Nos. 20-6341 United States Court of Appeals For The Sixth Circuit

Case: 20-6341 Document: 16-1 Filed: 11/26/2020 Page: 1
Nos. 20-6341
UNITED STATES COURT OF APPEALS

for the SIXTH CIRCUIT
COMMONWEALTH OF KENTUCKY, Attorney General Daniel Cameron, ex rel.

DANVILLE CHRISTIAN ACADEMY, INC.,
Plaintiffs-Appellees
v.
ADNREW G. BESHEAR, in his official capacity as Governor of the

Commonwealth of KY
Defendants-Appellants
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY
No. 3:20-cv-00075
GOVERNOR ANDREW G. BESHEAR’S

EMERGENCY MOTION FOR A STAY OF PRELIMINARY
INJUNCTION PENDING APPEAL
Under Federal Rule of Appellate Procedure 8(a)(2), Defendant Governor
Andy Beshear, by and through counsel, moves this Court for an emergency stay of
the Preliminary Injunction entered by the District Court in this matter. Governor
Beshear respectfully moves this Court to stay the lower court’s Order enjoining
him from closing all schools to in-person instruction for approximately three weeks
1
due to the high risk of transmission of COVID-19. The lower court’s order not
only immediately impedes the Commonwealth’s ability to enact public health
measures to protect the public from the spread of COVID-19, but also eviscerates
free exercise jurisprudence to call into question any neutrally-applicable public
health measure a state would enact to protect children and staff of religiously-
affiliated schools.
A party may first move for a stay pending appeal where a motion before the
District Court would be “impracticable.” F.R.A.P. 8(a)(2)(A)(i). In this case, such
a motion would be impracticable because the District Court just entered its
erroneous ruling after full briefing and a hearing. Moreover, review before this
Court is urgent, because the District Court’s Order will cause imminent irreparable
harm to the people of Kentucky beginning Monday, November 30, 2020, by
facilitating the spread of a deadly disease.
Background
Kentucky is experiencing a deadly surge of COVID-19 cases that has led to
new daily record highs of cases over and over again. On November 25, Kentucky
reported 3,408 new cases, with 1,734 people currently hospitalized for COVID-19,
with 409 people in the intensive care unit and 216 people on a ventilator.1 This
1
KY COVID-19 Daily Summary 11/25/2020, Nov. 25, 2020, available at
https://chfs.ky.gov/agencies/dph/covid19/COVID19DailyReport.pdf Beshear
announces 2,690 new COVID-19 cases, makes last-ditch plea on Thanksgiving,
2
case concerns the urgent public health measures Governor Beshear has
implemented at the advice of public health officials, to prevent our healthcare
system from becoming overwhelmed from this surge.
I. COVID-19 Spreads Through In-Person Contact.
Most cases of COVID-19 are spread by people who have no symptoms at
all. (Declaration of Dr. Steven J. Stack (“Stack Decl.”), D.E. 24-1, Page ID#: 435,
¶ 7.) COVID-19 spreads primarily on tiny droplets transmitted through close
contact, which means being within 6 feet of an infected person for a cumulative
total of 15 minutes or more over a 24-hour period. (Id. at Page ID##: 434-35, ¶ 5.)
The CDC recently concluded, however, that COVID-19 sometimes spreads
through airborne transmission, when small droplets and particles linger in the air
for minutes to hours. (Id. at Page ID#: 435, ¶ 6.) This means the virus may be able
to infect people who are further than 6 feet away from the person who is infected
or after that person has left the space, particularly if the space is indoors and poorly
ventilated. (Id.)
As the disease has progressed, studies have shown that places where people
congregate near each other indoors for extended periods of time are the locations
most associated with spread of COVID-19, especially if people are not wearing
Nov. 24, 2020, available at https://chfs.ky.gov/agencies/dph/covid19/COVID19

DailyReport.pdf (last visited Nov. 25, 2020).
3
masks the entire time. (Id. at PageID##: 435-36, ¶ 8.)2 Studies have linked
catastrophic outbreaks to restaurants, weddings, funerals, and worship services.
(Id.) Importantly, these outbreaks do not just affect those who choose to attend
these settings. The outbreaks spread through the community, affecting those who
did not choose to assume any risk related to attendance at the events. (Id.) 3
Taken together, this evidence shows that certain interventions can reduce the
spread of disease. Social distancing eliminates close contacts, although airborne
transmission remains a threat. (Id. at PageID#: 436, ¶ 10.) Requiring facial
coverings ensures that fewer infectious particles are traveling through the air. (Id. ¶
9.) And ensuring that symptomatic people do not attend in-person events helps
reduce the risk of disease. However, asymptomatic and presymptomatic
individuals, who do not know they are infectious, spread most cases of COVID-19.
2
By contrast, transient encounters – where people are near each other for less than
15 minutes – appear less likely to cause the spread of disease, especially when
individuals are wearing facial coverings and maintaining distance from each other.
(Id. ¶ 9.) Retail locations and similar settings with transient encounters have not
been linked to significant spread. (Id.)
3
As Dr. Stack’s Declaration explains, a genetic study has traced 20,000 cases in
Boston to a single healthcare conference with only 175 attendees. And a single
wedding in rural Maine attended by 55 people ultimately led to infections of at
least 177 people, including at a long-term care facility 100 miles away and at a
correctional facility approximately 200 miles away, and ultimately caused at least
seven deaths. None of the seven people who died had attended the wedding
reception. (Stack Decl., D.E. 24-1, PageID##: 435-36, ¶ 8.)
4
(Id. ¶ 7.) Importantly, none of these steps can entirely prevent the spread of
disease.
II. Kentucky Responds To COVID-19 With Emergency Public Health

Measures.
Kentucky, like most other states, is currently in the midst of a potentially
catastrophic third wave of COVID-19. The first wave came in the Spring, when the
disease first reached the United States. (Id. at PageID#: 437, ¶ 14.) In response, the
Governor declared a State of Emergency on March 6, 2020, and Kentucky imposed
a number of public health measures, including closing non-life-sustaining
businesses and prohibiting mass gatherings. (Id.)4 The Governor also
recommended that all public and private schools cease providing in-person
instruction, and all public school districts and the vast majority of private schools
followed that recommendation, including Danville Christian Academy, which
ceased in-person instruction for two months. 5 The intervention helped flatten the
curve, but the disease continued to spread and Kentuckians continued to die from
it. (Id. ¶ 14.)
A second surge occurred this summer. Consistent with recommendations
from the CDC, the White House, and the Kentucky Department for Public Health
4
See generally Kentucky’s Response to COVID-19, available at
https://governor.ky.gov/covid19 (last visited Nov. 25, 2020).
5
See id.
5
(“DPH”), the Commonwealth instituted a facial coverings mandate and briefly
closed indoor service at restaurants and bars. (Id. at PageID##: 437-38, ¶ 15.) 6
Again, Kentuckians flattened the curve.
The reopening of schools this Fall posed a significant risk of increased cases.
(Id. at PageID#: 438, ¶ 16.) In response, DPH and the Kentucky Department of
Education promulgated rules and recommendations for schools to follow to ensure
safety, including mandating facial coverings and distancing.7 DPH promulgated a
regulation requiring all schools – public or private – to self-report positive cases or
quarantined individuals so that DPH and the public can track the spread in the
school setting. See 902 KAR 2:220E.8 DPH’s self-reporting portal reflects that
Danville Christian Academy has never reported a single case under this regulation
even though it admits in its Complaint there have been at least 5 infections among
students and faculty. 9
The White House has “commended” Governor Beshear for taking active
measures. 10 And, in rejecting a challenge to these measures brought by the
6
See id.
7
See id.
8
See Healthy at School: Guidance on Safety Expectations and Best Practices for
Kentucky Schools (K-12), available at https://govstatus.egov.com/ky-healthy-at-
school (last visited Nov. 22, 2020).
9
https://public.tableau.com/profile/chfs.dph#!/vizhome/COVID19SchoolSelfRepor
tngData/SchoolSelfReportCovid19DB (last visited Nov. 22, 2020).
10
White House Kentucky State Report, Nov. 15, 2022, available at
https://cdn.govstatus.site/381d0fbb43b611527
6
Attorney General, the Kentucky Supreme Court unanimously held that Governor
Beshear’s “orders were, and continue to be, necessary to slow the spread of
COVID-19 and protect the health and safety of all Kentucky citizens.” Beshear v.
Acree, --- S.W.3d ---, No. 2020-SC-0313-OA, 2020 WL 6736090, at *37 (Ky.
Nov. 12, 2020).
III. COVID-19 Is Surging Again Across Kentucky And America.
Kentucky is in the midst of the third wave of COVID-19. (Stack Decl., D.E.
24-1, PageID##: 438-39, ¶ 17.) Kentucky is setting new records for positive
COVID-19 cases on a nearly daily basis, reflecting exponential growth of the
disease. (Id.) This spread will eventually cause hundreds of additional preventable
deaths, as deaths generally lag diagnosis by about three weeks. (Id. at PageID#:
441, ¶ 23.) And the widespread disease threatens to overwhelm our healthcare
system by filling up essential hospital beds and sidelining critical healthcare
workers who catch the disease. (Id. at PageID##: 439-41, ¶¶ 18, 24.) Hospitals
have already begun curtailing procedures and closing operating rooms as
hospitalizations due to COVID-19 have gone up.11 Notably, the local hospital in
a8f1c329301ef51fd555fcf/Kentucky%20%2011.17.pdf (last visited Nov. 22,

