The U.S. District Court for the Eastern District of Kentucky granted a Temporary Restraining Order (treated as a preliminary injunction) on Wednesday, preventing Governor of Kentucky Andy Beshear from enforcing his recent executive order against religious private schools in the state.
Governor Beshear issued Executive Order 2020-969 on November 18, 2020, which required all private and public schools in the state of Kentucky to cease in-person instruction through the end of the year in response to the increase in COVID-19 cases in the state. After Governor Beshear signed the order, Danville Christian Academy and Attorney General Daniel Camero filed a complaint, arguing that the order violated the Free Exercise Clause of the First Amendment, and sought a temporary restraining order (TRO) to prevent the Governor from enforcing the order against religious K-12 schools.
U.S. District Judge George F. Van Tatenhove began the 22-page opinion with an analysis of the Governor’s defensive arguments. First, the court found the argument that the executive order was “neutral and of general applicability [and] need not be justified by a compelling interest” uncompelling. The court reached this conclusion by inferring from a recent Sixth Circuit case called Maryville Baptist Church, Inc. v. Beshear that, even though Executive Order 2020-969 applied to both public and private schools, preschools, colleges, and universities in the state remain open. Thus, the order’s prohibition on in-person instruction was not narrowly tailored as required by case law. While the court recognized the severe impact of COVID-19 on Kentucky residents, it was not persuaded by the Governor’s reliance on the pandemic as a justification for the order: “If social distancing is good enough for offices, colleges, and universities within [Kentucky], it is good enough for religious private K-12 schools that benefit from constitutional protection.”
After a discussion of Danville Christian’s likelihood of success on the merits, the court noted that the remaining requirements for a preliminary injunction also weighed in favor of the school. First, the harm to the school would be irreparable, while in-person instruction while following the Center for Disease Control (CDC) guidelines would not harm Governor Beshear. Lastly, “public interest favors the enjoinment of a constitutional violation.”
The court also reviewed Danville Christian and the Attorney Generals’ Establishment Clause and Religious Freedom Restoration Act claims. Because Executive Order 2020-969 would survive the Lemon test and there are no applicable exceptions to the Governor’s sovereign immunity neither claim was sufficient for a preliminary injunction. The court expanded the injunction against the order to all religious schools throughout the state of Kentucky.