Pleasant View Baptist Church v. Andy Beshear

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0175p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

PLEASANT VIEW BAPTIST CHURCH; PLEASANT VIEW

│

BAPTIST SCHOOL; PASTOR DALE MASSENGALE;

│

VERITAS CHRISTIAN ACADEMY; MARYVILLE BAPTIST

│

CHURCH; MICAH CHRISTIAN SCHOOL; PASTOR JACK

│ No. 21-6028

ROBERTS; MAYFIELD CREEK BAPTIST CHURCH; >

MAYFIELD CREEK CHRISTIAN SCHOOL; PASTOR TERRY │

NORRIS; FAITH BAPTIST CHURCH; FAITH BAPTIST │

ACADEMY; PASTOR TOM OTTO; WESLEY DETERS and │

MITCH DETERS, on behalf of themselves and their │

minor children M.D., W.D., and S.D.; CENTRAL │

BAPTIST CHURCH; CENTRAL BAPTIST ACADEMY; │

PASTOR MARK EATON; CORNERSTONE CHRISTIAN │

SCHOOL; CORNERSTONE CHRISTIAN CHURCH; JOHN │

MILLER, on behalf of himself and his minor children │

B.M., E.M., and H.M., │

Plaintiffs-Appellants, │

│

│

v. │

│

ANDY BESHEAR, in his individual capacity, │

Defendant-Appellee. │

┘

Appeal from the United States District Court for the Eastern District of Kentucky at Covington.

No. 2:20-cv-00166—Gregory F. Van Tatenhove, District Judge.

Argued: December 8, 2022

Decided and Filed: August 14, 2023

Before: MOORE, STRANCH, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview Hills,

Kentucky, for Appellants. Taylor Payne, OFFICE OF THE GOVERNOR, Frankfort, Kentucky,

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 2

for Appellee. ON BRIEF: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC,

Crestview Hills, Kentucky, Thomas B. Bruns, BRUNS CONNELL VOLLMAR &

ARMSTRONG, Cincinnati, Ohio, for Appellants. Taylor Payne, Travis Mayo, OFFICE OF

THE GOVERNOR, Frankfort, Kentucky, for Appellee.

MOORE, J., delivered the opinion of the court in which STRANCH, J., joined in full.

MURPHY, J. (pp. 20–25), delivered a separate concurring in the judgment.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. A group of churches, private religious

schools, affiliated pastors, and the parents of students who sued on behalf of themselves and their

minor children (collectively “Plaintiffs”) sued Governor Andy Beshear of Kentucky in his

individual capacity for alleged violations of their free-exercise rights, their rights to private-

school education, and their rights to assemble peacefully and associate freely. Plaintiffs allege

that the Governor violated these rights when he issued Executive Order 2020-969 (“EO 2020-

969”), a public-health measure that temporarily barred in-person learning at all private and

public elementary and secondary schools in Kentucky in response to a surge in COVID-19

transmission in the winter of 2020. After the parties litigated Plaintiffs’ request for a preliminary

injunction, Governor Beshear moved to dismiss the case and argued that qualified immunity

shielded him from liability. The district court granted the Governor’s motion. We AFFIRM.

I. BACKGROUND

On November 18, 2020, Governor Beshear issued EO 2020-969, which temporarily

required all elementary and secondary schools to transition to remote learning for a few weeks

during the COVID-19 surge in the winter of 2020. This was not the Governor’s or Kentucky’s

first order aimed at curbing the spread of COVID-19. In prior emergency decisions, this court

determined that some of those prior orders likely violated individuals’ free-exercise rights.

Because Plaintiffs’ pleadings and arguments heavily rely on those prior orders, as well as our

review of those orders, we begin with a brief overview of them.

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 3

A. The March 2020 Orders: Maryville and Roberts1

On March 19, 2020, Kentucky prohibited “[a]ll mass gatherings,” defined as “any event

or convening that brings together groups of individuals, including, but not limited to,

community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals;

conventions; fundraisers; and similar activities.”2 R. 40-2 (Am. Compl. ¶¶ 8–9) (Page ID #416)

(alteration in original) (emphasis added). “[A] mass gathering does not include normal

operations at airports, bus and train stations, medical facilities, libraries, shopping malls and

centers, or other spaces where persons may be in transit,” or other spaces “where large numbers

of people are present, but maintain appropriate social distancing.” Id. ¶¶ 11–12 (Page ID #416–

17).

On March 25, 2020, the Governor issued Executive Order 2020-257, which “require[d]

organizations that [were] not ‘life-sustaining’ to close.” Maryville Baptist Church, Inc. v.

Beshear, 957 F.3d 610, 611 (6th Cir. 2020) (order) (per curiam). The EO identified nineteen

categories of life-sustaining organizations, which included organizations such as gas stations,

banks, shipping and delivery services, funeral services, “[l]aundromats, accounting services, law

firms, hardware stores, and many other entities [that] count as life-sustaining.” Id.; see also

Roberts v. Neace, 958 F.3d 409, 411–12 (6th Cir. 2020) (order) (per curiam); Ky. Exec. Order

No. 2020-257 ¶ 1 (Mar. 25, 2020). These life-sustaining organizations could continue operating

with the implementation of protective measures. Ky. Exec. Order No. 2020-257 ¶ 3; Maryville,

957 F.3d at 614. Religious organizations were considered life-sustaining organizations only

“when they function as charities by providing ‘food, shelter, and social services’”; otherwise, EO

2020-257 required that they cease in-person operations. Maryville, 957 F.3d at 611; see also Ky.

1We rely on Plaintiffs’ Amended Complaint as the basis for their factual allegations, including—where

applicable—factual description of events before a court. We do not, however, treat the Amended Complaint’s

description of courts’ decisions, holdings, or reasoning as factual allegations.

2Plaintiffs alleged that Governor Beshear issued the March 19, 2020 order “acting through Secretary Eric

Friedlander of the Cabinet for Health and Family Services.” R. 40-2 (Am. Compl. ¶ 8) (Page ID #416). Acting

under statutory authority as well as authority granted by Governor Beshear under Executive Orders No. 2020-215

and 2020-243, Kentucky’s Cabinet for Health and Family Services issued the March 19, 2020 order. March 19,

2020 Order, https://governor ky.gov/attachments/20200319_Order_Mass-Gatherings.pdf [https://perma.cc/WRM6-

H2RH]. Commissioner of Public Health Steven J. Stack, M.D., and Acting Cabinet Secretary Eric Friedlander

signed the order. Id.

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 4

Exec. Order No. 2020-257 ¶¶ 1(d), 4. Through these two orders (“March 2020 Orders”), which

explicitly “prohibit[ed] ‘faith-based’ mass gatherings by name,” Maryville, 957 F.3d at 614,

Kentucky prohibited both in-person and drive-in church services, see id. at 611.

