Amicus Curiae Brief — Danville Christian Academy, Inc., et al., Applicants v. Andy Beshear, Governor of Kentucky

No. 20A96

In the Supreme Court of the United States

DANVILLE CHRISTIAN ACADEMY, INC., COMMONWEALTH OF KENTUCKY, EX REL.

ATTORNEY GENERAL DANIEL CAMERON,

Applicants,

v.

ANDREW BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF KENTUCKY,

Respondent.

To the Honorable Brett M. Kavanaugh, Associate Justice of the United

States Supreme Court and Circuit Justice for the Sixth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE IN SUPPORT OF

APPLICANTS BY THE BECKET FUND FOR RELIGIOUS LIBERTY

ERIC RASSBACH

Counsel of Record

NICHOLAS R. REAVES

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Penn. Ave. NW

Suite 400

Washington, D.C. 20006

erassbach@becketlaw.org

Counsel for Amicus Curiae

The Becket Fund for Religious Liberty respectfully moves for leave to file a brief

amicus curiae in support of Applicants’ Emergency Application to Vacate the Sixth

Circuit’s Stay, without 10 days’ advance notice to the parties of Amicus’s intent to file

as ordinarily required.

In light of the expedited briefing schedule set by the Court, it was not feasible to

give 10 days’ notice, but Amicus was nevertheless able to obtain a position on the

motion from the parties. Applicants consent to the filing of the amicus brief.

Respondent has no objection to the filing of the amicus brief.

The Becket Fund for Religious Liberty is a non-profit, nonpartisan law firm

dedicated to protecting the free expression of all religious traditions. Becket has

represented agnostics, Buddhists, Christians, Hindus, Jews, Muslims, Santeros,

Sikhs, and Zoroastrians, among others, in lawsuits across the country. Becket has

also represented numerous prevailing religious parties in this Court. See, e.g.,

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012);

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Holt v. Hobbs, 574 U.S.

352 (2015); Zubik v. Burwell, 136 S. Ct. 1557 (2016); Our Lady of Guadalupe Sch. v.

Morrissey-Berru, 140 S. Ct. 2049 (2020); Little Sisters of the Poor v. Pennsylvania,

140 S. Ct. 2367 (2020).

Becket has also litigated cases before this and other courts concerning the

intersection of COVID-related restrictions and the free exercise of religion. See, e.g.,

Agudath Israel of Am. v. Cuomo, No. 20A90 (decided Nov. 25, 2020); Lebovits v.

Cuomo, 1:20-cv-00651-GLS-DJS (N.D.N.Y. filed Oct. 16, 2020) (challenge to

ii

restrictions on Jewish girls’ school located in Far Rockaway, Queens).

Amicus seeks to file this brief to bring to the Court’s attention the special place

of religious education in the jurisprudence of the Free Exercise Clause. In particular,

because the Governor’s actions interfere with the right of parents to direct “the

religious upbringing and education of their children,” Wisconsin v. Yoder, 406 U.S.

205, 213-214 (1972), strict scrutiny governs the outcome of this application, rather

than the general rule of Employment Division v. Smith, 494 U.S. 872, 881-882

(1990). The amicus brief thus includes relevant material not fully brought to the

attention of the Court by the parties. See Sup. Ct. R. 37.1.

For the foregoing reasons, proposed amicus respectfully requests that the Court

grant this unopposed motion to file the attached proposed amicus brief and accept it

in the format and at the time submitted.

Respectfully submitted.

/s/ Eric Rassbach

ERIC RASSBACH

Counsel of Record

NICHOLAS R. REAVES

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Penn. Ave. NW

Suite 400

Washington, D.C. 20006

erassbach@becketlaw.org

Counsel for Amicus Curiae

DECEMBER 2020

iii

No. 20A96

In the Supreme Court of the United States

DANVILLE CHRISTIAN ACADEMY, INC., COMMONWEALTH OF KENTUCKY, EX REL.

ATTORNEY GENERAL DANIEL CAMERON,

Applicants,

v.

ANDREW BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF KENTUCKY,

Respondent.

