Danville Christian Acad., Inc. v. Beshear

• Decision Date: 25 November 2020
• Docket Number: Civil No. 3:20-cv-00075-GFVT
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: DANVILLE CHRISTIAN ACADEMY, INC., et al., Plaintiffs, v. Andrew BESHEAR, in his official capacity as Governor of Kentucky, Defendant.

503 F.Supp.3d 516

DANVILLE CHRISTIAN ACADEMY, INC., et al., Plaintiffs,

v.Andrew BESHEAR, in his official capacity as Governor of Kentucky, Defendant.

Civil No. 3:20-cv-00075-GFVT

United States District Court, E.D. Kentucky, Central Division. Frankfort.

Signed November 25, 2020

David J. Hacker, Pro Hac Vice, Hiram S. Sasser, III, Pro Hac Vice, Justin E. Butterfield, Pro Hac Vice, Roger Byron, First Liberty Institute, Plano, TX, Joseph A. Bilby, Bilby Law PLLC, Frankfort, KY, for Plaintiff Danville Christian Academy, Inc.

Barry L. Dunn, Brett Robert Nolan, Carmine G. Iaccarino, Matthew F. Kuhn, S. Chad Meredith, Attorney General's Office, Frankfort, KY, for Plaintiff Attorney General Daniel Cameron.

Amy Denise Cubbage, Taylor Payne, Marc Griffin Farris, Steven Travis Mayo, Office of the Governor KY, Frankfort, KY, for Defendant.

OPINION & ORDER

Gregory F. Van Tatenhove, United States District Judge

Part of the genius of the American tradition is that right from the start we were clear about what mattered. We even made a list, the Bill of Rights. Think of it as a catalogue of values so dear that they deserved protection from future edicts or even majorities at a moment in time. Infringing these values is rare. They matter that much.

This case is about one of those values—the ability we each have to follow our religious convictions without interference from the government. Religious schools across the Commonwealth have been closed by the Governor to in-person teaching along with secular schools. This prevents the corporate nature of religious education which is insinuated with worship, prayer, and mentoring.

Many thoughtful people believe that the reason for the Governor's action is a good one—the Commonwealth, indeed the country and the world, is facing the worst pandemic in over one hundred years. That may be one reason to close schools. But is it a good enough reason to keep religious schools from fully achieving their mission?

The Governor has every right to impose some restrictions on all schools, religious and secular alike. Social distancing, face masks, limits on class size, reporting requirements, and other protocols may cost money and may be inconvenient for parents and students, but we give executives increased discretion in times of crisis. But in an effort to do the right thing to fight the virus, the Governor cannot do the wrong thing by infringing protected values. So, as explained in detail below, the movants are likely to succeed on the merits of this case. The request for a Preliminary Injunction will be GRANTED.

I

This is not the governor's first executive order imposing restrictions in an effort to slow the spread of Covid-19. And this is not the first legal challenge to those orders. See e.g., Maryville Baptist Church, Inc. , 957 F.3d 610 (6th Cir. 2020) ; Roberts v. Neace , 958 F.3d 409 (6th Cir. 2020) ; Cameron v. Beshear , 2020 WL 2573463 (E.D. Ky. May 21, 2020). On November 18, 2020, Governor Beshear issued Executive Order 2020-969 which, in part, (1) requires all public and private K-12 schools in the state to cease in-person instruction and transition to virtual learning starting on November 23, 2020; (2) requires all middle and high schools to remain virtual until at least January 4, 2021; and (3) allows some elementary schools to resume in-person instruction between December 7, 2020, and January 4, 2021, but only if the school is not located in a "Red Zone County" and follows all expectations and best practices. [Exec. Order 2020-969.]

Plaintiff Danville Christian Academy, Inc.¹ is a Christian private school located in Danville, Kentucky, that describes its mission as "to mold Christ-like scholars, leaders, and servants who will advance the Kingdom of God." [R. 3 at 4.] Danville Christian states that it has a sincerely held religious belief that "it is called by God to have in-person religious and academic instruction for its students." [R. 1 at 25.] Danville students must attend one of two socially distanced chapel services each week, which include "religious instruction and preaching, corporate prayer, musical worship, communal recognition, and encouragement of individual students." Id. at 19. Danville Christian also holds daily corporate prayer at the beginning of the school day, in addition to corporate prayer in each classroom and before lunch. Id.

