The US Supreme Court Thursday denied a request to allow in-person classes to continue in the face of an order by Kentucky’s governor shuttering schools because of a surge in Covid-19 cases.

Kentucky Democratic governor Andy Beshear issued two executive orders on November 18, the first requiring limitations on persons in restaurants, bars, gyms, and other businesses, and the second closing all public and private elementary, middle, and high schools for in-person instruction. The cited reason for both orders was a “potentially catastrophic surge in COVID-19 cases, which threatens to overwhelm our healthcare system and cause thousands of preventable deaths.”

Danville Christian Academy, along with Kentucky attorney general Daniel Cameron, a Republican, filed suit in federal district court against the governor’s order, claiming that the school’s First Amendment rights under the free exercise clause were being violated by the governor’s shut-down order. The district court issued a preliminary injunction of the order with regard to private religious schools, but the Sixth Circuit reversed. Danville and Cameron requested that the Supreme Court restore the injunction, but in an unsigned decision the Court denied the request.

The four-paragraph decision noted that most Kentucky schools would be closing for holiday break on December 18, and that the governor’s order allows all schools to reopen as normal on January 4. Because of the timing, the governor’s order “effectively expires this week . . . and there is no indication that it will be renewed.” The Court did allow that, should the governor issue a new closing order next year, the parties could seek out a new injunction.

Justices Gorsuch and Alito dissented, the former arguing that the Court should have examined both of the governor’s orders together for discrimination against religion, noting that, “Whether discrimination is spread across two orders or embodied in one makes no difference.” He also cited the recent Roman Catholic Diocese of Brooklyn v. Cuomo as an example of the Court taking up a case that was arguably expired but where action was appropriate because the governor in that case could renew his decree at any time. Justice Alito joined Gorsuch’s dissent, and also added a brief dissent of his own, disagreeing with the majority’s decision to deny relief based on the timing alone, “since this timing is in no way the applicants’ fault.”