This court considered the legality of both orders on an emergency basis on May 2, 2020,

when reviewing a district court’s order denying an “emergency motion for a temporary

restraining order” and an injunction to stop enforcement of the two orders pending appeal.

Maryville, 957 F.3d at 611. We determined that the Free Exercise Clause likely prohibited the

ban on drive-in religious services and enjoined “enforc[ement of the] orders prohibiting drive-in

services at” the plaintiffs’ churches “during the pendency of th[e] appeal” as long as “the public

health requirements mandated for ‘life-sustaining’ entities” were followed. Id. at 616; see also

id. at 614. One week later, in Roberts, we addressed the March 2020 Orders’ in-person

prohibition on “‘faith-based’ ‘mass gatherings.’” 958 F.3d at 411. We concluded that the March

2020 Orders’ “restriction on in-person worship services likely ‘prohibits the free exercise’ of

‘religion,’” and enjoined enforcement of “orders prohibiting in-person services at” the plaintiffs’

churches so long as they implemented the mandated public-health protective measures during the

pendency of the appeal. Id. at 413, 416 (emphasis added) (quoting U.S. Const. amends. I, XIV).

B. Executive Orders 2020-968 and 2020-969, Plaintiffs’ Original Complaint, and the

Danville Lawsuit

We turn now to the executive orders at issue here. On November 18, 2020, citing “a

potentially catastrophic surge in COVID-19 cases which threaten[ed] to overwhelm our

healthcare system and cause thousands of preventable deaths,” Governor Beshear issued

Executive Orders 2020-968 and 2020-969. R. 40-2 (Am. Compl., Ex. A (EO 2020-968)) (Page

ID #436); id. at Ex. B (EO 2020-969) (Page ID #439); id. ¶ 27 (Page ID #421).

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 5

Executive Order 2020-9683: EO 2020-968 imposed restrictions on restaurants and bars;

social gatherings; fitness and recreation centers; venues, event spaces, and theaters; and

professional services from November 20, 2020, until December 13, 2020. R. 40-2 (Am. Compl.,

Ex. A ¶¶ 3–8) (Page ID #437–38). EO 2020-968 either prohibited entirely or restricted indoor

activities, imposed occupancy limits on these activities, and/or required the implementation of

protective measures. Id. It expressly excluded houses of worship from these restrictions. Id.,

Ex. A ¶ 7 (Page ID #437–38). It ordered offices to “mandate that all employees who are able to

work from home do so, and close their businesses to the public when possible.” Id., Ex. A ¶ 8

(Page ID #438). Offices that remained open could not have “more than 33% of employees . . .

physically present in the office any given day.” Id. The order “d[id] not apply to education,

childcare, or healthcare, which operate under separately issued guidance and orders.” Id., Ex. A

¶ 2 (Page ID #437).

Executive Order 2020-969: Plaintiffs challenge the constitutionality of EO 2020-969.

EO 2020-969 ordered “[a]ll public and private” “middle[] and high schools” to move from in-

person learning to remote learning from November 23, 2020, until January 4, 2021. R. 40-2

(Am. Compl., Ex. B ¶¶ 1–2) (Page ID #440). “All public and private elementary . . . schools”

also began remote learning on November 23, 2020, and could return to in-person learning if the

schools fell outside the “red zone” and implemented various protective measures between

December 7, 2020, and January 4, 2021. Id., Ex. B ¶¶ 1, 3 (Page ID #440). By January 4, 2021,

all schools would return to in-person learning. Id. ¶ 3 (Page ID #440). The EO permitted all

schools to “provide[] small group in-person targeted services, as provided in [Kentucky

Department of Education] guidance” and allowed “private schools conducted in a home solely

for members of that household” to continue operating in person. Id., Ex. B ¶¶ 4–5 (Page ID

3Plaintiffs point to the secular activities regulated by EO 2020-968 in arguing that EO 2020-969 violated

their constitutional rights but do not argue that EO 2020-968 independently deprived them of their constitutional

rights. See generally Appellants Br.; Reply Br. Plaintiffs’ issues-presented section specifically asks whether the

“order” shutting down religious schools deprived them of their constitutional rights. Appellants Br. at 1–2.

Plaintiffs’ headings in their reply brief confirm that EO 2020-968 is relevant for the free-exercise claim but does not

support an independent claim. See Reply Br. at 2 (referencing EO 2020-968 and EO 2020-969), id. at 18

(referencing only EO 2020-969), id. at 23 (referencing only EO 2020-969). For clarity, our analysis below considers

whether to compare the secular conduct restricted under EO 2020-968 as well as other conduct unaffected by the

executive orders with the temporary closure of in-person religious schooling.

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 6

#440). EO 2020-969 does not reference religion or religious activity in any way. See generally

id.

On November 23, 2020—the day schools were set to begin remote learning—Plaintiffs

filed this lawsuit and moved for a temporary restraining order and preliminary injunction barring,

among other things, enforcement of EO 2020-969 against private religious schools. R. 1

(Original Compl.) (Page ID #1–44); R. 3 (Mot. for Prelim. Inj.) (Page ID #52–74). The original

complaint—which is no longer the operative complaint—was filed on behalf of additional

plaintiffs and included additional claims and requests for relief. Compare R. 1 (Original Compl.)

(Page ID #1–44), with R. 40-2 (Am. Compl.) (Page ID #413–40).

Two days later, in a different lawsuit also addressing EO 2020-969, the U.S. District

Court for the Eastern District of Kentucky preliminarily enjoined Governor Beshear “from

enforcing the prohibition on in-person instruction with respect to any religious private school in

Kentucky that adheres to applicable social distancing and hygiene guidelines.” Danville

Christian Acad., Inc. v. Beshear, 503 F. Supp. 3d 516, 531 (E.D. Ky. 2020). We stayed the

preliminary injunction pending appeal on November 29, 2020, allowing EO 2020-969 to go into

effect. Commonwealth v. Beshear (Danville), 981 F.3d 505, 507 (6th Cir. 2020) (order) (per

curiam). We held that EO 2020-969, unlike the March 2020 Orders before it, likely did not

violate the plaintiffs’ free-exercise rights. Id. at 509. We explained that “Executive Order 2020-

969 applies to all public and private elementary and secondary schools in the Commonwealth,

religious or otherwise; it is therefore neutral and of general applicability and need not be justified

by a compelling governmental interest.” Id. The Supreme Court declined to vacate our stay on

December 17, 2020, leaving EO 2020-969 in effect. Danville Christian Acad., Inc. v. Beshear,

141 S. Ct. 527, 527–28 (2020).

C. Proceedings After Executive Order 2020-969 Expired on January 4, 2021

The same day that EO 2020-969 expired, R. 40-2 (Am. Compl., Ex. B) (Page ID #439–

40), Governor Beshear moved to dismiss this action under Federal Rule of Civil Procedure

12(b)(6), R. 35-1 (Mem. in Support of Beshear Mot. to Dismiss) (Page ID #379–400). The

Governor argued that the action was moot, that certain plaintiffs lacked standing, that the EO did

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 7

not violate Plaintiffs’ constitutional rights, and that the Governor was entitled to qualified

immunity. Id. In response, Plaintiffs moved for leave to amend their original complaint to

withdraw parties, claims, and requests for relief. R. 40 (Pls.’ Mot. for Leave to Am.) (Page ID

#408–11). Their proposed amended complaint would allege “three claims, which seek

declaratory relief and damages.” Id. at 2 (Page ID #409).

