Photo by Mwesigwa Joel on Unsplash
Rebekah Durham and Jacob Hoback, Associate Members, University of Cincinnati Law Review
COVID-19 safety restrictions have been a prominent subject of recent free exercise litigation. To reduce the spread of COVID, many governors and local officials have enacted policies that restrict the operation of activities where people typically gather. These restrictions have been vastly controversial, but the most contested restrictions have been those which allegedly violate the free exercise of religion, specifically house of worship closures. Under Employment Division v. Smith, laws that are neutrally and generally applicable are presumably constitutional. However, laws that are ostensibly neutral and generally applicable but nevertheless allow secular conduct, but not religious conduct, are presumably unconstitutional.
The key issue in COVID free exercise litigation has not been whether the government has the authority to restrict religiously-motivated conduct, but whether the government has discriminated against religious conduct by allowing similar secular conduct. For example, in New York, Governor Andrew Cuomo imposed a restriction that severely restricted houses of worship yet allowed secular businesses to operate normally. Consequently, the Supreme Court held that Governor Cuomo’s restriction was unconstitutional.
Orders that close houses of worship have not been the only contested orders under the Free Exercise Clause. In Danville Christian Academy v. Beshear, Kentucky Governor Andrew Beshear issued an executive order that closed all primary and secondary schools. Since the order applied to both secular and religious schools, the Sixth Circuit held that the Kentucky restriction was neutral and generally applicable, explaining that courts should look “not [to] whether religious services are alone in a disfavored category, but why they are in the disfavored category to begin with.” The plaintiffs then appealed to the Supreme Court, but the Court declined to rule on the merits of the case since the order would soon no longer be in effect.  However, the Supreme Court has never specifically defined what the requirement for neutrality and general applicability means under Smith. Consequently, there is still room for debate about how narrowly Smith should be applied.
This Article presents a debate between University of Cincinnati Law Review members Rebekah Durham and Jacob Hoback about whether the Sixth Circuit was right in Danville. First, Durham explains the background of free exercise jurisprudence. Second, Hoback explains the two COVID cases in more detail. Finally, Durham argues that the Sixth Circuit erred in its decision, while Hoback argues that the court’s decision was correct.
II. Framework of Free Exercise Claims
The First Amendment to the Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Constitutional protection of religious freedom was based for many years on the principle that a law imposing a burden on the free exercise of religion must withstand strict scrutiny in order to be constitutional. In practice, this meant that if a plaintiff could show a particular law was punishing her for freely exercising her religion, the state would then have to prove that the law in question was the least restrictive law possible to achieve whatever goal the law was meant to accomplish. If the state could not show that the law was necessary to serve a compelling state interest, then a court would find it unconstitutional. Strict scrutiny is a high bar, and it is difficult for the state to defend a law subjected to that standard.
A. Employment Division v. Smith
The 1990 case Employment Division v. Smith redefined everything about free exercise jurisprudence in the United States. There, two employees at a drug rehabilitation center were fired for consuming peyote as part of a ceremony at their Native American church. After they were fired, the two individuals were denied unemployment benefits by the Employment Division of the State of Oregon because they had been dismissed for work-related “misconduct.” Accordingly, they brought a lawsuit against the State of Oregon alleging a violation of their right to free exercise of religion.
The Supreme Court sided with the State of Oregon, holding that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability.’” Instead of applying the high standard of strict scrutiny, the Smith Court determined that neutral and generally applicable laws do not need to be justified by a compelling state interest to be constitutional, regardless of the burden placed on religion.
B. Church of the Lukumi Babalu Aye v. City of Hialeah
While Smith removed the “compelling state interest” requirement to uphold the constitutionality of neutral and generally applicable laws, it did not guarantee a victory for the state. This was demonstrated two years after Smith in a case called Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. In this case, members of the Santeria religion, which regularly practiced ritual animal sacrifice, sought to establish a church in the city of Hialeah, Florida. Appalled by the idea of ritualistic animal killings being performed regularly in the middle of their town, the city council members quickly passed a number of ordinances that criminalized the unnecessary or cruel killing of an animal.