To the Honorable Brett M. Kavanaugh, Associate Justice of the United

States Supreme Court and Circuit Justice for the Sixth Circuit

BRIEF AMICUS CURIAE OF

THE BECKET FUND FOR RELIGIOUS LIBERTY

ERIC RASSBACH

Counsel of Record

NICHOLAS R. REAVES

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Penn. Ave. NW

Suite 400

Washington, D.C. 20006

erassbach@becketlaw.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................... iii

INTEREST OF THE AMICUS CURIAE .................................................................... 1

SUMMARY OF ARGUMENT...................................................................................... 2

ARGUMENT ................................................................................................................ 2

I. Yoder provides the rule of decision, not Smith. ............................................... 2

CONCLUSION ............................................................................................................. 7

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Agudath Israel of Am. v. Cuomo,

No. 20A90 (Nov. 25, 2020) ........................................................................................ 1

American Legion v. American Humanist Ass’n,

139 S. Ct. 2067 (2019) .............................................................................................. 6

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .................................................................................................. 1

Cantwell v. Connecticut,

310 U.S. 296 (1940) .................................................................................................. 4

Employment Division v. Smith,

494 U.S. 872 (1990) .............................................................................................. 2, 5

Espinoza v. Montana Dep’t of Revenue,

140 S. Ct. 2246 (2020) .............................................................................................. 5

Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal,

546 U.S. 418 (2006) .................................................................................................. 5

Griswold v. Connecticut,

381 U.S. 479 (1965) .................................................................................................. 4

Holt v. Hobbs,

574 U.S. 352 (2015) .................................................................................................. 1

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,

565 U.S. 171 (2012) .................................................................................................. 1

Lebovits v. Cuomo,

1:20-cv-01284 (N.D.N.Y. filed Oct. 16, 2020) ........................................................... 1

Little Sisters of the Poor v. Pennsylvania,

140 S. Ct. 2367 (2020) .............................................................................................. 1

Meyer v. Nebraska,

262 U.S. 390 (1923) .................................................................................................. 3

Our Lady of Guadalupe Sch. v. Morrissey-Berru,

140 S. Ct. 2049 (2020) .......................................................................................... 1, 6

iii

Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary,

268 U.S. 510 (1925) .............................................................................................. 3, 6

Roman Catholic Diocese of Brooklyn v. Cuomo,

No. 20A87 (Nov. 25, 2020) .................................................................................... 6, 7

West Va. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .................................................................................................. 6

Wisconsin v. Yoder,

406 U.S. 205 (1972) .........................................................................................passim

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) .................................................................................................. 6

Zubik v. Burwell,

136 S. Ct. 1557 (2016) .............................................................................................. 1

Other Authorities

1 William Blackstone, Commentaries on the Laws of England

(Edward Christian ed., 1793) ................................................................................... 3

iv

INTEREST OF THE AMICUS CURIAE1

The Becket Fund for Religious Liberty is a non-profit, nonpartisan law firm

dedicated to protecting the free expression of all religious traditions. Becket has

represented agnostics, Buddhists, Christians, Hindus, Jews, Muslims, Santeros,

Sikhs, and Zoroastrians, among others, in lawsuits across the country. Becket has

also represented numerous prevailing religious parties in this Court. See, e.g.,

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012);

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Holt v. Hobbs, 574 U.S. 352

(2015); Zubik v. Burwell, 136 S. Ct. 1557 (2016); Our Lady of Guadalupe Sch. v.

Morrissey-Berru, 140 S. Ct. 2049 (2020); Little Sisters of the Poor v. Pennsylvania, 140

S. Ct. 2367 (2020). Becket has also litigated cases before this and other courts

concerning the intersection of COVID-related restrictions and the free exercise of

religion. See, e.g., Agudath Israel of Am. v. Cuomo, No. 20A90 (decided Nov. 25, 2020);

Lebovits v. Cuomo, 1:20-cv-01284-GLS-DJS (N.D.N.Y. filed Oct. 16, 2020) (challenge

to restrictions on Jewish girls’ school located in Far Rockaway, Queens).

Amicus offers this brief to bring to the Court’s attention the special place of

religious education in the jurisprudence of the Free Exercise Clause. In particular,

because this case involves the right of parents to direct “the religious upbringing and

education of their children,” Wisconsin v. Yoder, 406 U.S. 205, 213-214 (1972), strict

No counsel for a party authored this brief in whole or in part, and no person other than amicus,

its members, or its counsel made a monetary contribution to fund the brief’s preparation or submission.

This brief has been submitted with an unopposed motion for leave to file it.

1

1

scrutiny governs the outcome of this application, rather than the general rule of

Employment Division v. Smith, 494 U.S. 872, 881-882 (1990).