Plaintiffs’ Amended Complaint alleged that Governor Beshear violated their free-

exercise rights, rights to private education, and rights to freedom of association and peaceable

assembly when he issued EO 2020-969. R. 40-2 (Am. Compl. ¶¶ 61–80) (Page ID #430–34). It

alleged that the Governor “ban[ned] in-person religious education and instruction” while

“permit[ting] a number of comparable secular activities of varying sizes.” Id. ¶ 29 (Page ID

#421). Plaintiffs compared and contrasted EO 2020-969’s temporary in-person religious school

closure with the following:

(1) activities subject to restrictions under EO 2020-968 (e.g., permitting in-

person gyms to operate at 33% capacity, id. ¶¶ 29, 33 (Page ID #421–22));

(2) activities subject to other regulations (e.g., permitting in-person child-care

programs to continue at limited occupancy, id. ¶ 30 & nn.3–4 (Page ID

#421)); and

(3) activities that “remain[ed] open” (e.g., “[g]as stations, grocery stores, [and]

retail establishments,” id. ¶¶ 35–37 (Page ID #422)).

Plaintiffs alleged that they hold sincere religious beliefs, which include “the importance

of in-person instruction.” Id. ¶¶ 42–49 (Page ID #423–27). They also alleged that they had

implemented protective measures and that “there is absolutely no evidence of any community

spread of COVID-19 within the school[s].” Id. They further alleged that their religious beliefs

“would be substantially burdened, if the schools were prohibited from offering in-person, in-

class instruction to their students.” Id. ¶ 50 (Page ID #428).

The Governor opposed the motion for leave to amend, arguing that the proposed

amendment was futile because the claims were moot and could not survive a motion to dismiss.

R. 44 (Beshear’s Opp’n to Pls.’ Mot. for Leave to Am.) (Page ID #484–94). The district court

granted Plaintiffs leave to amend and treated the Amended Complaint as operative. Pleasant

View Baptist Church v. Beshear, No. 2:20-cv-00166-GFVT-CJS, 2021 WL 4496386, at *1–3

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 8

(E.D. Ky. Sept. 30, 2021). Turning to the Governor’s motion to dismiss, the district court found

that Plaintiffs’ requests for declaratory relief were moot. Id. at *4–6. It then determined that

their three claims for monetary damages were not moot, but Governor Beshear was entitled to

qualified immunity on those claims. Id. at *6–9. The district court therefore granted the

Governor’s motion to dismiss and dismissed the case. Id. at *1, 9. Plaintiffs filed a timely notice

of appeal, seeking review of the dismissal of their three claims for monetary damages against

Governor Beshear in his individual capacity on the basis of qualified immunity. R. 62 (Notice of

Appeal) (Page ID #669).

II. STANDARD OF REVIEW

“We review de novo the district court’s grant of a motion to dismiss.” Daunt v. Benson,

999 F.3d 299, 307 (6th Cir. 2021) (quotation omitted). “[W]e must determine whether the

complaint ‘fail[s] to state a claim upon which relief can be granted,’ in which case dismissal is

warranted.” Id. at 307–08 (second alteration in original) (quoting Fed. R. Civ. P. 12(b)(6)). Our

review “construe[s] the complaint in the light most favorable to the Plaintiffs,” Gunasekera v.

Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (quoting Hill v. Blue Cross & Blue Shield of Mich., 409

F.3d 710, 716 (6th Cir. 2005)), and “[w]e accept all of the complaint’s factual allegations as true

but ‘need not accept as true legal conclusions or unwarranted factual inferences,’” Mich. Paytel

Joint Venture v. City of Detroit, 287 F.3d 527, 533 (6th Cir. 2002) (citation omitted) (quoting

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). “[A] court may consider

the complaint and any exhibits attached thereto in determining whether dismissal under Rule

12(b)(6) is proper.” Cagayat v. United Collection Bureau, Inc., 952 F.3d 749, 755 (6th Cir.

2020).

III. QUALIFIED IMMUNITY

On appeal, we consider whether the district court erred when it dismissed Plaintiffs’ three

claims on the basis of qualified immunity. “Whether qualified immunity applies to an official’s

actions is a question of law that this Court reviews de novo.” Rhodes v. Michigan, 10 F.4th 665,

672 (6th Cir. 2021) (quoting Virgili v. Gilbert, 272 F.3d 391, 392 (6th Cir. 2001)). “Where a

defendant raises the defense of qualified immunity, ‘it is the plaintiff’s burden to show that the

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 9

defendants are not entitled to qualified immunity.’” Moody v. Mich. Gaming Control Bd., 871

F.3d 420, 425 (6th Cir. 2017) (quoting Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013)).

Qualified-immunity analysis has two prongs. Pearson v. Callahan, 555 U.S. 223, 236

(2009). “First, taken in the light most favorable to the party asserting the injury, do the facts

alleged show that the offic[ial]’s conduct violated a constitutional right?” Rhodes, 10 F.4th at

672 (quoting Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)). Under the second

prong, we evaluate whether “the right [was] clearly established” at the time of the challenged

conduct. Id. at 672, 679 (quoting Silberstein, 440 F.3d at 311). For a right “[t]o be clearly

established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right. This is not to say that an official action is

protected by qualified immunity unless the very action in question has previously been held

unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.’”

Id. at 679 (second alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). Though a plaintiff need not “point to a case ‘on all fours with the instant fact pattern to

form the basis of a clearly established right,’” there must be “a sufficiently analogous case (or

cases) from which a ‘reasonable official would understand that what he is doing violates that

right.’” Id. (first quoting Vanderhoef v. Dixon, 938 F.3d 271, 278 (6th Cir. 2019); and then

quoting Anderson, 483 U.S. at 640).

A. Free-Exercise Claim

The Supreme Court makes clear that qualified-immunity’s two prongs can be considered

in any order. Pearson, 555 U.S. at 236. Some jurists generally prefer to answer the

constitutional question first, fearing that answering only the clearly established prong “risks

constitutional stagnation” and can prevent a constitutional guarantee from becoming clearly

established in the future. See Paul W. Hughes, Not A Failed Experiment: Wilson-Saucier

Sequencing and the Articulation of Constitutional Rights, 80 U. Colo. L. Rev. 401, 402 (2009)

(explaining that a court’s decision to answer the clearly established prong first “risks

constitutional stagnation,” id. at 402, and the “fail[ure] to articulate constitutional rights . . .

deprive[s future litigants of] the benefit of knowing the content and scope of their rights,” id. at

429); Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L.

