Sunday, June 13, 2021

Wisconsin COVID Order Closing Schools Violated Free Exercise Rights

In James v. Heinrich, (WI Sup. Ct., June 11, 2021), the Wisconsin Supreme Court in a 4-3 decision, held that under Wisconsin statutes, the local health officer had no authority to issue a COVID-19 Order that closed schools.  In addition, the majority held that such orders are unconstitutional under the Wisconsin state constitution, saying in part:

[T]hose portions of the Order restricting or prohibiting in-person instruction are unconstitutional because they violate a citizen's right to the free exercise of religion guaranteed in Article I, Section 18 of the Wisconsin Constitution....

Under Heinrich's Order, all schools in Dane County——including these private religious institutions——were required to cease all in-person instruction for students in grades 3-12 and instead provide a virtual learning environment. Consequently, all in-person religious practices interwoven with religious education at these schools——ones deemed essential to the Petitioners' exercise of their faith——were suspended by government decree.

Justice Hagedorn filed a concurring opinion. Justice Dallet, joined by Justices Bradley and Karofsy, dissented, disagreeing with the majority's statutory interpretation and contending the majority did not need to reach the constitutional question.