Although the Hialeah ordinances made no mention of the Santeria church and ostensibly banned all “unnecessary” animal killings, the Supreme Court found that the ordinances specifically targeted religiously motivated conduct. Rather than being neutral and generally applicable, the ordinances were essentially a broad restriction on killing animals with an exception for almost every conceivable secular purpose, including food consumption, euthanasia, and pest control. Writing for the majority, Justice Kennedy criticized the ordinances’ attempt to disguise its true intent with generalized language, and he concluded that “in circumstances in which individualized exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.’” Essentially, with exemptions for everything except the Santeria church’s religiously motivated animal sacrifice, the ordinances were clearly designed to single out religion. Therefore, even a law that appears non-discriminatory on its face may not be neutral and generally applicable under Smith in practice.
III. The COVID-19 Cases
November was an eventful month for COVID free exercise litigation. As COVID cases exponentially increased, so too did the safety precautions. Specifically, state governments issued precautions that restricted the operation of certain religious conduct. As a result, followers of several faiths challenged the restrictions. Two of the most prominent of those cases so far were Roman Catholic Diocese of Brooklyn v. Cuomo and Danville Christian Academy v. Beshear.
A. Roman Catholic Diocese of Brooklyn v. Cuomo
In November, New York Governor Andrew Cuomo issued an executive order that restricted gatherings at religious services. Specifically, in areas with severely high amounts of infections (red zones), the order restricted attendance to no more than 10 persons. Also, in areas with fewer cases (orange zones), the order restricted attendance to no more than 25 persons. Nevertheless, the governor did not impose the same restrictions on similar secular conduct, such as “acupuncture facilities, campgrounds, and garages.” Moreover, in orange zones, even non-essential businesses were permitted to have an unlimited amount of people. Consequently, both the Roman Catholic Diocese of Brooklyn and Agudath Israel of America challenged the restrictions, arguing that they violated the Free Exercise Clause.
The Supreme Court held that the regulations were not neutral and generally applicable. The Court reasoned that the categorizations that disparately impacted religions “lead to troubling results.” Moreover, the Court relied on a health department official’s testimony that one particular large store in Brooklyn could “literally have hundreds of people shopping there on any given day.” Accordingly, the Court concluded that the executive order was not neutral and generally applicable because it allowed large gatherings in stores but did not allow more than 10 to 25 people in a church. Therefore, the Court held that the restriction was unconstitutional.
B. Danville Christian Academy, Inc. v. Beshear
In November, Governor Andrew Beshear of Kentucky issued an executive order that prohibited in-person instruction for primary and secondary schools, both secular and religious. Shortly after, members of the Danville Christian Academy filed a lawsuit arguing that the order, among other things, violated their right to freely exercise their religion since it closed secular and religious schools but allowed gyms, theaters, and malls to remain open.
While the Sixth Circuit acknowledged that the plaintiffs were motivated by a “sincerely held religious belief,” the court nevertheless found the order neutral and generally applicable because it closed both secular and religious schools. Moreover, the court explained that in determining whether a law is neutral and generally applicable, courts must look at how the law treats secular conduct in the same category, not just whether the law allowed secular exemptions overall, such as gyms, malls, and theaters. Accordingly, since religious schools were in the same category as secular schools, the burden placed on the religious schools would be merely incidental. Therefore, the Sixth Circuit held that the order was constitutional.
Danville presents a question in free exercise law that has not yet been answered by the Supreme Court. Specifically, the issue is how the court should analyze a law that provides exceptions for certain secular conduct, but not religious conduct. Under Smith, a neutral and generally applicable law is presumably constitutional while a law that is not neutral and generally applicable must survive strict scrutiny, and thus most free exercise challenges turn on whether the law in question is actually neutral and generally applicable. But when an otherwise neutral law, such as the restrictions on gathering that states have enacted due to COVID, provides greater exceptions for secular conduct than it does for religious conduct, the court must decide whether the law is truly “neutral and generally applicable.” In this Section, Durham argues that a law restricting religious activity is not neutral and generally applicable simply because the most similar secular activity was also restricted. Next, Hoback argues that the mere presence of a secular exemption should not trigger strict scrutiny.