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 10

Rev. 1, 23–25, 35–38 (2015) (finding that “post-Pearson constitutional law continues to develop,

but the finding of constitutional violations (when granting qualified immunity)—the pure

Saucier development of constitutional law—has decreased,” id. at 38, and finding “some

stagnation with respect to rights-making,” id. at 52); County of Sacramento v. Lewis, 523 U.S.

833, 841 n.5 (1998) (explaining before Pearson “that if the policy of [constitutional] avoidance

were always followed in favor of ruling on qualified immunity whenever there was no clearly

settled constitutional rule of primary conduct, standards of official conduct would tend to remain

uncertain, to the detriment both of officials and individuals”).

Some scholars have noted the value in courts articulating their “reasons for exercising (or

not) their Pearson discretion to reach constitutional questions.” Nielson & Walker, supra, at 52.

Accordingly, we explain why we choose to exercise our Pearson discretion and consider the

free-exercise claim under the clearly established prong. Just days after the Governor issued EO

2020-969, on November 29, 2020, this court considered this exact same free-exercise argument

under the preexisting law and held that EO 2020-969 likely did not violate the Free Exercise

Clause. Danville, 981 F.3d at 507–10.4 In light of that ruling and other precedents, we find it

doubtful, even implausible, that on November 18, 2020, the “constitutional question” of whether

EO 2020-969 violated the Free Exercise Clause was “beyond debate.” See Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). Because of Danville, we bypass the constitutional-violation prong

and adjudicate Governor Beshear’s qualified-immunity defense under the clearly established

prong. See Pearson, 555 U.S. at 236.

We start by providing an overview of the law as it existed on November 18, 2020,

because the “clearly established” inquiry mandates that even without “requir[ing] a case directly

on point . . . existing precedent must have placed the statutory or constitutional question beyond

debate,” “at the time of the challenged conduct.” Al-Kidd, 563 U.S. at 741. It is in that context,

under the “pre-existing law,” that “the unlawfulness must be apparent.” Anderson, 483 U.S. at

4Plaintiffs argue that Danville is an “unreported panel decision” that we can and should ignore. Reply Br.

at 5. Contrary to Plaintiffs’ assertion, however, Danville is a published decision. See generally Danville, 981 F.3d

505–11.

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 11

640. We must therefore confine our analysis to the law as it stood on November 18, 2020.5 See

id.; Al-Kidd, 563 U.S. at 741; Rhodes, 10 F.4th at 679.

The First Amendment states that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. “[T]he

right of free exercise does not 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 (or proscribes).’” Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494

U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J.,

concurring in judgment)). Thus, a law that is neutral, generally applicable, and “incidentally

burdens religious practices usually will be upheld,” whereas “a law that discriminates against

religious practices usually will be invalidated [unless] it is the rare law that can be ‘justified by a

compelling interest and is narrowly tailored to advance that interest.’” Roberts, 958 F.3d at 413

(quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 553 (1993)).

When reviewing neutral laws of generally applicability, we do not apply a heightened standard

of review because doing so would:

open the prospect of constitutionally required religious exemptions from civic

obligations of almost every conceivable kind—ranging from compulsory military

service, to the payment of taxes; to health and safety regulation such as

manslaughter and child neglect laws, compulsory vaccination laws, drug laws,

and traffic laws; to social welfare legislation such as minimum wage laws, child

labor laws, animal cruelty laws, environmental protection laws, and laws

providing for equality of opportunity for the races.

Smith, 494 U.S. at 888–89 (citations omitted).

A law is not neutral if it discriminates on its face, if it is facially neutral but “targets

religious conduct for distinctive treatment,” or if its “object . . . is to infringe upon or restrict

practices because of their religious motivation.” Lukumi, 508 U.S. at 533–34; see also Roberts,

958 F.3d at 413. To determine neutrality, we consider, “among other things, the historical

5In Tandon v. Newsom, 141 S. Ct. 1294 (2021), the Supreme Court issued further guidance on First

Amendment free-exercise analysis. As Plaintiffs acknowledge, “Tandon had not been decided at the time Defendant

Beshear issued his orders at issue in this case, and so [Plaintiffs] do not rely on it under the clearly established

prong.” Reply Br. at 16. For that reason, we decline to address Judge Murphy’s discussion about Tandon. Nothing

should be inferred from our silence on this point.

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 12

background of the decision under challenge, the specific series of events leading to the

enactment or official policy in question, and the legislative or administrative history, including

contemporaneous statements made by members of the decisionmaking body.” Lukumi, 508 U.S.

at 540. A seemingly neutral “general ban[] that cover[s] religious activity,” Maryville, 957 F.3d

at 614, is not, however, generally applicable when the ban “in practice is riddled with,” Ward v.

Polite, 667 F.3d 727, 738 (6th Cir. 2012), “exceptions for comparable secular activities,”

Roberts, 958 F.3d at 413. To determine whether a law is riddled with secular exceptions, we

identify the similar secular activities to compare against the restricted religious activities—the

appropriate secular analogue.

The parties disagree on what secular activities are similar to the temporary closure of in-

person learning at religious schools. The Governor argues that because elementary and

secondary schools are distinct in their environment and made up of students who cannot reliably

comply with protective measures, they present unique COVID-19 risks, and therefore the secular

activity with comparable COVID-19 risks to religious schools is secular schools. See Beshear

Br. at 2, 10–11. That comparison echoes this court’s analysis of EO 2020-969 in Danville. 981

F.3d at 509. Plaintiffs, on the other hand, argue for a broader analogue, urging the comparison

between the treatment of religious schools against all other activities that were permitted to

continue operating with or without restrictions. Appellants Br. at 16–19, 21–22. The problem

for Plaintiffs, however, is that Governor Beshear issued EO 2020-969 amid an active and

energetic constitutional debate regarding the selection of the appropriate secular analogue when

adjudicating free-exercise claims.

