An order shuttering in-person education until Jan. 4 in Kentucky amid rising COVID-19 cases amounts to religious discrimination, the US Supreme Court has been told in amici curiae briefs.

Kentucky Gov. Andy Beshear (D) temporarily halted in-person learning in the state by executive order.

The order, which applies to both public and private schools, allows for elementary schools in "red" zones (counties with 25 or more new coronavirus cases a day) to reopen as long as they are following state public health guidance.

Danville Christian Academy sued over the order.

A federal district judge had ruled Nov. 25 that Beshear's order could not apply to private religious schools because it infringed on their First Amendment rights. On Nov. 29, a federal appeals court overturned that decision, upholding Beshear's original order.

Danville Christian Academy has asked the US Supreme Court to temporarily suspend the executive order, while its appeal is pending.

Several groups have submitted amici curiae briefs in the case in support of Danville Christian Academy.

Thirty-eight Republican Senators - including Senate Majority Leader Mitch McConnell and Sen. Rand Paul, both of Kentucky - filed one such brief Dec. 4.

"COVID-19 is undoubtedly a serious health threat, but the Constitution applies even in difficult times. This Court should again remind Governors across the Country that shutdown orders cannot trample Constitutional rights," the Senators stated in their amicus brief.

The state's attorney general and treasurer have also indicated their support for Danville Christian Academy.

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The Becket Fund for Religious Liberty submitted an amicus curiae brief, arguing not only "That movie theaters and horse tracks are open for business, but religious schools cannot open, is reason enough to vacate the Sixth Circuit's stay," but also that Beshear's executive order is subject to strict scrutiny because it interferes "with the right of parents under the Free Exercise Clause to direct 'the religious upbringing and education of their children'".

Alliance Defending Freedom's senior counsel, John Bursch, and other ADF attorneys filed an amicus curiae brief on behalf of 17 Christian schools in Kentucky.

"The Kentucky governor's order allows movie theaters, indoor event venues, gyms, childcare centers, and professional offices to operate, but private Christian schools cannot, even when they comply with all recommended public health and safety guidelines. That's why we are asking (the) high court to put a stop to the governor's unconstitutional edict," Bursch said Dec. 4.

"Government discriminatory treatment of religion must end. Now," the ADF brief in Danville Christian Academy v. Beshear states.

"In the nine months since the COVID-19 pandemic began, state executives have consistently imposed more severe burdens on religious conduct than comparable secular activities. They do so without any showing that religious activities present a greater COVID-19 risk than their secular comparators," ADF added.

"Instead, governments have consistently favored commerce over religion and-often with a judicial seal of approval-have cloaked their disparate treatment of religious worship and education in terms like 'emergency police powers' and 'substantial discretion.'"

Religious schools and churches have also submitted briefs in support of Danville Christian Academy, while a group of church-state scholars wrote one in defense of Beshear.

Beshear defended his order, citing health risks and the order's equal treatment of public and private schools. "Kentucky is in the midst of a deadly third wave of the coronavirus. We have taken the necessary actions to slow the growth in cases and save the lives of our fellow Kentuckians," Beshear said in a Dec. 4 statement, reported by the Courier Journal.

"In the most recent executive order regarding schools, every school is treated equally and each is asked to do its part over a limited period of time to slow the spread of the virus. The effectiveness of these actions requires everyone to take part, and anyone or any entity that tries to be the exception lessens the effectiveness of the steps," he added.

Bursch pointed to the U.S. Supreme Court's decision in late November, which ruled that New York Gov. Andrew Cuomo's restrictions on religious services during the coronavirus pandemic were a violation of the First Amendment's protection of free religious exercise.

"As the U.S. Supreme Court said in its recent order halting Gov. Andrew Cuomo's executive order in New York, 'even in a pandemic,' the First Amendment is not 'put away and forgotten," Bursch stated.

The federal appeals court which ruled to uphold Beshear's order said that the case was "distinguishable" from Cuomo's order, since the Kentucky order applied to both religious and public schools, the Courier Journal reported. 

The case also comes shortly after the four bishops of Kentucky announced in late November that they will continue holding in-person Masses, despite Beshear's order for all places of worship to halt in-person services until Dec. 13.

Schools throughout the United States have grappled with what to do about in-person learning after the coronavirus pandemic caused nationwide shutdowns last March. Though the country saw a dip in coronavirus cases over the summer, recent surges this fall, shortly after classes resumed, have caused some schools to close again, and some states to reinstate lockdowns or stay-at-home orders.

Catholic schools have worked to put extensive health and safety regulations in place, including mandatory masking and social distancing, and virtual options for families who choose to keep their children at home. Some Catholic school leaders and bishops have argued that children have a right to in-person learning, which can help to ensure the quality of their education and to prevent their social isolation.

Some Catholic schools, such as those in Baltimore, have seen spikes in enrollment this fall because they are offering in-person learning more consistently than area public schools.

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