2020).
11
Alex Acquisto, UK Hospital closing 5 operating rooms to free up resources for
COVID-19 patients, Lexington Herald-leader, available at
https://www.kentucky.com/news/coronavirus/article247400680.html (last visited
Nov. 25, 2020);UofL opening floor of hospital unused for 12 years in preparation
for expected surge, WLKY News, available at
7
Danville, the home of Appellee Danville Christian Academy, has struggled during
this third wave with a full COVID-19 ward, warning that it may not have enough
nurses to care for all patients.12 This third wave comes at a particularly dangerous
time, as we approach the Thanksgiving holiday. In Canada, which celebrated
Thanksgiving last month, the holiday kicked off exponential growth of the disease,
despite warnings ahead of time from public health officials. (Id. ¶¶ 19-22.)
The Governor and public health officials initially responded to this surge
with recommendations. The Governor implemented a Red Zone Reduction plan on
October 26, 2020. 13 Under this plan, DPH provided recommendations of steps for
Kentuckians to take if they live in “red zone” counties, meaning the county has a
daily average of more than 25 cases per 100,000 people over a seven-day period.14
Among the recommendations are that Kentuckians in these areas cease in-person
gatherings, and that schools provide remote instruction.15
https://www.wlky.com/article/expected-increase-in-patients-prompts-uofl-to-open-
floor-of-hospital-unused-for-12-years/34775594 (last visited Nov. 26, 2020).
12
COVID-19 Unit Full at Ephraim McDowell, 2 on Vents, WKYT News, October
16, 2020, available at https://www.wkyt.com/2020/10/16/covid-19-unit-full-at-
ephraim-mcdowell-in-danville-two-on-vents/ (last visited Nov. 25, 2020).
13
Gov. Beshear: Kentuckians, Communities Urged to Follow New Red Zone
Reduction Recommendations to Stop COVID Spread, Protect One Another, Oct.
26, 2020, available at https://kentucky.gov/Pages/Activity-
stream.aspx?n=GovernorBeshear&prId=433 (last visited Nov. 25, 2020).
14
Id.
15
Red Zone Recommendations, available at
https://governor.ky.gov/attachments/Red-Zone-Reduction-Recommendations.pdf
(last visited Nov. 25, 2020); COVID-19 Mode of Instruction Metrics for K-12
8
These recommendations did not stop the exponential growth of COVID-19.
On October 26, 2020, when the recommendations took effect, 55 counties were in
the “red zone” and Kentucky had 953 new cases. 16 By November 20, 2020, when
Governor Beshear’s additional mandatory health measures took effect, Kentucky
had 113 “red zone” counties and 3,825 new cases of COVID-19. 17 As of
November 25, 2020, the day the injunction issued, Kentucky had 117 “red zone”
counties, 3,408 new cases, 26 new deaths, and a total of 1,835 Kentuckians lost to
COVID-19.18 Dr. Stack attributes this spread to fatigue, noncompliance, and cooler
temperatures leading people to spend more time indoors. (Stack Decl., D.E. 24-1,
PageID##: 438-39, ¶ 17.) This widespread disease has overwhelmed contact
Education, Sept. 29, 2020, available at

https://chfs.ky.gov/agencies/dph/covid19/cv19ModeofInstructionMetricsforK-
12Education.pdf (last visited Nov. 25, 2020).
16
Beshear makes new recommendations for ‘red zones’ as COVID-19 surge
continues, Oct. 26, 2020, available at
https://www.kentucky.com/news/coronavirus/article246730976.html (last visited
Nov. 25, 2020).
17
Gov. Beshear: Another Frightening, Record Day for New COVID-19 Cases,
Nov. 20, 2020, available at https://kentucky.gov/Pages/Activity-
stream.aspx?n=GovernorBeshear&prId=477 (last visited Nov. 25, 2020); COVID-
19 Current Incidence Rate in Kentucky, Nov. 20, 2020, available at
https://chfs.ky.gov/agencies/dph/cv19maps/incidencemap1120.pdf (last visited
Nov. 25, 2020).
18
KY COVID-19 Daily Summary 11/25/2020, available at
https://chfs.ky.gov/agencies/dph/covid19/COVID19DailyReport.pdf (last visited
November 26, 2020).
9
tracers, who are now largely unable to identify and contact everyone who must
quarantine. (Id. at PageID# 437, ¶¶ 11-12.)
IV. Kentucky Implements New Public Health Measures To Combat The

