In Pleasant View Baptist Church v. Beshear, 2020 U.S. App. LEXIS 40077 (6th Cir., Dec. 21, 2020), the U.S. 6th Circuit Court of Appeals refused to issue a preliminary injunction pending appeal of a COVID Order by the Kentucky governor which, among other things, barred in-person instruction in religious schools until January 4. The court said that the Order was about to expire of its own terms. Judge Donald filed a concurring opinion which expressed concern with one of plaintiff's arguments:
Fundamental to Christian School Plaintiffs' argument in this emergency appeal is that under the Free Exercise Clause of the First Amendment, EO 2020-969 burdens their "hybrid rights." That is, the order burdens both their Free Exercise rights and other constitutional rights, a combination that, they contend, triggers an exception to Smith and subjects even neutral laws of general applicability to strict scrutiny....
We have had no reason to re-consider our view that Smith's discussion of "hybrid rights" was anything but dicta.
The Constitution is not a mixing bowl for rights that when considered in the aggregate are entitled to a higher level of scrutiny compared to when those exact same rights are viewed in isolation.
... I provide the foregoing analysis ... to highlight what I see as a troubling trend in the use of the Court's emergency docket....
I do not see an emergency appeal as the proper forum to advocate for abrupt and sweeping change to well-settled federal law.