SUMMARY OF ARGUMENT

Applicants have ably shown how Governor Beshear’s prohibition on religious K12 schools is neither neutral nor generally applicable under Employment Division v.

Smith. That movie theaters and horse tracks are open for business, but religious

schools cannot open, is reason enough to vacate the Sixth Circuit’s stay.

But this case is even easier than that. Because the Governor’s actions interfere

with the right of parents under the Free Exercise Clause to direct “the religious

upbringing and education of their children,” this case comes within the ambit of

Wisconsin v. Yoder, not the general rule of Smith. As Smith itself made clear, the

Yoder line of precedent—which stretches back to at least Meyer v. Nebraska in 1923—

governs cases concerning religious education. And, because the Governor has

prohibited religious schools from operating, under Yoder his restrictions are subject

to strict scrutiny, regardless of their neutrality or general applicability. The premise

of the Sixth Circuit’s decision to issue an extraordinary stay was thus wrong from the

very start, and the stay must therefore be vacated.

ARGUMENT

I. Yoder provides the rule of decision, not Smith.

The Governor’s prohibition on operating K-12 schools is subject to heightened

constitutional scrutiny because it grossly interferes with the right of Danville

Christian parents to direct “the religious upbringing and education of their children.”

Wisconsin v. Yoder, 406 U.S. 205, 213-214 (1972). Both before and after Yoder—and

2

in Smith itself—this Court has recognized that governmental interference with

religious education is subject to heightened scrutiny. And, because Governor Beshear

cannot hope to make a strict scrutiny showing, the Sixth Circuit’s stay must be

vacated.

1. For close to 100 years, this Court has explicitly recognized and protected the

right of parents to direct the education of their children. The early cases were decided

before the Religion Clauses were incorporated against the states. Meyer v. Nebraska

concerned parents penalized for sending their children to a Lutheran parochial

school, where the children learned the German language in violation of Nebraska

law. 262 U.S. 390, 397 (1923). In ruling against this regulation of a religious school,

the Court concluded that “[w]hile this court has not attempted to define with

exactness the liberty thus guaranteed * * * [w]ithout doubt, it denotes not merely

freedom from bodily restraint but also the right of the individual to * * * establish a

home and bring up children.”2 Id. at 399.

Similarly, in Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary,

the Court confronted an Oregon law that effectively outlawed private religious

education in the state, including for the Catholic school plaintiff. 268 U.S. 510 (1925).

The Court held that the law “unreasonably interfere[d] with the liberty of parents

and guardians to direct the upbringing and education of children under their control.”

This American tradition of protecting the right to religious education stands in stark contrast to

the religious establishment in England, where the laws fined parents for sending their children “to be

instructed, persuaded, or strengthened in the popish religion.” 1 William Blackstone, Commentaries

on the Laws of England 451 (Edward Christian ed., 1793). This was an exception to the general rule

that parents were charged with determining how to educate their children. See id. at 450 (“Yet in one

case, that of religion, they are under peculiar restrictions * * * .”)

2

3

Id. at 534-535. That was true even though the Oregon law was “expected to have

general application[.]” Id. at 535.

After the Free Exercise Clause was incorporated against the states in Cantwell v.

Connecticut, 310 U.S. 296 (1940), the Court began treating Meyer and Pierce as First

Amendment decisions. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 482 (1965)

(discussing Meyer and Pierce).

Yoder stands firmly in this tradition of protecting religious education, but, as it

came after incorporation, the Court relied on the Free Exercise Clause. In Yoder,

the Court vindicated the right of the Old Order Amish to educate their children in

continuous contact with their “community, physically and emotionally, during the

crucial and formative adolescent period of life,” 406 U.S. at 211—even when that

meant noncompliance with Wisconsin’s compulsory education laws. As the Court

explained, “the values of parental direction of the religious upbringing and

education of their children in their early and formative years have a high place in

our society.” Id. at 213-214. Where Amish parents sought to remove their children

from school before the age of 16, id. at 207, the Court reasoned that any “speculative

gain[s]” from an additional year or two of schooling could not “justify the severe

interference with religious freedom such additional compulsory attendance would

entail,” Id. at 227.

Yoder imposed heightened scrutiny on the government’s actions despite

acknowledging that universal education is certainly an important governmental

interest. Yet, “however highly we rank it,” the Court explained, this interest must be

4

weighed against the fundamental rights “specifically protected by the Free Exercise

Clause of the First Amendment, and the traditional interest of parents with respect

to the religious upbringing of their children.” Yoder, 406 U.S. at 214. And since “only

those interests of the highest order and those not otherwise served can overbalance

legitimate claims to the free exercise of religion,” the law could not be enforced. Id. at

215.