Contrary to Plaintiffs’ contention, our May 2, 2020 and May 9, 2020 orders in Maryville

and Roberts did not make “sufficiently clear t[o] a reasonable official,” Anderson, 483 U.S. at

640, that temporarily mandating remote learning for all elementary and secondary schools—

religious and secular alike—ran afoul of the Free Exercise Clause. As an initial matter, lurking

in the pages of our Maryville and Roberts orders is our concern that the two March 2020 Orders

explicitly targeted religion. We described the March 2020 Orders as “hav[ing] several potential

hallmarks of discrimination.” Maryville, 957 F.3d at 614. For example, Maryville identified

with apprehension the March 2020 Orders’ facial reference to religious institutions, as they

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 13

expressly “prohibit[ed] ‘faith-based’ mass gatherings by name.” Id.; see also Appellants Br. at

6–7 (describing the March 2020 Orders as facially targeting religious activities). We continued

to communicate our concern about the March 2020 Orders’ perceived hostility towards religious

exercise in Roberts. Roberts, 958 F.3d at 414 (stating that the “congregants just want to be

treated equally,” “don’t seek to insulate themselves from the Commonwealth’s general public

health guidelines,” and should not be subject to the worst assumptions “when [they] go to

worship but” the best assumptions “when [they] go to work or go about the rest of their daily

lives in permitted social settings”). Both of our decisions also substantially detailed law

enforcement’s role in the potential criminal enforcement of the March 2020 Orders. Maryville,

957 F.3d at 611–12 (explaining that during “a drive-in Easter service” while the orders were in

effect, “Kentucky State Police arrived in the parking lot[,] . . . issued notices to the congregants

that their attendance at the drive-in service amounted to a criminal act,” and “recorded

congregants’ license plate numbers and sent letters to vehicle owners requiring them to self-

quarantine for 14 days or be subject to further sanction”); id. at 613 (stating later that “[o]rders

prohibiting religious gatherings, enforced by police officers telling congregants they violated a

criminal law and by officers taking down license plate numbers, amount to a significant burden

on worship gatherings”); Roberts, 958 F.3d at 412, 415 (same). In Danville, we found

Maryville’s and Roberts’s concerns about the March 2020 Orders’ facial references to and

perceived hostility towards religion noteworthy and distinguishable from EO 2020-969, which

“cannot be plausibly read to contain even a hint of hostility towards religion.” Danville, 981

F.3d at 509 (“In Roberts[] and Maryville, the challenged COVID-19 orders . . . appl[ied]

specifically to houses of worship.” (citations omitted) (emphasis added)).

It is of course true that when considering whether restrictions on in-person and drive-in

religious mass-gatherings would likely violate the Constitution, Maryville and Roberts treated—

as comparable secular activities to church services—locations like “law firms, laundromats,

liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses”

that could operate while implementing protective measures. Roberts, 958 F.3d at 414; see also

Maryville, 957 F.3d at 614. But neither Maryville nor Roberts stated a standard or discussed an

approach for how to identify an appropriate secular analogue. We merely observed—without

any legal citations—that “many of the [March 2020 Orders’] serial exemptions for secular

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 14

activities pose comparable public health risks to worship services.” Maryville, 957 F.3d at 614

(emphasis added); Roberts, 958 F.3d at 414 (same). Contrary to Plaintiffs’ contention,

Appellants Br. at 16–17, however, we did not hold or make any controlling statement of law that

any secular activity that posed the same COVID-19 risks was per se similar for the purpose of

our analysis. Maryville, 957 F.3d at 614; Roberts, 958 F.3d at 414. Rather, we relied on Ward,

667 F.3d at 738, in support of the proposition that “the more exceptions to a prohibition, the less

likely it will count as a generally applicable, non-discriminatory law.” Maryville, 957 F.3d at

614; Roberts, 958 F.3d at 413. We also told the Governor that he could consider the ability to

enforce social-distancing and mitigation efforts when responding to the COVID-19 pandemic.

See Roberts, 958 F.3d at 414 (“Some groups in some settings, we appreciate, may fail to comply

with social-distancing rules. If so, the Governor is free to enforce the social-distancing rules

against them for that reason and in that setting, whether a worship setting or not.”). In short,

after Maryville and Roberts, uncertainty and debate remained active regarding how to identify

the appropriate secular analogue, thus failing to clearly establish that it might constitute a

constitutional violation to close all schools including temporarily close in-person religious

schools, while leaving open with restrictions locations like restaurants, theaters, gas stations,

grocery stores, retail establishments, and gyms.

This is reenforced by Justice Alito’s own observation, made a few months after the

issuance of EO 2020-969, that “identifying the secular activities that should be used for

comparison has been hotly contested” by the courts, particularly in the context of COVID-19.

Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1921–22 (2021) (Alito, J., concurring) (emphasis

added) (collecting cases and detailing their conflicting approaches when identifying

comparators). In making this point, Justice Alito offered numerous examples. Id. at 1922. His

first example of the “hotly contested” debate occurred on May 29, 2020, just a few days after

Maryville and Roberts, when the Supreme Court decided South Bay United Pentecostal Church

v. Newsom, 140 S. Ct. 1613 (2020). In South Bay, the Court refused to enjoin a California order

that imposed “temporary numerical restrictions on public gatherings,” including a limit of “25%

of building capacity or a maximum of 100 attendees” at houses of worship. 140 S. Ct. at 1613

(Roberts, C.J., concurring). The Chief Justice’s concurring opinion identified the comparable

secular activities as “lectures, concerts, movie showings, spectator sports, and theatrical

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 15

performances, where large groups of people gather in close proximity for extended periods of

time.” Id. The California order exempted “only dissimilar activities, such as operating grocery

stores, banks, and laundromats”—activities that the Chief Justice described as those “in which

people neither congregate in large groups nor remain in close proximity for extended periods.”

Id. (emphasis added). The Chief Justice’s analysis distinguished between large group

environments in which people remained in close proximity for a prolonged period of time from

other public environments where, despite the large quantity of people, they neither congregate

together nor remain in close proximity for a prolonged period of time. Id. The dissenting

justices disagreed, however, and found those same activities comparable to houses of worship for

the purposes of the free-exercise analysis. S. Bay, 140 S. Ct. at 1615 (Kavanaugh J., dissenting).

The justices’ disagreement and treatment of religious gatherings as “dissimilar” from grocery

stores, banks, and laundromats, undermines any suggestion that Maryville and Roberts (issued

before South Bay), clearly established how to determine which secular conduct to compare.

South Bay reflects a continued disagreement regarding how to apply our legal principles and

conduct that comparison.

Another one of Justice Alito’s examples of the “hotly contested” debate was Danville

itself. Fulton, 141 S. Ct. at 1922 (Alito, J., concurring). Though our decision in Danville is not

part of the retrospective legal landscape that we consider in our clearly established analysis

(because it was decided eleven days after Governor Beshear issued the EO6), this court’s

analysis of the exact conduct at issue here and the precedent that controlled when Governor

Beshear issued EO 2020-969 both demonstrate the live debate on this exact constitutional

question on November 18, 2020. Danville’s ruling shows that three judges of this court engaged

in scholarly review of the “pre-existing law,” Anderson, 483 U.S. at 640, and concluded that EO

2020-969 was constitutional under the Free Exercise Clause. This further provides strong

6Plaintiffs argue that Danville should be ignored for the purposes of assessing whether the right was clearly

established because of its purported “deviation” from the other panels’ decisions. Appellants Br. at 32. This

argument fails. In addition to the fact that Danville does not conflict with prior precedent, neither Plaintiffs’ cited

authority, King v. Taylor, 694 F.3d 650, 660, n.7 (6th Cir. 2012), nor this court’s precedent supports excluding

certain cases from the clearly established legal landscape. Plaintiffs point to a pre-merits portion of King that

addresses whether a party forfeited its service-of-process defense, 694 F.3d at 655, 658–60, where we explained that

if “more recent cases might suggest” a different forfeiture rule, the prior case controlled, id. at 660 n.7. Only later

did we turn to the merits and consider qualified immunity. Id. at 661–65.