Surge.
At the recommendation of public health officials, on November 18, 2020,
the Governor issued two executive orders to respond to this potentially catastrophic
surge. Executive Order 2020-968, which lasts until December 13, 2020, prohibited
social gatherings of more than eight people from more than two households; closed
indoor dining; limited capacity at theaters, venues, and similar establishments; cut
capacities and canceled group classes at gyms, fitness centers, and other
recreational facilities; and mandated that office-based businesses cease in-person
operations and provide telecommuting to the greatest extent possible.19
Executive Order 2020-969 requires all schools to cease in-person instruction
and transition to remote or virtual instruction beginning November 23, 2020.20
Elementary schools in non-red zone counties, where the risk of transmission in
school is lower, may return to in-person instruction beginning December 7, 2020. 21
19
Ky. Exec. Order 2020-968, Nov. 18, 2020, available at
https://governor.ky.gov/attachments/20201118_Executive-Order_2020-968_State-
of-Emergency.pdf (last visited Nov. 25, 2020).
20
Ky. Exec. Order 2020-969, Nov. 18, 2020, available at
https://governor.ky.gov/attachments/20201118_Executive-Order_2020-969_State-
of-Emergency.pdf (last visited Nov. 25, 2020).
21
Id.
10
Middle and high schools must remain in virtual instruction until 2021. The Order
contains an exception permitting schools to provide in-person “targeted services,”
which includes therapy, assistance to vulnerable populations, and remedial
instruction.22 This Order applies to public and private schools alike. 23
Schools are a particularly difficult problem for public health officials. (Stack
Decl., D.E. 24-1, PageID#: 443, ¶ 32.) Most importantly, compliance with facial
coverings and social distancing requirements is difficult to maintain, as Danville
Christian Academy’s social media confirms. 24 And even at schools that try harder
to comply with these rules, students must eat, removing their masks and creating a
risk of disease transmission – just as in restaurants. (Id. ¶ 32.) And while schools
are generally safer than some other settings, the CDC has observed that when
states meet certain criteria, the state is at increased risk of transmission in schools.
(Id. at PageID##: 442-43 ¶ 30 & PageID##:470-71, Ex. 3.) And Kentucky is firmly
within those criteria. (Id.)
Kentucky is unusually vulnerable to the problem of spread at schools.
Kentucky leads the nation in children living with relatives other than their parents
– including grandparents and great-grandparents, who are especially vulnerable to
22
Id.
23
Id.
24
See Photographs 1-4, Danville Christian Academy Facebook Page, D.E. 24-2,
PageID##: 500-03, and publicly available at
https://www.facebook.com/DCAWarriors/ (last visited Nov. 25, 2020).
11
the disease. (Id. at PageID#: 444, ¶ 35.) Kentuckians also have high rates of
comorbidities that can lead to severe cases of COVID-19, including heart and lung
conditions. (Id.) The public health measures imposed under Executive Orders
2020-968 and -969 are intended to prevent the unnecessary loss of life among these
vulnerable populations, and among all Kentuckians. (Id. ¶ 34.)
V. Proceedings In The District Court.
Plaintiffs filed this action on the evening of November 20, 2020. (D.E. 1,
PageID##: 1-67.) They allege a violation of the Free Exercise Clause of the First
Amendment to the United States Constitution, a violation of the First Amendment
right to religious autonomy, a violation of the Establishment Clause of the First
Amendment, violations of Sections 1 and 5 of the Kentucky Constitution, and a
violation of the Kentucky statutory Right to Religious Freedom Act. Plaintiffs also
moved for a temporary restraining order. (D.E. 3, PageID##: 71-104.) Governor
Beshear responded to the motion on November 23, 2020. (D.E. 24, PageID#: 402-
31.) That day, the District Court heard oral argument from the parties. (D.E. 29.)
On November 25, 2020, at 7:09 p.m. on the eve of the Thanksgiving
holiday, the District Court issued its Opinion and Order enjoining Executive Order
2020-969 – but only as applied to religious schools. (D.E. 35, Page ID##: 714-35)
(attached as Exhibit A). Governor Beshear filed this appeal the same night,
because the District Court’s Order granting religious schools a special exemption
12
from a generally applicable public health measure is contrary to law, favors
religion over non-religion, and endangers the health and safety of all Kentuckians,
not just those who choose to attend the sectarian schools subject to the order.
STANDARD OF REVIEW
Under Federal Rule of Appellate Procedure 8(a), this Court may enter an
order suspending, modifying, restoring, or granting an injunction while an appeal
is pending. The Court must balance four factors in deciding whether to grant a
stay: (1) whether the movant “has made a strong showing that he is likely to
succeed on the merits”; (2) whether the movant “will be irreparably injured absent
a stay”; (3) whether issuance of a stay will “substantially injure” other interested
parties; and (4) “where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434
(2009) (citation omitted). The first two factors “are the most critical.” Id.
ARGUMENT
Governor Beshear’s Motion clearly merits a stay. 25 The District Court’s
decision ignores binding precedent because it grants special privileges to a
religious group and impermissibly favors religion over non-religion by relieving it
of the obligation to comply with neutral, generally applicable public health
25
As set forth above, seeking relief from the District Court would be
“impracticable,” F.R.A.P. 8(a)(2)(A)(i), because the District Court just entered its
erroneous ruling after full briefing and a hearing, and review before this Court is
urgent.
13
measures. By permitting all religious schools to open during this pandemic while
other schools must remain closed, the District Court has bestowed a new right on
the faithful: the right to put countless people outside the religious school at an
increased risk of exposure to deadly disease.
I. The District Court’s Order Is Contrary to Binding Precedent.
The District Court’s Order granting preliminary injunctive relief disregards
Supreme Court precedent and relies on a complete rewriting of the Free Exercise
Clause. Under the District Court’s reasoning, any individual holding a sincere
religious belief may be excused from complying with neutral and generally
applicable public health measures that interfere with their belief, even during an
emergency. Moreover, the District Court erroneously concluded that requiring
remote instruction for about 15 days is a substantial burden on Plaintiffs’ religious
beliefs – despite the fact that Plaintiffs were engaged in remote instruction for two
months in the Spring and two weeks leading up to the Executive Order. By
granting special privileges to religious schools, the District Court has
impermissibly favored specific religious sects, in violation of the Establishment
Clause. For these reasons, Governor Beshear will succeed on the merits on appeal.
A. The District Court’s Order Fails To Defer To Public Health

Officials In An Emergency.
The District Court’s Order fails to apply binding Supreme Court precedent,
which instructs courts to uphold public health measures responding to the COVID-
14
19 emergency unless the measure (1) “has no real or substantial relationship to [the
emergency]” or (2) “is, beyond all question, a plain, palpable invasion of rights
secured by the fundamental law[.]” Jacobson v. Massachusetts, 197 U.S. 11, 30
(1905). At the bare minimum, Plaintiffs fail to clear this hurdle with respect to a
public health measure that ceases in-person instruction at all public and private K-
12 schools. Indeed, less than a week ago, the Sixth Circuit confirmed this
conclusion by declining to enjoin orders by the Michigan Department of Health
and Human Services closing a private Christian school, which challenged the
orders under the First Amendment. Libertas Classical Assoc. v. Whitmer, No. 20-
2085 (6th Cir. Nov. 20, 2020).26 The District Court’s order prevents Governor
Beshear from taking the very same steps.
In times of an emergency, the Jacobson standard is intended to be a heavy
burden. And now, nine months into the COVID-19 emergency, nearly every court
in the country has deferred to state public health officials charged with responding
to the emergency. Nearly all courts in America, including the Supreme Court of
26
Absurdly, the District Court attempted to distinguish Libertas Classical on the
grounds that the school in that case had voluntarily complied with a closure order.
(DE 35, Page ID#: 727.) But the school in that case only did so when faced with
penalties. And Danville Christian Academy has regularly ceased in-person
instruction, too, and suggested it would in the future to protect its community from
COVID-19. Danville Christian Academy just wants to make the decision as to
when it is safe for its school to teach in-person, which it is unequipped to do. (See
D.E. 24-2.).
15
Kentucky, take their cue from Chief Justice Roberts’ concurring opinion in South
Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613 (Mem.) (2020).In
South Bay, the Court denied a religious organization injunctive relief from a
California order prohibiting, then limiting, religious gatherings based upon the
number of individuals involved. Concurring in the Court’s denial, Chief Justice
Roberts stated:
Although California’s guidelines place restrictions on places of

