An interesting battle is brewing in Kentucky between Attorney General Daniel Cameron and Governor Andy Beshear. Cameron has filed a lawsuit against Beshear’s recent religious school closure order to combat the pandemic. Beshear recently correctly quoted an important victory in the Kentucky Supreme Court – a unanimous decision in favor of his power to issue pandemic orders. However, Cameron is aiming for a higher standard of exams by focusing on religious schools that could change scores.
On November 12, 2020, the Kentucky Supreme Court ruled unanimously in favor of the governor’s power to issue pandemic orders. This case is frequently cited, including by Governor Beshear, to end this final challenge before it begins. However, there are differences between this decision and the new challenge.
In the Beshear v Agree case, the Kentucky Supreme Court focused on the threshold issue, “The governor’s authority in general in emergencies,” and whether Beshear could issue pandemic orders. However, the five island questions listed at the beginning of the opinion show that this is not a blank check on orders that Beshear may wish to place. Question 4 is the most relevant, noting that this was a challenge based on property rights claims under the rational baseline test and that the decision did not effectively rule out future constitutional challenges:
IV. Do the contested orders or regulations violate Sections 1 or 2 of the Kentucky Constitution because they constitute the exercise of “absolute and arbitrary power over the life, liberty and property” of Kentuckians?
Only part of a resolution that was no longer in force violated Section 2. Property rights are listed in the Kentucky Constitution and are deserved of great respect, but are not fundamental rights in the sense that all government influences are overly severe Control, especially in the area of public health. As with all branches of government, the governor is definitely subject to constitutional restrictions, even when acting against a declared emergency. In this case, however, the contested orders and regulations have not been found to be arbitrary, that is, have no rational basis, with the exception of part of an order relating to social distancing at entertainment venues, which originally were not an exception for families or individuals in which they were live the same household. Implementing ordinances in emergencies, especially when public health and safety are at risk, are entitled to significant recognition by the judiciary.
One of the “constitutional restrictions” mentioned by the court is freedom of religion.
As can be seen from the (correct) statement, the governors are “shown considerable respect by the judiciary”. So the benefit of the litigation remains with Beshear. However, the outcome could depend on Cameron (and litigant First Liberty) being able to enforce verification under the rigorous examination standard as it interferes with the free exercise of religion. The pitch for the highest examination standard is driven home by the amended complaint, which was accompanied by a quote from the School of Our Lady of Guadalupe against Morrissey-Berru, 140 S. Ct. 2049, 2064 (2020): “[E]Training young people in their faith, imparting their teachings, and training them to live their faith are tasks that are at the core of the mission of a private religious school. “
Even under the basic rational test, Cameron’s brief statements, both scientifically and legally, state that there is no basis for closing schools for young children. He cites various countries where schools have been left open and various large organizations from the CDC to the World Health Organization as stating that there is little risk of allowing such classes. For example, the CDC itself has repeatedly stated that these closings are not being carried out in accordance with its recommendations or findings. CDC Director Redfield recently stated:
“We should be making data-driven decisions when talking about what we should do for institutions or what we should do for commercial closures. As we mentioned earlier, CDC did not recommend school closings last spring, or their closings today. . . . K through 12 schools can learn face to face, and they can do it safely and responsibly. “
See “CDC Director Redfield Says Closing Schools Is Not Recommended, Covid Acquired” In Household “” (November 19, 2020), available at https://www.youtube.com/watch?v=sxKhJaqEkcY (most recently visited in November). 20, 2020). The complaint therefore argues that the governor does not “follow science” when young children attend school in person.
If the court chooses the rigorous examination standard, Beshear could face a serious challenge when it comes to dealing with the counterbalancing science about the risk of young children going to school, but also the harm done to children out of school keep away. Cameron notes that the American Academy of Pediatrics has warned that “[t]The importance of personal learning is well documented, and there is already evidence of negative effects on children from school closings in Spring 2020. “
Therefore, the earlier Kentucky Supreme Court decision is not optional and much of the outcome could affect the standard of review.