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 16

evidence that unlawfulness was not apparent and that an active and vibrant debate on the

constitutional question existed at the time of the challenged conduct. See Wilson v. Layne, 526

U.S. 603, 618 (1999) (“If judges thus disagree on a constitutional question, it is unfair to subject

[officials] to money damages for picking the losing side of the controversy.”). Even outside the

qualified-immunity context, we have recognized the impact that “judicial disagreement” and the

circuit’s “unsettled jurisprudence” have on government officials. See United States v. Reed, 993

F.3d 441, 444 (6th Cir. 2021) (quoting United States v. Hodge, 246 F.3d 301, 309 (3d Cir. 2001)

(Alito, J.)) (explaining judicial disagreement and the circuit’s “‘unsettled jurisprudence’”

permitted an official to reasonably rely on what might otherwise be an unconstitutional warrant

as the court could not expect officials “to know better than judges,” id. at 452 (first quoting

Hodge, 246 F.3d at 309)).

Neither this court’s nor the Supreme Court’s precedent clearly established that

temporarily closing in-person learning at all elementary and secondary schools would violate the

Free Exercise Clause when Governor Beshear issued EO 2020-969 on November 18, 2020. As

the Governor points out, Plaintiffs have not provided this court with any cases denying a

government official qualified immunity for their immediate public-health response to the

COVID-19 pandemic. Beshear Br. at 6. Because the Governor issued EO 2020-969 in the midst

of a vibrant debate on this constitutional issue, he is thus entitled to a qualified-immunity

defense. Accordingly, because Plaintiffs cannot demonstrate that a clearly established right

existed at the time Governor Beshear issued EO 2020-969, we AFFIRM the district court’s

dismissal of Plaintiffs’ free-exercise claim.

B. Private-Education Claim

Plaintiffs’ claim that Governor Beshear violated their rights to private education under

the Fourteenth Amendment also fails. In a short section of their brief, Plaintiffs argue that

parents were denied their rights to send their children to in-person private religious school.

Appellants Br. at 37. The constitutional right to a private education concerns a parent’s choice

regarding whether to send their children to private school and direct their curriculum. See Meyer

v. Nebraska, 262 U.S. 390 (1923) (addressing parental rights to direct and control education of

children); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) (addressing parental rights against

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 17

children’s compelled attendance at public school); Wisconsin v. Yoder, 406 U.S. 205 (1972)

(addressing parents’ right against children’s compelled schooling above a certain age). EO

2020-969 deprived the parent plaintiffs of neither a choice to send their children to private school

over public school nor input in their children’s curriculum. Plaintiffs do not allege that any

children were precluded from enrolling in private schools while the EO was in effect or that the

government intervened in the schools’ curriculum. See R. 40-2 (Am. Compl. ¶¶ 74–75). Under

these circumstances, EO 2020-969 did not implicate Plaintiffs’ rights to private education. The

non-parent plaintiffs point to no authority establishing that this right exists outside the parental

context. Nonetheless, even if Plaintiffs could establish a constitutional violation, their claim

would still fail because they have not demonstrated that the right was clearly established.

Because Governor Beshear is also entitled to qualified immunity on this claim, we AFFIRM the

district court’s dismissal of Plaintiffs’ claim that the Governor violated their rights to private

education.

C. Peaceful-Assembly and Freedom-of-Association Claims

Plaintiffs’ final claim is that EO 2020-969 violated their rights to assemble peacefully

and associate freely. But, because Plaintiffs’ brief addresses this final claim “in a perfunctory

manner, unaccompanied by some effort at developed argumentation,” they have forfeited their

claim. United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999) (quoting United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). Their one-page section on this claim simply names the

Constitution’s two forms of association (intimate and expressive), incorrectly states that strict-

scrutiny analysis applies to their intimate-association claim, and then ends with the conclusory

statement that a prohibition on gatherings violated their expressive-association rights.

Appellants Br. at 39. The failure to develop any actual arguments on these points, including

articulation of which rights are implicated and how the EO interfered with or burdened those

rights, renders the argument forfeited.

Even so, Plaintiffs’ claims would fail on the merits. “The Constitution protects two

distinct types of association: (1) freedom of expressive association, protected by the First

Amendment, and (2) freedom of intimate association, a privacy interest derived from the Due

Process Clause of the Fourteenth Amendment but also related to the First Amendment.”

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 18

Anderson v. City of LaVergne, 371 F.3d 879, 881 (6th Cir. 2004) (emphases added). Under the

right to intimate association, “choices to enter into and maintain certain intimate human

relationships must be secured against undue intrusion by the State.” Id. (quoting Roberts v. U.S.

Jaycees, 468 U.S. 609, 617–18 (1984)). The right protects interpersonal relationships, including

“those that attend the creation and sustenance of a family—marriage; childbirth; the raising and

education of children; and cohabitation with one’s relatives.” Jaycees, 468 U.S. at 619 (citations

omitted); Johnson v. City of Cincinnati, 310 F.3d 484, 499 (6th Cir. 2002). “The kinds of

personal associations entitled to constitutional protection are characterized by ‘relative

smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and

seclusion from others in critical aspects of the relationship.’” Anderson, 371 F.3d at 881

(quoting Jaycees, 468 U.S. at 620). After identifying an “intimate association,” we next

determine whether the challenged law “direct[ly] and substantial[ly] interfere[s]” with the

intimate association. Id. at 882. If there is “[a] ‘direct and substantial interference’ with intimate

associations” the law “is subject to strict scrutiny, while lesser interferences are subject to

rational basis review.” Id. (quoting Akers v. McGinnis, 352 F.3d 1030, 1040 (6th Cir. 2003)).

Plaintiffs point to one intimate association—a “family member’s right to participate in

child rearing and education.” Johnson, 310 F.3d at 499; Appellants Br. at 39. But, “we will find

‘direct and substantial’ burdens on intimate associations ‘only where a large portion of those

affected by the rule are absolutely or largely prevented from [forming intimate associations], or

where those affected by the rule are absolutely or largely prevented from [forming intimate

associations] with a large portion of the otherwise eligible population of [people with whom they

could form intimate associations].’” Anderson, 371 F.3d at 882 (alterations in original) (quoting

Akers, 352 F.3d at 1040). Plaintiffs fail to allege or argue how all plaintiffs can raise this

intimate-association claim, rather than just the parents. Even the parent plaintiffs fail to address

how the temporary transition to remote learning “absolutely or largely prevented” parents from

forming these intimate associations. Id. Moreover, temporary remote learning did not affect the

parents’ choices of which schools to enroll their children in or the content of the curriculum.