worship, those restrictions appear consistent with the Free Exercise
Clause of the First Amendment. Similar or more severe restrictions
apply to comparable secular gatherings, including lectures, concerts,
movie showings, spectator sports, and theatrical performances, where
large groups of people gather in close proximity for extended periods
of time. And the Order exempts or treats more leniently only dissimilar
activities, such as operating grocery stores, banks, and laundromats, in
which people neither congregate in large groups nor remain in close
proximity for extended periods.
Id. He continued:
Our Constitution principally entrusts “[t]he safety and the health of the
people” to the politically accountable officials of the States “to guard
and protect.” Jacobson, 197 U.S. 11, 38, 25 S.Ct. 358, 49 L.Ed. 643
(1905).When those officials “undertake[] to act in areas fraught with
medical and scientific uncertainties,” their latitude “must be especially
broad.” Marshall v. United States, 414 U.S. 417, 427, 94 S.Ct. 700, 38
L.Ed.2d 618 (1974). Where those broad limits are not exceeded, they
should not be subject to second-guessing by an “unelected federal
judiciary,” which lacks the background, competence, and expertise to
assess public health and is not accountable to the people. See Garcia v.
San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545, 105
S.Ct. 1005, 83 L.Ed.2d 1016 (1985).
16
Id. at 1613-14. The Court denied a similar application on the same day in Elim
Romanian Pentecostal Church v. Pritzker, Gov. of Illinois, 19A1046 (Order List
590 U.S.) (U.S. May 29, 2020), and again on July 24, 2020, in Calvary Chapel
Dayton Valley v. Steve Sisolak, Governor of Nevada, et al., 591 U.S. ___ (2020).
This Court and others have applied that standard in reviewing executive actions
protecting the public health and safety during the COVID-19 pandemic. See, e.g.,
League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 814 F. App’x 125,
127-28 (6th Cir. 2020) (citing Elim Romanian Pentecostal Church v. Pritzker,
2020 WL 2517093, at *1 (7th Cir. May 16, 2020)); In re Rutledge, 956 F.3d 1018,
1031–32 (8th Cir. 2020); In re Abbott, 956 F.3d 696, 704–05 (5th Cir. 2020). 27
27
Courts throughout the country overwhelmingly have rejected free exercise clause
challenges to public health measures – even where the public health measure
directly targets religious practice, unlike the neutral and generally applicable
Executive Order in this case. South Bay Pentecostal Church v. Newsom¸2020 WL
2687079 (9th Cir. May 22, 2020), aff’d 140 S. Ct. 1613, 1613 (May 29, 2020)
(denying TRO and upholding religious restrictions due to equivalent restrictions
upon comparable secular activities such as theaters); Harvest Rock Church, Inc. v.
Newsom, 2020 WL 5835219 (9th Cir. Oct. 1, 2020) (denying preliminary
injunction on limits to in person worship); Robinson v. Murphy, 2020 WL 5884801
(D.N.J. Oct. 2, 2020) (denying injunctive relief and upholding religious
restrictions); High Plains Harvest Church v. Polis, No. 1:20-cv-01480-
RMMEH,2020 WL 4582720, (D. Colo. Aug. 10, 2020) (denying preliminary
injunction and upholding religious restrictions); Murphy v. Lamont, 3:20-CV-0694
(JCH), 2020 WL 4435167 (D. Conn. Aug. 3, 2020) (denying preliminary
injunction); Ass’n of Jewish Camp Operators v. Cuomo, 1:20-CV-0687
(GTS/DJS), 2020 WL 3766496 (N.D.N.Y. July 6, 2020) (denying preliminary
injunction and upholding restrictions); Legacy Church, Inc. v. Kunkel, 2020 WL
3963764 (D.N.M. July 13, 2020) (denying preliminary injunction and injunctive
relief), and 2020 WL 1905586 (D.N.M. Apr. 17, 2020) (denying TRO and
17
upholding religious restrictions); High Plains Harvest Church v. Polis, No. 1:20-
cv-01480-RM-MEH, 2020 WL 3263902 (D. Colo. June 16, 2020) (denying TRO);
Bullock v. Carney, No. 20-674-CFC, 2020 WL 2813316 (D. Del. May 29, 2020)
(denying TRO), aff’d, 806 Fed. Appx. 157 (Mem) (3d Cir. 2020) (denying
emergency motion for TRO and/or a preliminary injunction); Antietam Battlefield
KOA v. Hogan, 2020 WL 2556496 (D. Md. May 20, 2020) (denying TRO and
upholding religious restrictions); Spell v. Edwards, 2020 WL 2509078 (M.D. La.
May 15, 2020), vacated as moot, 962 F.3d 175 (5th Cir. 2020) (denying
preliminary injunction and dismissing appeal); Elim Romanian Pentecostal Church
v. Pritzker, 2020 WL 2468194 (N.D. Ill. May 13, 2020) (denying TRO and
upholding religious restrictions); Calvary Chapel of Bangor v. Mills, 2020 WL
2310913 (D. Me. May 9, 2020) (denying TRO and upholding religious
restrictions); Our Lady of Sorrows Church v. Mohammad, No. 3:20-cv-00674-
AVC (D. Conn. May 18, 2020);Crowl v.. Inslee, No. 3:20-cv-5352 (W.D. Wash.
May 8, 2020) (denying TRO); Cross Culture Christian Ctr. v. Newsom, , 2020 WL
2121111 (E.D. Cal. May 5, 2020) (denying TRO and upholding religious
restrictions); Cassell v. Snyders, 2020 WL 2112374 (N.D. Ill. May 3, 2020)
(denying TRO and preliminary injunction, upholding religious restrictions);
Lighthouse Fellowship Church v. Northam, 2020 WL 2110416 (E.D. Va. May 1,
2020) (denying TRO and preliminary injunction, upholding religious restrictions);
Gish v. Newsom, No. 5:20-cv-755, 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020)
(denying TRO and affirming religious restrictions due to equivalent restrictions
upon comparable secular activities such as theaters); Davis v. Berke, No.
1:20-cv-98, 2020 WL 1970712 (E.D. Tenn. Apr. 17, 2020) (denying TRO);
Abiding Place Ministries v. Wooten, No. 3:20-cv-683-BAS-AHG, ECF No. 7 (S.D.
Cal. Apr. 10, 2020) (denying TRO); Tolle v. Northam, 2020 WL 1955281 (E.D.
Va. Apr. 8, 2020) (reaffirming and explaining denial of preliminary injunction on
the grounds that the public interest outweighs any harm suffered by religious
restrictions upon the plaintiff); Nigen v. New York, 2020 WL 1950775 (E.D.N.Y.
Mar. 29, 2020) (denying TRO); Elkhorn Baptist Church v. Brown, 366 Or. 506
(2020) (preliminary injunctive relief vacated); Hughes v. Northam, No. CL 20-415
(Va. Cir. Ct. Russell Co. Apr. 14, 2020) (denying TRO on the grounds that the
public interest outweighs any harm suffered by religious restrictions upon the
plaintiff); Hotze v. Hidalgo, No. 2020-22609 (Tex. Dist. Ct. Apr. 13, 2020)
(denying TRO); Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Super. Ct.
Mar. 25, 2020) (denying preliminary injunction).
18
The District Court ignored this precedent when it concluded that the
Governor’s closure of all schools in Kentucky – public and private, regardless of
any affiliation, religious or otherwise – violates Plaintiffs’ First Amendment rights.
That argument leads to an absurd and dangerous expansion of the Free Exercise
Clause, and ignores the Establishment Clause. A public health emergency is no
time to engage in such absurdity. See Jacobson, 197 U.S. at 30.
B. Executive Order 2020-969 Does Not Violate The Free

Exercise Clause.
The District Court held that Governor Beshear’s Order closing in-person
instruction at all schools unlawfully burdened Plaintiffs’ free exercise right to
provide religious education. Because the Order applies to all schools equally, the
District Court was wrong.
The First Amendment provides that “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof[.]” U.S.
CONST., amend. I. The Free Exercise Clause embodies a liberty applied to the
states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296,
303 (1940). However, the clause “does not include liberty to expose the
community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158,
166-67 (1944) (citation omitted). Nor does the clause “relieve an individual of the
obligation to comply with a ‘valid and neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that his religion prescribes
19
(or proscribes).’” Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S.
872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263, n. 3 (1982)).
This is because the clause “embraces two concepts – freedom to believe and
freedom to act. The first is absolute but, in the nature of things, the second cannot
be. Conduct remains subject to regulation for the protection of society.” Cantwell,
310 U.S. at 303-04 (citing Reynolds v. United States, 98 U.S. 145 (1878); Davis v.
Beason, 144 U.S. 33 (1890)).
The holding of “religious convictions which contradict the relevant concerns
of a political society does not relieve the citizen from the discharge of political
responsibilities.” Minersville School Dist. Bd. of Educ. v. Gobitis, 30 U.S. 586,
594-95 (1940). Under the prevailing standard, “a law that is neutral and of general
applicability need not be justified by a compelling governmental interest even if
the law has the incidental effect of burdening a particular religious practice.”
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531
(1993) (citing Smith, 494 U.S. 872).
Governor Beshear’s Executive Order requiring all schools – public
and private – to move to remote learning for three weeks is plainly a neutral
order of general applicability under this standard. Indeed, there is simply no
basis to contend otherwise. The District Court’s holding to the contrary
depends on comparing religious K-12 schools not to other similarly-situated
20
K-12 schools, but to preschools, colleges, offices, and lecture halls. (See,
e.g., D.E. 35, PageID#: 721 (“This Court wonders why under this executive
order, one would be free to attend a lecture, go to work, or attend a concert,
but not attend socially distanced chapel in school or pray together in a
classroom that is following strict safety procedures and social distancing.”)
Specifically, the District Court credited Plaintiffs’ claim that religious
schools must be permitted to operate if other, different entities which pose
different public health risks are open – despite admitting in the hearing that
such policy decisions are not for the courts. 28 The District Court’s
comparison of K-12 schools to colleges and universities is also nonsensical,
because colleges are different from K-12 schools and because the vast
majority colleges and universities – public, private, secular and sectarian – in
Kentucky have ceased or will soon cease in-person instruction until beyond
the January 4, 2021 expiration date of Executive Order 2020-969. 29 As Dr.
28
See, e.g., D.E. 34, Page ID#: 693:2-5 (“I'm not in a good position to weigh the
efficacy of any different policy decision. That should be left to the political
branches.”).
29
Nearly all public colleges or universities in Kentucky transitioned to completely
remote learning beginning Thanksgiving break until January 2021
(http://cpe.ky.gov/covid-19/index.html). As additional examples: Asbury College
ceased in-person instruction from November 20, 2020 until January 11, 2021
(https://www.asbury.edu/about/offices/student-services/registrar/academic-
calendar/); Kentucky Wesleyan College ceased in-person instruction from
November 24, 2020 until January 13, 2021 (https://kwc.edu/academics/academic-
calendar/academic-calendar-2020-2021/); Campbellsville University ceased in-
21
Stack’s uncontroverted declaration makes clear, K-12 schools pose different
dangers than other entities, and the Executive Order is designed to respond
to those dangers. (Stack Decl., D.E. 24-1, PageID##: 442-45, ¶¶ 29-36.) The
District Court’s substitution of its own policy judgment concerning those
restrictions has no basis in the Free Exercise clause and is contrary to South
Bay and Jacobson.30 Further, compulsory attendance is required for all K-12
person instruction from November 25, 2020 until January 19, 2021
(https://www.campbellsville.edu/academics/academic-calendar/); The Southern
Baptist Theological Seminary ceased in-person instruction on November 23, 2020
(https://www.sbts.edu/backtocampus/); Transylvania University ceased in-person
instruction on November 24, 2020 until January 6, 2020
(https://www.transy.edu/1780/2020/11/healthy-at-transy-update-to-2020-21-
academic-calendar/); Georgetown College ceased in-person instruction from
November 24 until January 11 (http://www.georgetowncollege.edu/sites/default/
files/docs/20_21%20Academic%20Calendar%20%28undergraduate%29%20updat
ed.pdf).
30
During the hearing on the motion for a temporary restraining order, the District
Court recognized differences between schools and such places a movie theaters
and malls, and the inappropriateness of a court judging policy decisions. The
District Court stated:
I think what the Governor would say is, Well, there are distinctions
between the gatherings you've identified. The distinctions have nothing
to do with the religious purpose of those gatherings. The distinctions
deal with the ability to distance or the dynamic -- in schools, you have
kind of this unique dynamic in which you have a population that
appears to be largely asymptomatic, even when they have the virus.
And they're going home -- you know, they may catch it from somebody
at school, not even knowing about it – and then going home to a
population that may get the symptoms, and it's more serious for more
than students. So there may be some logistically unique things about
schools that don't exist, for example, in the worship context on Sunday
that require a different approach.…
22
schools in Kentucky – unlike preschools and colleges. 31
But most importantly, the District Court’s comparison of K-12
schools with preschools and colleges in the context of a Free Exercise
challenge makes no sense because the distinction being drawn has nothing to
do with religion. Indeed, any number of religious preschools are continuing
to operate, as are their secular counterparts. The decision to cease in-person
instruction for K-12 schools while leaving other schools open therefore
cannot give rise to a Free Exercise claim.
The Executive Order is consistent with the Free Exercise Clause
because it does not impose burdens upon religious schools beyond what it
requires of all schools. Even the justices who dissented in the interlocutory
appeal in Calvary Chapel acknowledged that so long as secular and religious
organizations’ activities are treated the same, a restriction does not infringe
At some point, though, that leads to me making policy judgments. I

