Thursday, December 24, 2020

6th Circuit Refuses Injunction Pending Appeal Of Religious School Closure Order

 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.