Accordingly, Plaintiffs have not demonstrated a direct and substantial interference with a right of

intimate association. EO 2020-969 is rationally related to the legitimate government interest of

curbing the spread of COVID-19. Plaintiffs’ intimate-association argument fails.

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 19

The right to expressive association provides “a right to associate for the purpose of

engaging in those activities protected by the First Amendment—speech, assembly, petition for

the redress of grievances, and the exercise of religion.” Anderson, 371 F.3d at 881 (quoting

Jaycees, 468 U.S. at 618). Plaintiffs also briefly state that EO 2020-969 violated their

association rights by denying them expressive association. The Supreme Court has recognized

that the right “protects more than just a group’s membership decisions,” and it has held

unconstitutional “laws . . . requir[ing] disclosure of membership lists for groups seeking

anonymity,” laws that “impose penalties or withhold benefits based on membership in a

disfavored group,” and “[t]he forced inclusion of an unwanted person in a group.” Rumsfeld v.

F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 69 (2006) (citations omitted); Miller v. City

of Cincinnati, 622 F.3d 524, 537 (6th Cir. 2010) (quoting Boy Scouts of Am. v. Dale, 530 U.S.

640, 648 (2000)). Plaintiffs neither asserted one of these protected forms of expressive

association nor identified how EO 2020-969’s temporary-remote-schooling requirement

interfered with their expressive-association rights beyond using the phrase “a prohibition to

gather.” We cannot guess for them. Accordingly, this argument fails as well.

The Governor did not violate Plaintiffs’ rights to assemble peacefully or associate freely.

Here too, even if the Governor had violated these rights, Plaintiffs have failed to carry their

burden to demonstrate that the rights were clearly established. Accordingly, we AFFIRM the

district court’s dismissal of Plaintiffs’ peaceful-assembly and freedom-of-association claims.

IV. CONCLUSION

For the foregoing reasons, we hold that Governor Beshear is entitled to qualified

immunity on the Plaintiffs’ free-exercise claim because the temporary closure of in-person

learning at all elementary and secondary schools, including private religious schools, during a

surge in COVID-19 transmission did not violate clearly established rights. We further hold that

the Governor did not violate Plaintiffs’ rights to private education or rights to assemble

peacefully and associate freely. We therefore AFFIRM the judgment of the district court.

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 20

___________________

CONCURRENCE

___________________

MURPHY, Circuit Judge, concurring in the judgment. In November 2020, Kentucky

Governor Andy Beshear temporarily barred in-person instruction at all schools (including

religious schools) to slow the spread of COVID-19. A group of religious schools and a few

parents (whom I will call the “Schools”) sued him over this closure. The Schools now seek

damages from the Governor. They allege that his ban on in-person instruction violated their

right to the “free exercise” of religion. U.S. Const. amend. I. To overcome the Governor’s

qualified-immunity defense, however, the Schools must do more than show that he violated the

Free Exercise Clause. They must also show that he violated “clearly established” free-exercise

law. See District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). I agree with my colleagues

that the Schools cannot make the second showing. But I reach that result through different

reasoning.

*

In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S.

872 (1990), the Court held that a “neutral” and “generally applicable” law does not violate the

Free Exercise Clause even if the law restricts conduct undertaken for religious reasons. Id. at

878–80. Since Smith, the Court has subjected to strict scrutiny only those regulations that flunk

its “neutral” and “generally applicable” test. See, e.g., Fulton v. City of Philadelphia, 141 S. Ct.

1868, 1881 (2021); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

546–47 (1993). This case thus requires us to ask whether the Governor’s school closure

qualified as a neutral and generally applicable ban under Smith. I see two ways to look at that

question: from our perspective today and from his perspective in 2020. This timing makes a

critical difference.

Today, we have the benefit of Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam).

That decision offers clear guidance on how to decide whether a regulation is neutral and

generally applicable. A ban on in-person instruction at religious schools cannot satisfy this test if

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 21

the government has regulated “any comparable secular activity” with a lighter touch. 141 S. Ct

at 1296. In other words, a regulation that burdens religiously motivated conduct will “trigger

strict scrutiny” even if contains just one comparable secular exception to its restrictions. See id.

In effect if not in name, Tandon adopted a “most-favored nation status” for religious exercise:

the government must treat religious conduct as favorably as the least-burdened comparable

secular conduct. Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2611 (2020)

(Kavanaugh, J., dissenting from denial of application for injunctive relief) (citation omitted).

Tandon next gives clear guidance on how to decide whether secular conduct is

“comparable” to religious conduct. “[W]hether two activities are comparable for purposes of the

Free Exercise Clause must be judged against the asserted government interest that justifies the

regulation at issue.” Id. That is, we must identify the reason why the government has burdened

religion. We then must ask whether that reason extends to the unburdened secular conduct. See

id. If so, the law is not generally applicable. See id. That is true even if the religious conduct

(say, going to a prayer group) and the secular conduct (say, going to a bar) are quite different.

See id. at 1297. In this respect, Tandon adopted our reasoning in Monclova Christian Academy

v. Toledo-Lucas County Health Department, 984 F.3d 477 (6th Cir. 2020) (order). There, we

recognized that the test for comparing more-restricted religious conduct and less-restricted

secular conduct turns on “the interests the State offers” for its restriction. Id. at 480. The test

does not turn on “whether the religious and secular conduct involve similar forms of activity.”

Id.

Tandon lastly explained how this comparability test operates in the COVID-19 context.

Because COVID-19 regulations exist to fight the disease’s spread, “[c]omparability is concerned

with the risks various activities pose, not the reasons why people gather.” Tandon, 141 S. Ct. at

1296. If a regulation limits religious conduct more strictly than secular conduct that poses a

similar risk of COVID-19 spread, it is not generally applicable. See id. For example, if a

government decides that it must sharply limit the attendance at churches to stop the spread of

COVID-19, it must extend these sharp limits to all similarly risky secular gatherings. See Roman

Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66–67 (2020) (per curiam).

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 22

According to the Schools, their complaint alleges that the Governor’s orders flunk this

test. He did not prohibit all in-person attendance at many secular venues, from childcare centers

to gyms to retail stores. Yet the complaint says that these venues posed “the same or even

greater potential risk” of COVID-19 than the Schools. Am. Compl., R.40-2, PageID 431. The

Schools had seen “no evidence of any community spread of COVID-19” at their locations. Id.,

PageID 424–28. The Director of the Centers for Disease Control and Prevention also opined that

the “existing data” at the time showed that “K-12 schools [were] not transmission pathways for

the virus, in part due to safety protocols in place[.]” Id., PageID 415 n.2 (summarizing press

briefing). Because we must accept these allegations at this stage, the Schools argue, the

Governor’s orders triggered strict scrutiny by regulating comparable secular activities less

strictly than the Schools.

