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The Continuing Fight for Religious Liberty in the Age of COVID-19

September 21, 2020

By Jeremy Dys, Special Counsel for Litigation and Communications

When U.S. District Judge Gregory Tatenhove placed a temporary restraining order on Kentucky Gov. Andy Beshear’s unconstitutional attempt to halt in-person worship during the COVID-19 pandemic, he did so with the following moving language: “The Constitution will endure. It would be easy to put it on the shelf in times like this, to be pulled down and dusted off when more convenient. But that is not our tradition. Its enduring quality requires that it be respected even when it is hard.”

His decision in Tabernacle Baptist Church v. Beshear was a major win for religious liberty. But despite the clear victory in the Tabernacle case, religious liberty remains under threat in Kentucky and across the nation. Far too many governors and local elected officials continue to flex their power by restricting religious worship, including by preventing private, religious schools from opening.

But Kentucky Attorney General Daniel Cameron seems to respect the autonomy of these religious institutions. He recently issued a thorough opinion defending religious schools from state and local officials attempting to prevent them from reopening. Referencing Tatenhove’s opinion and other precedents, Cameron argued that the law governing religious liberty prohibits the government from closing religious schools that choose to offer in-person instruction this fall.

Part of the freedom to practice one’s faith is the freedom to be free from governmental interference in the internal governance of religious organizations, including schools.  That is no less true in the midst of a pandemic.

After all, as the Supreme Court recently affirmed in Our Lady of Guadalupe School v. Morrissey-Berru, faith-based schools exist primarily to communicate their faith to the young. For the government to interfere in how these schools carry out their central mission necessarily intrudes upon the First Amendment’s guarantee to the free exercise of religion.

Cameron’s opinion is timely. Across the country, overzealous government officials are continuing to restrict the First Amendment rights of religious organizations, sometimes even in opposition to public health recommendations. In Montgomery County, Maryland, local officials initially issued a directive prohibiting private, religious schools from conducting on-campus learning until at least Oct. 1. Within days, Governor Larry Hogan issued an emergency order removing the authority of local health agencies to shut down private, religious schools.

Texas Attorney General Ken Paxton sought to blunt attempts by local officials in his state to close private, religious schools by issuing clear guidance weeks before the start of school making it clear that local officials don’t have the authority to do so. That did not stop them from trying. Local officials in Cameron County, Texas ignored the Attorney General’s guidance, dismissing it as “nothing more than an opinion” and ordering the closure of the county’s religious schools until they declared they could open. First Liberty Institute stepped in to remind them of the law.

And, in California’s Santa Cruz County, local officials are preventing “in-person instruction” in schools despite allowing the schools to act as day camps and childcare centers. In fact, California allows small groups of children to gather for a variety of purposes, including for childcare, preschool, daycare, day camps, and recreation programs. Incredibly, for most of the state who live in counties on the COVID-19 monitoring list, children may still gather in these small groups as long as they aren’t learning.

All of us, including schools, should consider the advice of experts and their evidence-based health and safety guidance. We should all do what we can to promote a safe reopening. Nonetheless, a pandemic does not grant government officials the authority to ignore the Constitution and the freedoms it has guarded for 200-plus years.

As Attorney General Cameron said, “The law prohibits the state from mandating the closure of religiously affiliated schools that are complying with recommended health guidelines. Our courts have consistently held, throughout this pandemic, that religious entities are protected by our Constitution.”

Let’s hope the Governor and local officials in Kentucky — and across the nation — heed those words.

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