2. Employment Division v. Smith did not eliminate or even purport to eliminate

Yoder’s protective rule as applied to religious education. In fact, it expressly put to

one side claims regarding “the right of parents * * * to direct the education of their

children,” recognizing that these claims still receive heightened scrutiny. 494 U.S. at

881. In doing so, it expressly cited both Yoder and Pierce. Ibid.

This Court’s decisions since Smith have only reinforced the fact that Smith did

not claim to alter Yoder. For example, in Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, 546 U.S. 418, 431 (2006), this Court cited Yoder favorably,

explaining that the case “permitted an exemption for Amish children from a

compulsory school attendance law,” despite the State’s “paramount” interest in

education. And, just last Term, Espinoza reaffirmed as an “‘enduring American

tradition’ * * * the rights of parents to direct ‘the religious upbringing’ of their

children.” Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2261 (2020)

(quoting Yoder, 406 U.S. at 213-214). This provided the foundation for the Court’s

determination that Montana’s no-aid provision not only harmed religious schools, but

also “penalize[d]” the families who chose to send their children to those schools by

5

infringing on the constitutionally-protected parental “choice” of religious education.

Ibid. (citing Pierce, 268 U.S. at 534-535). As this Court explained, any restriction on

the free exercise of religious schools “burdens not only religious schools but also the

families whose children attend or hope to attend them.” Ibid.3

Protecting the parental right to educate one’s children in the faith also animated

last Term’s decision in Our Lady. Our Lady surveyed the importance of religious

education for numerous religious traditions and found that religious schools often

“expressly set themselves apart from public schools that they believe do not reflect

their values.” Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049,

2065 (2020). Protecting the freedom of religious schools to transmit the faith to the

next generation is a necessary prerequisite to ensuring that parents can select

religious schools that accurately preserve and pass on their deeply held religious

beliefs and values. Id. at 2064 (“[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.”). Indeed, religious education,

like religious worship, is “at the very heart” of what is protected by the First

Amendment. Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020 WL

6948354, at *3 (Nov. 25, 2020); Our Lady, 140 S. Ct. at 2065 (observing that many

Protestant churches “from the earliest settlements in this country, viewed education

See also Zelman v. Simmons-Harris, 536 U.S. 639, 680 n.5 (2002) (Thomas, J., concurring) (“This

Court has held that parents have the fundamental liberty to choose how and in what manner to

educate their children.”); American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019)

(Kavanaugh, J., concurring) (citing Yoder and West Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943),

as examples of how “[t]his Court fiercely protects the individual rights secured by the U.S.

Constitution”).

3

6

as a religious obligation”).

3. Given the Yoder rule governing cases involving the right of parents to direct the

religious education of their children, to decide the application this Court need not

delve into the now familiar, but nonetheless at times perplexing, question of “how

similar is similar enough?” Instead, this Court can go straight to the strict scrutiny

analysis.

Here, that strict scrutiny analysis is straightforward, because the Governor’s own

actions show that there are less restrictive alternatives the Governor has already

endorsed. For example, movie theaters—which even dissenters in Diocese of Brooklyn

viewed as close comparators “where people congregate in large groups”—are allowed

to admit 25 people. Diocese of Brooklyn, 2020 WL 6948354, at *13 (Sotomayor, J.,

dissenting); Application at 15. The Governor makes no effort to meet his strict

scrutiny burden; nor does he deny the treatment afforded to theaters is a less

restrictive alternative. Application at 12 n.9. As in Diocese of Brooklyn, “there are

many other less restrictive rules that could be adopted” to further the government’s

legitimate interest in combating COVID. Diocese of Brooklyn, 2020 WL 6948354, at

*2. That is enough to resolve the application.

CONCLUSION

This Court should vacate the stay issued by the Sixth Circuit.

7

Respectfully submitted.

/s/ Eric Rassbach

ERIC RASSBACH

Counsel of Record

NICHOLAS R. REAVES

THE BECKET FUND FOR RELIGIOUS LIBERTY

1919 Penn. Ave. NW

Suite 400

Washington, D.C. 20006

erassbach@becketlaw.org

Counsel for Amicus Curiae

DECEMBER 2020

8