mean, part of the argument here that I hear is that the CDC actually has
contrary advice potentially for states like Kentucky as it relates to
school closing. Is it really my job to try to sort through all of that and
decide, well, here's -- here's what I think. I think we can protect the
public if we -- if the school'll just follow these five things. I mean, I'm
-- I'm designed to be terrible at that, right?
(DE 35, Page ID#: 696:13-699:18.)

31
Moreover, preschools and colleges operate under separate, generally applicable
restrictions – regardless of whether they are religious or secular. The District
Court’s holding that religious institutions are not subject to the same restrictions as
secular ones calls into question whether those restrictions are enforceable.
23
the Free Exercise clause. See Calvary Chapel, 2020 WL 4251360, at *6
(Kavanaugh, J., dissenting) (“a State’s closing or reopening plan may subject
religious organizations to the same limits as secular organizations”).
Executive Order 2020-969 plainly meets this test. The Executive
Order requires that in-person instruction at all schools must cease until
January 4, 2021, a total of about 15 days of in-person instruction. It does not
target religious schools or practice in any way. During the time period of the
order, all schools – public, private, secular, parochial – may continue all
instruction virtually, just like schools such as Danville Christian have done
throughout this public health emergency. The order treats all Kentucky
schools alike. Here, all schools are required to provide remote instruction to
protect public health.
In concluding otherwise, the District Court ignored the plain language
of Executive Order 2020-969, twisting it into one that targeted religious
schools’ decisions to provide “socially distanced chapel in school or pray
together in a classroom.” (D.E. 35, PageID#: 721.) The Executive Order
does no such thing, and the District Court ignores the case law concerning
animus to reach a contrary conclusion. State action is non-neutral if the
purpose “is to infringe upon or restrict practices because of their religious
motivation,” or “the purpose . . . is the suppression of religion or religious
24
conduct.” New Doe Child #1 v. Congress of United States, 891 F.3d 578,
591 (6th Cir. 2018) (quoting Lukumi, 508 U.S. at 533). “A law is not of
general applicability if it ‘in a selective manner impose[s] burdens only on
conduct motivated by religious belief[.]’” Michigan Catholic Conference
and Catholic Family Serv.’s v. Burwell, 755 F.3d 372 (6th Cir. 2014). None
of those conditions applies here. Executive Order 2020-969 is plainly neutral
toward religious institutions; plainly not targeted at religious practice; and
plainly not applied selectively.
The District Court’s reliance on Maryville Baptist Church v. Beshear,
957 F.3d 610 (6th Cir. 2020) and Roberts v. Neace, 758 F.3d 409 (6th Cir.
2020) expanded those holdings to illogical results in stark conflict with
Supreme Court precedent. Both Maryville and Roberts analyzed a mass
gatherings order that prevented groups of individuals from congregating in
churches, theaters, sporting events, etc. See generally 957 F.3d 610; 958
F.3d 409. Those courts ultimately found that churches must be treated
similarly to “law firms, laundromats, liquor stores, gun shops,” 957 F.3d at
614, and “airlines, mining operations, funeral homes and landscaping
businesses” Roberts, 958 F.3d at 414. That reasoning has since been rejected
by the Supreme Court in at least three cases – most notably in South Bay,
140 S.Ct. at 1613 (Roberts, C.J., concurring).
25
The Supreme Court’s November 25, 2020 order in Roman Catholic
Diocese of Brooklyn, New York v. Cuomo, 592 U.S. __ (2020) (per curiam)
yet again confirms that the Executive Order is consistent with the Free
Exercise Clause, and that the District Court has missed the mark. Governor
Cuomo’s order in Roman Catholic Diocese imposed capacity limits on
church attendance, specifically, limits at odds with and drastically lower
than other similarly-situated gatherings. In other words, Governor Cuomo’s
limits were not neutral on their face – they specifically addressed religious
gatherings. Id., Slip Op. at 2-4; see also id. at 16-17 (Kavanaugh, J.,
concurring) (explaining that New York’s restrictions are “discriminatory”
because they impose restrictions on houses of worship that “do not apply to
some secular buildings in the same neighborhoods”). By contrast, Governor
Beshear’s Executive Order requiring remote learning for three weeks is
neutrally applicable to all schools.
Further, in the order granting emergency relief to the Roman Catholic
Diocese, the Court specifically distinguished the restrictions on churches at
issue in Calvary Chapel and South Bay as possible viable alternatives for
Governor Cuomo notwithstanding their direct and non-neutral applicability
to religious gatherings. Id., Slip Op. at 4. The District Court’s apparent belief
26
that even mild restrictions on in-person attendance at religious institutions
are impermissible is contrary to the Supreme Court’s holding.
The measure in this case is remarkably different from the restriction in
Roman Catholic Diocese of Brooklyn. The issue here is the requirement for
all K-12 schools to move to remote instruction for a three-week period,
beginning the week of the Thanksgiving holiday, where exposure to and
spread of COVID-19 is expected to increase dramatically. Instruction can
occur remotely. Indeed, Danville Christian Academy voluntarily instructed
its students remotely at the beginning of the COVID-19 pandemic and again
this Fall when students and staff tested positive. Plaintiffs and the District
Court merely disagree with the policy decisions of the Governor and public
health officials in combatting the disease, which is not actionable.
Moreover, in the case of schools, the Governor can point to a direct
comparison to demonstrate the order’s neutrality and general applicability:
all K-12 schools are closed to in-person instruction. Schools in this state –
whether religious, private or secular – are remarkably similar and may be
regulated as a class, different from businesses.
The District Court’s holding would exempt religious schools from any
measures that do not apply to all businesses, regardless of whether those
measures apply to other schools. Under the District Court’s reasoning, a
27
health department could never close a religious school for health code
violations that apply only to schools – even if those violations put the
community at large at significant risk.
For example, KRS 214.034 requires public and private schools to
ensure all students are vaccinated, but imposes no such requirement on other
businesses.32 And DPH regulations impose specific sanitation requirements
on public and private schools, including rules related to water quality,
sewage disposal, restroom facilities, lighting, and availability of First Aid
supplies. See 902 KAR 45:150. These rules protect the entire community.
But a school holding a sincerely held religious belief to teach in person
despite being unable to provide adequate water supply to its students or safe
sewage disposal could never be closed to in-person instruction under the
District Court’s Order.
The District Court’s Order would also invalidate other generally
applicable statutes that protect the community at large. For instance, KRS
159.040 requires public and private schools to maintain a list of all students,
32
As the Supreme Court held in Prince, when specifically upholding immunization
requirements, States “have a wide range of power for limiting parental freedom
and authority in things affecting the child’s welfare; … this includes, to some
extent, matters of conscience and religious conviction.” 321 U.S. at 166-67.
28
to ensure compliance with truancy laws. 33 KRS 158.080 requires that private
and parochial schools teach in English and provide, at a minimum, the basic
courses provided by public schools.
Furthermore, the Supreme Court has ruled in favor of First
Amendment claimants seeking accommodation only after confirming that no
substantial harm would be imposed on others, a significant consideration
with respect to the Governor’s Order. For instance, in holding that Amish
parents were entitled to an exemption from a compulsory-school-attendance
law, in Wisconsin v. Yoder, the Court explained that “[t]he record strongly
indicate[d] that accommodating the religious objections of the Amish . . .
will not impair the physical or mental health of the child . . . or in any other
way materially detract from the welfare of society.” 406 U.S. 205, 234
(1972) (emphasis added). Similarly, in holding that the Free Exercise Clause
prohibited the state in Sherbert v. Verner from denying unemployment
benefits to a Seventh-Day Adventist because of her refusal to work on her
Sabbath, the Court noted that its ruling would not “serve to abridge any
other person’s religious liberties” or otherwise significantly harm anyone.
374 U.S. 398, 406-09 (2015).
33
In Wisconsin v. Yoder, the Supreme Court reiterated the States’ authority to
enact generally applicable compulsory school attendance statutes. 496 U.S. 205,
236.
29
The District Court’s Order goes much further by inventing a
constitutional right to put countless people outside the religious school at
greater risk of exposure to deadly disease, simply by asserting the dangerous
behavior is a sincerely held religious belief. As Dr. Stack’s declaration
makes clear, people who assume the risk to attend private gatherings put
other people at risk. One wedding in Maine led directly to the infection and
death of seven people – none of whom attended the wedding. Put simply, no
degree of religious conviction excuses compliance with neutrally applicable
public health measures designed to save the lives of the community at large.
Plaintiff’s contention that they are not subject to such laws is absurd.
And the District Court’s conferral of special relief from a neutral, generally
applicable public health directive is similarly absurd, and has no basis in the
Free Exercise Clause. This Court has repeatedly rejected claims for such
special treatment. See, e.g., Ohio Ass'n of Indep. Sch. v. Goff, 92 F.3d 419,
422 (6th Cir. 1996) (“Respondents urge us to hold, quite simply, that when
otherwise prohibitable conduct is accompanied by religious convictions, not
only the convictions but the conduct itself must be free from governmental
regulation. We have never held that, and decline to do so now.”); Kissinger
v. Bd. of Trustees of Ohio State Univ., Coll. of Veterinary Med., 5 F.3d 177,
179–80 (6th Cir. 1993) (declining to grant a student at Ohio State University
30
a religious exemption from a curriculum requirement that was “generally
applicable, was not aimed at particular religious practices, and did not
contain a system of particularized exemptions”).
Declining to provide such exemptions is necessary to a functioning
society. “[G]overnment simply could not operate if it were required to
satisfy every citizen’s religious needs and desires.” Lyng v. Northwest Indian
Cemetery Protective Ass’n, 485 U.S. 439, 452 (1988). The District Court’s
Order to the contrary risks the health of the members of the community.
This Court must reverse the District Court’s Order. Governor
Beshear’s Order is a rational, neutral and generally applicable public health
regulation that does not impermissibly infringe on Plaintiff’s exercise of
their religion.
C. Executive Order 2020-969 Does Not Burden Religious

