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In a bit of a surprise decision, the Supreme Court declined to even hear the case the Attorney General of Kentucky and a private, religious school submitted challenging the Kentucky Governor's COVID-19 restrictions. However, Justices Samuel Alito and Neil Gorsuch did dissent, stating they would have heard the case.
The premise of the case is this: On Nov. 18, Andy Beshear, the Governor of Kentucky, issued a temporary order closing all schools through the upcoming holiday break, which starts Dec. 18; he allowed that schools may reopen following the break. However, businesses may remain open during this entire time, as well as preschools and colleges. One private school, Danville Christian Academy, and the Attorney General, requested an injunction against Beshear's order.
In his dissent, Alito explained why the Court refused to hear the case, which seemed to be a matter of unfortunate logistics and timing, and why he still disagreed with that logic.
"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 therefore reluctant to grant relief that, at this point, would have little practical effect."
Gorsuch also dissented and said that despite the fact that the holiday break was imminent, "[T]he EOs remain in force, the dispute over them remains live, and the decision allowing them to stand is flawed."
As usual, Gorsuch voiced his vehement disagreement with state officials applying their authority too heavily, and using a global health crisis as an excuse. "In their struggle to respond to the current pandemic, executive officials have sometimes treated constitutional rights with suspicion."
Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston took the Supreme Court to task in a piece at Reason chiding them for punting an important case for the sake of others down the road and petty logistics.
"The Supreme Court did the exact opposite of what I hoped for. First, the Court refused to decide the case on the merits, because the Governor's order would expire less than 24 hours later (December 18). Second, the Court offered a tantalizing tease about how to review COVID-19 restrictions of religious schools. Justices Alito and Gorsuch dissented. They vigorously disagreed with the Court's approach to the first question. And Justice Gorsuch seemed to be offering some tea leaves about how the latter question ought to be answered."
This case and decision comes on the heels of several similar petitions the Supreme Court has received—some of which they've heard, some of which they've sent back to lower courts—on the topic of religious institutions, schools or houses of worship, which maintain their First Amendment rights have been violated during the COVID-19 pandemic.