*

Yet we need not decide whether the Schools allege a free-exercise violation under current

law. To defeat the Governor’s qualified-immunity defense, they must prove that Tandon’s legal

framework was “clearly established at the time” that the Governor acted. Wesby, 138 S. Ct. at

589 (citation omitted) (emphasis added). This requirement disqualifies most of the decisions that

clarify existing law. The Governor issued the challenged order on November 18, 2020. So we

may not look to the principles announced in Tandon. The Supreme Court issued that decision in

April 2021. Nor may we look to the principles in the case on which Tandon relied: Roman

Catholic Diocese of Brooklyn. The Court issued that decision a week after the Governor’s order.

And we may not fall back on the similar principles we announced in Monclova. We issued that

opinion over a month after the Governor’s order. 984 F.3d at 479.

Unlike my colleagues, I read several earlier decisions to clearly establish one part of

Tandon’s framework: that a secular activity is “comparable” to religious conduct if it poses a

similar risk of COVID-19 spread. As far back as Lukumi, the Court held that this general-

applicability test turns on whether unbanned secular conduct “endangers” the interests advanced

by the law “in a similar or greater degree” than the burdened religious conduct. 508 U.S. at 543.

And because COVID-19 regulations advanced the government’s interest in public health, we

asked in this context whether the regulations exempted secular activities that “pose[d]

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 23

comparable public health risks” to banned worship services. Maryville Baptist Church, Inc. v.

Beshear, 957 F.3d 610, 614 (6th Cir. 2020) (per curiam); Roberts v. Neace, 958 F.3d 409, 414

(6th Cir. 2020) (per curiam).

Critically, though, no decision clearly established the “most-favored nation” part of

Tandon’s legal rule: that regulations do not qualify as “neutral and generally applicable” if “they

treat any comparable secular activity more favorably than religious exercise.” 141 S. Ct. at

1296. Thus, no earlier decision clearly barred the Governor’s logic that a school regulation

qualified as neutral and generally applicable as long as it covered religious and non-religious

schools alike.

Start with the Supreme Court’s precedent. In Smith, which first adopted the “neutral and

generally applicable” test, the Court considered a ban on controlled substances that “obviously”

satisfied this test. Douglas Laycock & Steven T. Collis, Generally Applicable Law and the Free

Exercise of Religion, 95 Neb. L. Rev. 1, 5 (2016); see Smith, 494 U.S. at 874. In the decades

after Smith, the Court offered further guidance on this test only once, in Lukumi. See Laycock &

Collis, supra, at 5–6. But Lukumi provided little help on this topic because it involved an equally

obvious religious “gerrymander.” 508 U.S. at 536. The effect of the relevant ordinances left no

doubt that city officials had written them to ban only the practices of a specific religion. See id.

at 531–46. Lukumi thus did not need to “define with precision the standard used to evaluate

whether a prohibition is of general application” because the ordinances would fail any standard.

Id. at 543.

Until recently, then, the Court had not explained in detail how we should apply its

general-applicability test when a government edict falls in between a regulation that was

obviously general (as in Smith) and one that was obviously not (as in Lukumi). This lack of

precedent had produced “confusion and disagreement” in this area by the time of the Governor’s

orders. Calvary Chapel, 140 S. Ct. at 2610 (Kavanaugh, J., dissenting from denial of application

for injunctive relief); see Christopher C. Lund, A Matter of Constitutional Luck: The General

Applicability Requirement in Free Exercise Jurisprudence, 26 Harv. J.L. & Pub. Pol’y 627, 639–

41 (2003) (summarizing debate). Justices and scholars alike described the Court’s standards as

“perplexing.” Danville Christian Acad., Inc. v. Beshear, 141 S. Ct. 527, 529 (2020) (Gorsuch, J.,

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 24

dissenting from denial of application to vacate stay) (citing Laycock & Collis, supra, at 5–6).

But a perplexing test is not a clearly established one. See Wesby, 138 S. Ct. at 590.

Unable to rely on Supreme Court cases, the Schools fall back on our own. In the months

before the Governor’s actions, we had twice granted injunctive relief to religious entities in this

COVID-19 context, allowing those entities to hold drive-in and in-person worship services. See

Maryville, 957 F.3d at 616; Roberts, 958 F.3d at 416. Yet we did not then articulate Tandon’s

rigorous rule applying strict scrutiny whenever the government treats even one “comparable

secular activity more favorably than religious exercise.” 141 S. Ct. at 1296. Rather, we

articulated a more flexible “rule of thumb” that “the more exceptions to a prohibition, the less

likely it will count as a generally applicable, non-discriminatory law.” Maryville, 957 F.3d at

614 (citing Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012)). In other words, we held that at

“some point” a policy will contain so many secular exceptions that it will lose its generally

applicable status and resemble “a system of individualized exemptions[.]” Ward, 667 F.3d at

740.

Unlike Tandon, these cases suggested a general standard rather than a specific rule. Like

the Fourth Amendment’s generic reasonableness test, that standard gave government actors more

room to be wrong in their decisionmaking without losing their qualified-immunity protections.

See Wesby, 138 S. Ct. at 590; cf. Harrington v. Richter, 562 U.S. 86, 101 (2011). And the

Governor could reasonably have thought that, despite some exceptions for comparable secular

activities, his decision to close all schools—including secular schools—rendered his order

generally applicable. He should not face monetary liability simply because he did not predict

Tandon’s stricter test.

Indeed, we ourselves failed to predict Tandon’s stricter test. We stayed an injunction of

the Governor’s school-closure order shortly after he issued it without asking whether he had

imposed lesser burdens on “any comparable secular activity” (that is, any secular activity that

posed a similar risk of COVID-19 spread). Tandon, 141 S. Ct at 1296; see Kentucky ex rel.

Danville Christian Acad., Inc. v. Beshear, 981 F.3d 505, 509 (6th Cir. 2020) (order). The

Governor’s successful motion to stay the injunction of his school-closure order makes it difficult

to say that he acted in a “plainly incompetent” manner. Wesby, 138 S. Ct. at 589 (citation

No. 21-6028 Pleasant View Baptist Church, et al. v. Beshear Page 25

omitted); see Elim Romanian Pentecostal Church v. Pritzker, 22 F.4th 701, 703 (7th Cir. 2022)

(per curiam). That fact forecloses the Schools’ damages claim. See Wesby, 138 S. Ct. at 589–

90.

* * *

All of this leaves the Schools’ remaining claims. They also allege that the Governor

violated the Fourteenth Amendment right of parents to give their children the education of their

choice and the First Amendment right of association. I agree with my colleagues that the

Schools’ three pages of analysis on these claims do not overcome the Governor’s qualified

immunity. Given the limited briefing, though, I would not opine on the merits. I would again

hold only that the Governor did not violate clearly established law. See id.

For all of these reasons, I concur in the judgment.