Practice.
The District Court’s Order holds that Executive Order 2020-969 is
invalid because it impermissibly burdens Plaintiffs’ exercise of their
religious beliefs. That argument applies the wrong standard and
misconstrues the facts.
First, there is no requirement that a neutral, generally applicable
public health measure not burden religious practice to survive Free Exercise
31
Clause claims. 34 The District Court’s focus on the sincerity of Plaintiffs’
religious beliefs entirely misses the point. Specifically, the District Court
appears to believe that all neutrally applicable public health restrictions must
fall away when they encounter sincere religious beliefs: “Maryville Baptist
Church was motivated by a sincerely held belief that Christians should have
the ability to meet in person. Similarly, Danville Christian is motivated by a
sincerely held religious belief that it is called by God to have in-person
religious and academic instruction for its students.” (D.E. 35, Page ID#:
720.)
That holding eviscerates longstanding Supreme Court precedent. The
plaintiffs in Lukumi presumably sincerely believed in the importance of
animal sacrifice, and the plaintiff in Smith presumably held a sincere belief
in the importance of peyote. But the Supreme Court upheld neutral,
generally applicable statutes prohibiting those practices because those
34
By focusing on the question of burden, the District Court appears to have applied
the test laid out in the Religious Freedom Restoration Act. But that that statute
does not apply to states. City of Boerne v. Flores, 521 U.S. 507, 511 (1997). And
Governor Beshear is immune from suit in federal court under Kentucky’s
analogous statute, as the District Court correctly held. Edelman v. Jordan, 415 U.S.
651, 673 (1977) (a state must specify “by the most express language” its intent to
waive Eleventh Amendment immunity and subject itself to suit in federal court.).
Even if he were not immune, state statutes (like KRS 446.350) that conflict with
his emergency orders are suspended. See Beshear v. Acree, --- S.W.3d ---, No.
2020-SC-0313-OA, 2020 WL 6736090, at *23 (Ky. Nov. 12, 2020).
32
statutes protected public health. See Lukumi, 508 U.S. at 531(citing Smith,
494 U.S. 872). Executive Order 2020-969 protects public health, too, and
therefore must be upheld.
In reaching this conclusion, the District Court misconstrues the
Supreme Court’s opinion in Our Lady of Guadalupe School v. Morrissey-
Berru, 140 S.Ct. 2049, 2061 (July 8, 2020). That case applies to some laws
that would otherwise govern internal disputes within a religious
organization. But the Court in that case expressly held that the First
Amendment “does not mean religious institutions enjoy a general immunity
from secular laws ….” Id.
The District Court’s Order holds otherwise, by allowing religious
schools to avoid neutral and generally applicable public health guidelines.
Put simply, the Court in Morrissey-Berru did not expand religious autonomy
to exempt religious institutions from complying with orders related to the
public health. See Hosanna-Tabor Evangelical Lutheran Church and Sch. v.
EEOC, 565 U.S. 171 (2012), 190-91 (distinguishing government regulation
of outward physical acts, such as criminalizing use of peyote, with
regulation of internal church disputes). Religious institutions are subject to a
host of broadly applicable laws even if those allegedly violate their sincerely
held religious beliefs. See e.g. United States v. Lee, 455 U.S. 252, 256–261
33
(1982) (holding religious institutions must pay Social Security taxes for
employees); Bob Jones Univ. v. United States, 461 U.S. 574, 603–605
(1983) (denying non-profit status to religious entities that discriminate
because of race), Bowen v. Roy, 476 U.S. 693, 699–701 (1986) (finding no
violation of the Free Exercise Clause to require applicants for certain public
benefits to register with Social Security numbers); Prince, 321 U.S. at 166–
170, (upholding enforcement of child-labor protections does not violate
freedom of religion); Tony and Susan Alamo Foundation v. Secretary of
Labor, 471 U.S. 290, 303–306 (1985) (holding minimum-wage and
recordkeeping laws do not violate the Free Exercise Clause).
Second, even under the District Court’s erroneous standard, Danville
Christian Academy cannot plausibly claim that the Executive Order
substantially burdens religious practice. Plaintiffs’ claim that the order
substantially burdens their religious freedom is particularly unconvincing
given their voluntary closure for a two-month period in the Spring and
recent 10-day closure due to positive cases within the school.35 The
substantial burden Plaintiffs allege must be seen for what it is: a burden, not
35
Indeed, Danville Christian Academy has touted its ability to provide remote
instruction. Photographs 1-4, Danville Christian Academy Facebook Page, (D.E.
24-2), and publicly available at https://www.facebook.com/DCAWarriors/ (last
visited Nov. 23, 2020).
34
because the school must cease in-person instruction, but because they do not
get to decide when to cease in-person instruction. Yet, Plaintiffs do not
allege a sincerely held religious belief to pick-and-choose which public
health measures it will follow. Thus, the sincerity of Danville Christian
Academy’s belief in in-person education is not the issue. The issue is
whether their religious belief was burdened because the Governor ordered
them to cease in-person instruction, rather than the school making the
decision on their own. For good reason, the law requires more. See Living
Water Church of God, 258 F. App’x 729, 734 (6th Cir. 2014) (holding that
the “‘substantial burden’ hurdle is high” and not met where government
action does not coerce violation of religious beliefs or penalize religious
action by denying equal share of rights and privileges enjoyed by other
citizens).
D. The District Court’s Order Violates The Establishment Clause.
By holding that religious schools are exempt from any generally applicable
public health measure, the District Court has improperly favored religious
adherents, in violation of the Establishment Clause. 36 Such favoritism is prohibited.
36
In addition to their Free Exercise claim below, Plaintiffs also contended that any
exception for worship service in Executive Order 2020-968 impermissibly favored
religion. That argument is without merit. The efforts of Governor Beshear to
ensure that Executive Order 2020-968 does not violate the Free Exercise clause
cannot possibly give rise to an Establishment Clause claim. To hold otherwise is to
35
See, e.g., Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints
v. Amos, 483 U.S. 327, 337 (1987) (holding that government violates the
Establishment Clause when “government itself has advanced religion through its
own activities and influence”).
Indeed, the District Court has turned the Establishment Clause on its
head by requiring the Governor to favor religious institutions over public
and private secular institutions when issuing public health measures. Under
the District Court’s Order, religiously-affiliated schools may reopen, while
public and secular private schools remain closed. (Doc. 35, PageID#: 734.)
Now, the Commonwealth is forced to favor religion over non-religion,
which the Establishment Clause expressly forbids.
E. Plaintiffs’ State Law Claims Were Meritless, As The