On the afternoon of Friday, November 20, 2020, Danville Christian and the Kentucky Attorney General filed a complaint, alleging that Governor Beshear's executive order violated its constitutional rights.² Most prominently, Danville Christian believes that Executive Order 2020-969 violates its First Amendment rights to free exercise of religion and argues it is likely to succeed on the merits of its claims because the orders are not narrowly tailored to serve the public health interest.³

II

"A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it." Overstreet v. Lexington–Fayette Urban County Government , 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner , 228 F.3d 729, 739 (6th Cir. 2000) (cleaned up) ("[A] preliminary injunction involv[es] the exercise of a very far-reaching power ....")). To issue a preliminary injunction, the Court must consider: 1) whether the movant has shown a strong likelihood of success on the merits; 2) whether the movant will suffer irreparable harm if the injunction is not issued; 3) whether the issuance of the injunction would cause substantial harm to others; and 4) whether the public interest would be served by issuing the injunction. Overstreet , 305 F.3d at 573 (citations omitted).

The Court of Appeals clarified that, "[w]hen a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often will be the determinative factor." City of Pontiac Retired Employees Ass'n v. Schimmel , 751 F.3d 427, 430 (6th Cir. 2014) (quoting Obama for Am. v. Husted , 697 F.3d 423, 436 (6th Cir. 2012) ). However, even if the plaintiff is unable "to show a strong or substantial probability of ultimate success on the merits" an injunction can be issued when the plaintiff "at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an injunction is issued." In re Delorean Motor Co. , 755 F.2d 1223, 1229 (6th Cir. 1985). Thus, Danville Christian must show that the foregoing preliminary injunction factors are met, and that immediate, irreparable harm will result if the injunction is not issued.

A

The First Amendment, applied to the Commonwealth of Kentucky through the Fourteenth Amendment, see Cantwell v. Connecticut , 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), provides that "Congress shall make no law respecting an establishment of religion, or exercising the free exercise thereof," with few exceptions. U.S. Const. amend. 1. "When constitutional rights are threatened or impaired, irreparable injury is presumed." ACLU Fund of Mich. v. Livingston Cty. , 796 F.3d 636, 649 (6th Cir. 2015) (internal citations omitted). The Supreme Court has held "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). This is precisely what Danville Christian alleges: violation of its First Amendment rights, specifically its right to exercise its religion. [R. 1.] Precedent within the Sixth Circuit establishes that, "when a party seeks a preliminary injunction on the basis of a ... violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor." Jones v. Caruso , 569 F.3d 258, 265 (6th Cir. 2009).

Of course, "[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community." Crowley v. Christensen , 137 U.S. 86, 89, 11 S.Ct. 13, 34 L.Ed. 620 (1890). The question becomes, then, whether the prohibition on in-person teaching issued by Governor Beshear amounts to "reasonable conditions" on Kentuckians' constitutional right to free exercise of their sincerely-held religious beliefs. Context is important. The orders at issue do not simply restrict religious expression; they restrict religious expression in an attempt to protect the public health during a global pandemic. As always, the Court looks to precedent in these unprecedented times.

To begin, the parties do not facially dispute that Danville Christian has a sincerely held religious belief in conducting in-person instruction. Nevertheless, the Governor argues that the fact Danville Christian halted in-person teaching earlier during the pandemic, when faced with an infected member of its community, seriously undermines the irreparable harm requirement of a preliminary injunction. By implication, this raises a challenge to the school's sincerity. In response, Danville Christian argued that the halt in holding in-person instruction was a voluntary short-term act taken out of deference to the community, and now that more is known about the virus and other measures can be taken to allow classes to resume safely, it would violate Danville Christian's First Amendment rights to force the school to hold virtual instead of in-person classes.

Exercising a judgment call to close for a short period of time when far less was known about the virus cannot now effectively counter its conviction. Danville Christian has presented evidence of the significance of in-person instruction, including the holding of weekly chapel services and corporate prayer throughout the day. [R. 1 at 19.] The Court is also cognizant of the role of daily in-person mentorship of religious values that occur in religious...