On November 12, 2020, the Kentucky Supreme Court ruled unanimously in favor of the authority of the governor to issue pandemic orders. That case is being widely cited, including by Gov. Beshear, as ending this latest challenge before it started. However, there are distinctions that can be drawn between that decision and the new challenge.
In Beshear v. Agree, the Kentucky Supreme Court was focused on the threshold issue of “the Governor’s authority generally in emergencies” and whether Beshear could issue pandemic orders. However, the five insular questions detailed at the outset of the opinion shows that it is not a blank check on any orders that Beshear might want to issue. Question 4 is the most relevant and notes that this was a challenge based on property rights claims under the rational basis test and the decision did not effectively bar future constitutional challenges:
IV. Do the Challenged Orders or Regulations Violate Sections 1 or 2 of the Kentucky Constitution Because They Represent the Exercise of “Absolute and Arbitrary Power Over the Lives, Liberty and Property” of Kentuckians?
Only one subpart of one order, no longer in effect, was violative of Section 2. Property rights are enumerated in the Kentucky Constitution and are entitled to great respect, but they are not fundamental rights in the sense that all governmental impingements on them are subject to strict scrutiny, particularly in the area of public health. As with all branches of government, the Governor is most definitely subject to constitutional constraints even when acting to address a declared emergency. In this case, however, the challenged orders and regulations have not been established to be arbitrary, i.e., lacking a rational basis, except for one subpart of one order regarding social distancing at entertainment venues that initially made no exception for families or individuals living in the same household. Executive orders in emergency circumstances, especially where public health and safety is threatened, are entitled to considerable deference by the judiciary.
One of the “constitutional constraints” referenced by the court is religious freedom.
As the opinion (correctly) indicates, governors are afforded “considerable deference by the judiciary.” Thus, the advantage in the litigation still rests with Beshear. However, the outcome could turn on whether Cameron (and litigant First Liberty) can force the review under the strict scrutiny standard as impinging the free exercise of religion. The pitch for the highest standard of review is driven home by the amended complaint that starts with a quote from Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049, 2064 (2020): “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”
Even under the rational basis test, Cameron’s brief details as much science as law in arguing that there is no basis for closing of schools for young children. He cites various countries where schools were left open and various major organizations from the CDC to the World Health Organization declaring that there is little risk in allowing such classes. For example, the CDC itself has stated repeatedly that these closures are not being done according to their recommendations or findings. CDC Director Redfield stated recently:
“We should be making data driven decisions when we are talking about what we should be doing for institutions or what we should be doing for commercial closures. For example, as we mentioned, last spring CDC did not recommend school closures nor did we recommend their closures today. . . . K through 12 schools can operate with face to face learning and they can do it safely and they can do it responsibly.”
See “CDC Director Redfield Says It Does Not Recommend Closing Schools, Covid Acquired ‘In The Household’”(Nov. 19, 2020) available at https://www.youtube.com/watch?v=sxKhJaqEkcY (last visited Nov. 20, 2020). The complaint therefore argues that the governor is not “following the science” on young children going to school in person.
If the court opts for the strict scrutiny standard, Beshear could have a serious challenge on his hands in dealing with the countervailing science on the risk posed by young children going to school but also the harm in keeping children from schools. Cameron notes that the American Academy of Pediatrics has warned that “[t]he importance of in-person learning is well documented and there is already evidence of negative impacts on children because of school closures in the spring of 2020.”
Thus, the earlier Kentucky Supreme Court decision is not dispositive and much of the outcome could turn on the standard of review.