District Court Held.
Just as with their federal constitutional claims, Plaintiffs’ state law claims
must fail. The Governor is immune from suit in this Court with respect to
Plaintiffs’ claims that Executive Order 2020-969 violates Sections 1 and 5 of the
Kentucky Constitution and KRS 446.350. With respect to the state claims brought
by the Attorney General, this Court recently held as much, finding that the
eliminate the “play in the joints” between the Establishment and Free Exercise
Clauses. Locke v. Davey, 540 U.S. 712, 718 (2004) (citation omitted).
36
Attorney General could only maintain a suit against the Governor in federal court
“in order to vindicate [a] federal right.” W.O. v. Beshear, 459 F.Supp.3d 833, 838
(E.D. Ky. 2020) (relying on Virginia Office of Prot. & Advocacy v. Stewart, 563
U.S. 247). The state law claims asserted here do not provide a federal right.
In particular, Governor Beshear is immune because the Eleventh
Amendment to the United States Constitution bars suits against the state.
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984). State
officials sued in their official capacities are “arms of the state” entitled to assert the
State’s sovereign immunity on their own behalf. See Ernst v. Rising, 427 F.3d 351
(6th Cir. 2005). The Supreme Court acknowledges three exceptions: suits against
state officials for injunctive relief challenging the constitutionality of the official’s
action, see Ex parte Young, 209 U.S. 123 (1908), suits to which states consent, see
Pennhurst, 465 at 98, and suits invoking Congressional statutes pursuant to the
Fourteenth Amendment, see Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356,
364 (2001).
These exceptions are not applicable to Plaintiffs’ state law claims. The Ex
Parte Young exception does not apply “because the purposes of Ex parte Young do
not apply to a lawsuit designed to bring a State into compliance with state law, the
States' constitutional immunity from suit prohibits all state-law claims filed against
a State in federal court, whether those claims are monetary or injunctive in nature.”
37
Ernst, 427 F.3d at 368 (citing Pennhurst, 465 U.S. at 106). This conclusion applies
even if supplemental jurisdiction otherwise exists. McNeilus Truck & Mfg., Inc. v.
Ohio ex rel. Montgomery, 226 F.3d 429, 438 (6th Cir. 2000).
Kentucky has not waived its immunity to suit under Sections 1 and 5 of the
Kentucky Constitution or KRS 446.350 in federal court. The Kentucky
Constitution provides that the Commonwealth cannot waive immunity except by
express legislative action. Ky. Const. § 231. See also Edelman v. Jordan, 415 U.S.
651, 673 (1977) (a state must specify “by the most express language” its intent to
waive Eleventh Amendment immunity and subject itself to suit in federal court.)
The Commonwealth has not done so. Indeed, as to the state constitutional claims,
“Kentucky law does not recognize a private cause of action under its
Constitution[.]” Jackson v. Murray State Univ., 834 F.Supp.2d 609, 615 (W.D. Ky.
2011) (citing Welch v. Gill, No. 5:03CV–73–R, 2006 WL 861295, at *4 (W.D. Ky.
Mar. 28, 2006) (no private cause of action under section one of Kentucky
Constitution); Tallman v. Elizabeth Police Dep’t, 344 F.Supp.2d 992, 997 (W.D.
Ky. 2004) (no private right of action under the section one or two); Baker v.
Campbell Cnty. Bd. of Educ., 180 S.W.3d 479, 482–84 (Ky. App. 2005) (no
private right of action under section one).37
37
Plaintiffs do not plead a claim under a congressional statute.
38
The Governor’s immunity is not the only reason Plaintiffs state claims fail,
however. The Kentucky Supreme Court recently addressed the Governor’s
emergency powers as a result of other challenges filed by the Attorney General
against the Governor regarding the response to COVID-19. See Beshear v. Acree, -
-- S.W.3d ---, No. 2020-SC-0313-OA, 2020 WL 6736090 (Ky. Nov. 12, 2020). In
particular, the Court applied Jacobson and South Bay to recognize the deference
owed to public health measures designed to slow the spread of COVID-19. Id. at
*27-28. The Court also held the emergency statutes under which the Governor acts
supersedes other statutes. Id. at *23. Indeed, KRS 39A.180(2) suspends any statute
conflicting with an emergency order issued by the Governor. When deciding an
issue of state law, the law of the state controls. Brown v. Cassens Transport Co.,
546 F.3d 347, 363 (6th Cir. 2008). And, under state law, the Governor has
authority to close schools in order to slow the spread of COVID-19. KRS
39A.100(1)(j) (providing the Governor with power to perform any function
deemed necessary to promote and secure the safety of the civilian population).
That aside, the Governor’s school closure order does not otherwise violate
the plain language of Sections 1 and 5 of the Kentucky Constitution or KRS
446.350. The school closure order, as detailed above, applies generally and
neutrally to all schools, regardless of any religious instruction or practice. As such,
under Sections 1 and 5 of the Kentucky Constitution, the orders must have a
39
rational basis. See Gingerich v. Commonwealth, 382 S.W.3d 835, 844 (Ky. 2012).
Here, the rational basis is obvious: to slow the spread of COVID-19 at the most
dangerous time of this pandemic in the Commonwealth.
Furthermore, even if it were applicable, the Governor has not violated KRS
446.350. That statute forbids government action that “substantially burdens” a
person’s freedom of religion without a compelling interest and using the least
restrictive means of achieving that interest. KRS 446.350. Kentucky law does not
define a substantial burden, other than to define a “burden” to include indirect
burdens such as withholding benefits, assessing penalties, or an exclusion from
programs or access to facilities. KRS 446.350. But interpretation of the federal
counterpart indicates a “substantial” burden requires more. To wit, the order here
does not compel behavior violating Plaintiffs’ religious beliefs. See Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 720 (2014) (finding order requiring
employer to cover insurance for birth control to substantially burden religious
beliefs because it required employer to engage in conduct in violation of religious
belief). Here, Plaintiffs do not assert a religious belief against public health
measures to slow the spread of COVID-19.
II. Governor Beshear And The Commonwealth He Represents Will Be

