally applicable, the Court of Appeals narrowly compared religious schools only to secular schools, and ignored Executive Order 2020-968 and the various guidance documents issued by the Governor that permit the operation of everything in Kentucky except K-12 schools and indoor consumption at bars and restaurants.

Last week, the U.S. Supreme Court ruled in Roman Catholic Diocese of Brooklyn v. Cuomo that governors cannot impose more stringent restrictions on religious institutions than they do on secular gatherings. Attorney General Cameron asks the Supreme Court to apply the same analysis to Kentucky’s religious schools and prevent the Governor from treating religious schools more harshly than secular activities, such as concert venues and movie theaters, which are allowed to continue operating.

ORIGINAL STORY

LOUISVILLE, Ky. (AP) — A federal appeals panel has upheld Kentucky Gov. Andy Beshear’s order to stop in-person classes at religious schools during the coronavirus pandemic.

A three-member panel of the Sixth Circuit U.S. Court of Appeals in Cincinnati on Sunday issued a stay of a federal judge’s order from last week.

U.S. District Judge Gregory F. Van Tatenhove ruled Wednesday that the Democratic governor’s order cannot apply to religious schools as 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.’”

But the appellate court said Sunday that it is likely to rule that Beshear’s order was “neutral and of general applicability” in that all schools were affected.

Under Beshear’s new restrictions, middle and high schools are required to continue with remote learning until January. Elementary schools may reopen Dec. 7 if the county they are located in is not in a “red zone,” the highest category for COVID-19 incidence rates.

“While we all want to get our kids back to in-person instruction, the United States Court of Appeals for the Sixth Circuit recognized that doing so now would endanger the health and lives of Kentucky children, educators and families,” Beshear said Sunday on Twitter.

Kentucky Attorney General Daniel Cameron, a Republican, had supported the religious schools in their bid to stay open to in-person learning.

“We’re disappointed with the Sixth Circuit’s ruling allowing the Governor to close religious schools, but we’re already hard at work to take this matter to the United States Supreme Court,” Cameron said Sunday on Twitter.

The state Supreme Court upheld the governor’s authority to issue coronavirus-related mandates in an unanimous ruling on Nov. 12.

Coronavirus cases continue to surge throughout Kentucky. The state reported more than 2,400 new confirmed cases and 14 virus-related deaths Saturday.

Almost all of Kentucky’s 120 counties are reported to be in the red zone — the most serious category for COVID-19 incidence rates. People in those counties are asked to follow stricter recommended guidelines to contain the virus.

For most people, the coronavirus causes mild or moderate symptoms that clear up within weeks. But for others, especially older adults and people with existing health problems, the virus can cause severe symptoms and be fatal. The vast majority of people recover.

House Speaker David Osborne who has bee critical of Beshear’s orders for moths expressed disappointmet. Osborne ad other Republican lawmakers wats the Legislature to get together ad debate what steps should be take.

“Today’s ruling is a setback for those who believe that the Kentucky and United States Constitutions exist to protect the inalienable rights of people from government overreach. As the plaintiffs decide what the next step will be, we continue to urge the Governor to follow the appropriate process to accomplish the shared goal of helping Kentuckians remain healthy. We ask that he involve stakeholders in making well-informed decisions and disclose what, if any, data was used to support them,” Osborne said.

“Millions of federal dollars have been spent to trace the spread of the virus. Yet, the Governor has either chosen not to share the data gathered from contact tracing or he has no information to share. Legislators have been asking for such data for more than a month in order to prepare for the 2021 Session. To date, we have no evidence they have tested the efficacy of any step taken and 9 days into the latest shutdown order, positive testing numbers are still growing dramatically,” he concluded.