Irreparably Injured Absent A Stay.
Governor Beshear’s Executive Order 2020-969 is intended to slow the
spread of a deadly disease. Kentucky is at an absolutely critical juncture in its
40
battle against COVID-19. Positive cases and deaths are skyrocketing. Hospital
beds and resources are nearing capacity. And currently, more than 10,000 school-
age kids are in quarantine due to exposure. 38 Because Governor Beshear represents
the people of the Commonwealth of Kentucky and is charged with protecting the
public health, see South Bay, 140 S.Ct. at 1613-14, his interest and the public
interest favor a stay.
The District Court’s Order exempting Danville Christian Academy and other
religiously affiliated schools from these public health measures will cause
substantial harm to the public that encounters the children and staff of these
schools. At this point of the pandemic, in Boyle County, a gathering of 15
individuals – smaller than a class at Danville Christian Academy – has a 37%
percent of including an individual with COVID-19.39 The risk increases with more
people.
Without intervention, individuals – including children and teachers and staff
– will contract COVID-19 over the Thanksgiving holiday and then return to their
schools on the following Monday. And there can be no doubt that disease will
38
K-12 School Covid-19 Self-Reported Data, available at
https://public.tableau.com/profile/chfs.dph#!/vizhome/COVID19SchoolSelfReport
ngData/SchoolSelfReportCovid19DB (last visited Nov. 25, 2020).
39
See COVID-19 Event Risk Assessment Planning Tool, Georgia Institute of
Technology, et al., available at https://covid19risk.biosci.gatech.edu/ (last visited
Nov. 25, 2020).
41
spread: As shown above, Danville Christian Academy has failed to adhere to other
less restrictive means necessary to slow the spread of COVID-19 – including by
failing to comply with social distancing and facial coverings requirements.
The public interest heavily favors the State’s ability to take steps to prevent
the spread of a deadly disease. Jacobson, 197 U.S. at 29. Accordingly, this Court
should enter a stay of the District Court’s erroneous Order.
III. Plaintiffs Are Not Harmed By Conducting 15 Days of Remote

Instruction.
On an application for a stay of an injunction, this Court also considers
whether a stay will injure the opposing party. Here, Plaintiffs cannot show injury
from such a stay.
Most importantly, Plaintiffs have repeatedly provided remote instruction to
their students. During a two-month period in the Spring, and during a ten-day
period when the school had to close because of multiple cases of COVID-19,
Danville Christian Academy provided the remote instruction required under
Executive Order 2020-969. Thus, there can be no argument that Danville Christian
Academy is unable or unwilling to provide such services. What Danville Christian
Academy apparently opposes is being ordered to provide such services remotely.
But that interest cannot possibly outweigh the public interest in preventing the
spread of disease or the overwhelming of hospitals.
42
Moreover, any claim by Danville Christian Academy that it is harmed by not
providing in-person instruction must be discounted because Danville Christian
Academy has failed to comply with generally applicable public health
requirements for such instruction. Danville Christian Academy has never complied
with the reporting requirement in 902 KAR 2:220E, which is designed to alert
families and the community at large about the danger of COVID-19 within the
community. Danville Christian Academy has also failed to ensure that students
and visitors wear facial coverings and maintain social distance, as the photographs
in Exhibit B (D.E. 24-2) to the Governor’s Response to the motion for a temporary
restraining order show. Danville Christian’s dangerous refusal to take these small
steps to protect its staff, its students, and its community underscores the threat of
failing to stay the relief granted by the District Court.
Plaintiffs’ interest, which is known not to exclude the possibility of remote
instruction, but to exclude who can order it cease in-person instruction, cannot
outweigh the ability to prevent the spread of a deadly disease. The Governor
sufficiently controlled the first surge of cases with the help of religious and secular
schools voluntarily ceasing in-person instruction in the Spring. The public interest
supports the measure again, even if some schools now disagree.
43
CONCLUSION
The District Court’s Order is contrary to the First Amendment and places the
people of Kentucky at risk beginning Monday, November 30, 2020. Accordingly,
Governor Beshear respectfully requests that this Court stay the District Court’s
injunction pending appeal.
Respectfully submitted,
/s/ S. Travis Mayo

Amy D. Cubbage
General Counsel
S. Travis Mayo
Chief Deputy General Counsel
Marc G. Farris
Deputy General Counsel
Taylor Payne
Deputy General Counsel
Office of the Governor
700 Capitol Building, Suite 106
Frankfort, Kentucky 40601
Phone: 502-564-2611
[email protected]
[email protected]
[email protected]
[email protected]
Counsel for the Governor
44
CERTIFICATE OF SERVICE
I hereby certify that on November 26, 2020 the foregoing Emergency Motion
for a Stay of Preliminary Injunction Pending Appeal was electronically filed with
the Clerk of this Court and served to counsel of record via the Court’s CM/ECF
system. Parties may access the filing through the court’s CM/ECF system.
/s/ S. Travis Mayo

S. Travis Mayo
45

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Case: 20-6341 Document: 16-1 Filed: 11/26/2020 Page: 1

UNITED STATES COURT OF APPEALS

COMMONWEALTH OF KENTUCKY, Attorney General Daniel Cameron, ex rel.

ADNREW G. BESHEAR, in his official capacity as Governor of the

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

GOVERNOR ANDREW G. BESHEAR’S

Under Federal Rule of Appellate Procedure 8(a)(2), Defendant Governor

only immediately impedes the Commonwealth’s ability to enact public health

free exercise jurisprudence to call into question any neutrally-applicable public

District Court would be “impracticable.” F.R.A.P. 8(a)(2)(A)(i). In this case, such

harm to the people of Kentucky beginning Monday, November 30, 2020, by

facilitating the spread of a deadly disease.

implemented at the advice of public health officials, to prevent our healthcare

system from becoming overwhelmed from this surge.

I. COVID-19 Spreads Through In-Person Contact.

Most cases of COVID-19 are spread by people who have no symptoms at

¶ 7.) COVID-19 spreads primarily on tiny droplets transmitted through close

The CDC recently concluded, however, that COVID-19 sometimes spreads

Nov. 24, 2020, available at https://chfs.ky.gov/agencies/dph/covid19/COVID19

catastrophic outbreaks to restaurants, weddings, funerals, and worship services.

spread of disease. Social distancing eliminates close contacts, although airborne

transmission remains a threat. (Id. at PageID#: 436, ¶ 10.) Requiring facial

reduce the risk of disease. However, asymptomatic and presymptomatic

II. Kentucky Responds To COVID-19 With Emergency Public Health

Kentucky, like most other states, is currently in the midst of a potentially

Governor declared a State of Emergency on March 6, 2020, and Kentucky imposed

a number of public health measures, including closing non-life-sustaining

businesses and prohibiting mass gatherings. (Id.)4 The Governor also

followed that recommendation, including Danville Christian Academy, which

it. (Id. ¶ 14.)

A second surge occurred this summer. Consistent with recommendations

(“DPH”), the Commonwealth instituted a facial coverings mandate and briefly

Again, Kentuckians flattened the curve.

Education promulgated rules and recommendations for schools to follow to ensure

safety, including mandating facial coverings and distancing.7 DPH promulgated a

regulation requiring all schools – public or private – to self-report positive cases or

students and faculty. 9

measures. 10 And, in rejecting a challenge to these measures brought by the

Nov. 12, 2020).

III. COVID-19 Is Surging Again Across Kentucky And America.

COVID-19 cases on a nearly daily basis, reflecting exponential growth of the

system by filling up essential hospital beds and sidelining critical healthcare

have already begun curtailing procedures and closing operating rooms as

a8f1c329301ef51fd555fcf/Kentucky%20%2011.17.pdf (last visited Nov. 22,

time, as we approach the Thanksgiving holiday. In Canada, which celebrated

with recommendations. The Governor implemented a Red Zone Reduction plan on

gatherings, and that schools provide remote instruction.15

These recommendations did not stop the exponential growth of COVID-19.

Governor Beshear’s additional mandatory health measures took effect, Kentucky

PageID##: 438-39, ¶ 17.) This widespread disease has overwhelmed contact

Education, Sept. 29, 2020, available at

quarantine. (Id. at PageID# 437, ¶¶ 11-12.)

IV. Kentucky Implements New Public Health Measures To Combat The

recreational facilities; and mandated that office-based businesses cease in-person

operations and provide telecommuting to the greatest extent possible.19

Executive Order 2020-969 requires all schools to cease in-person instruction

and transition to remote or virtual instruction beginning November 23, 2020.20

Elementary schools in non-red zone counties, where the risk of transmission in