A. Durham: In Opposition to Danville
The Sixth Circuit failed to analyze the closure of Kentucky’s religious schools in the manner required by the Supreme Court’s recent COVID-related ruling in Brooklyn. When evaluating a religious discrimination claim, the court must compare a law’s impact on religious practice with its impact on secular activities. The issue is the scope of which secular activities are considered by the court in its comparison. In Danville, the Sixth Circuit compared only religious K-12 schools and public K-12 schools. This narrow comparison is inconsistent with how the Supreme Court has applied Smith in past cases. An analysis of the restrictions placed on secular activities more generally would have been more consistent with the Supreme Court’s past reasoning and would better protect the free exercise of religion.
By looking at only one other comparable secular activity, K-12 schools, the court made the dangerous assumption that a law that substantially burdens religious activity is neutral and generally applicable simply because the most similar secular activity was also restricted. Kentucky’s COVID restrictions fall more harshly on religious primary and secondary schools than they do on gyms, theaters, and offices (all of which can often be found inside a school). An honest reading of the Supreme Court’s opinion in Brooklyn requires an examination of a broader scope of comparable secular businesses and the exemptions granted to them than the Sixth Circuit conducted. Additionally, the Sixth Circuit was too narrow in its focus on religious schools as “schools,” to the exclusion of their more relevant status as religious organizations.
1. The Sixth Circuit’s Narrow Focus was Inconsistent with Lukumi and Brooklyn
The issue in Danville was whether the state’s restriction was a neutral and generally applicable law, the same issue the Court considered in both Lukumi and Brooklyn. In both cases, the Court looked beyond a narrow focus on the specific activity outlawed by the government. Instead, the Court considered the full scope of restrictions and exemptions granted to all comparable religious and secular activities.
In Lukumi, this full scope approach meant that the Court looked at all activities that involved killing of an animal. Like Kentucky’s COVID restrictions, the city ordinances in Lukumi involved a number of separate laws and ordinances, the effect of which the Court considered as a whole. Justice Kennedy’s majority opinion criticized the fact that the city made itself the ultimate arbiter of which animal killings were unnecessary and permitted categorical exceptions to those it considered important. Ultimately, the ordinances were invalidated because the large number of secular exemptions undermined the city’s argument that its ordinances were generally applicable. As Justice Kennedy noted, “in circumstances in which individualized exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.’”
If there was any doubt about how to apply Lukumi’s full scope approach to COVID litigation, the Supreme Court provided clarity in Brooklyn. The majority opinion, although brief, contains a recitation of all of the COVID restrictions placed on houses of worship juxtaposed against the many exemptions extended to various secular activities. In his concurrence, Justice Kavanaugh echoed the language of Lukumi’s broad scope approach: “once a State creates a favored class of businesses, … the State must justify why houses of worship are excluded from that favored class.”
The Sixth Circuit in Danville compared a restricted religious activity (religious K-12 schools) only to the nearest analogous secular activity (public K-12 schools). However, the Supreme Court did not base its analysis of neutrality and general applicability on a search for the closest comparable secular activity in either Lukumi or Brooklyn. Instead of opening the door to this type of narrow interpretation, the Court in both Lukumi and Brooklyn conducted a thorough analysis of not only the specific challenged restriction, but the effect all related laws have on religion.
2. Comparing Religious Schools with Only One Secular Activity is Demonstrably Illogical
The existence of one very close secular analog to which religious schools can be compared does not relieve the court of its duty to examine Kentucky’s COVID restrictions as a whole. If a law that burdens a religious practice can be justified as neutral by simply applying its restrictions to one other secular activity deemed “most comparable,” then even the most severe restrictions on religious freedom could be justified. Such an approach would make the constitutionality of government regulations dependent on wording rather than impact. If a government wished to outlaw a particular religious practice, all that would be required would be for the government to expand the wording of the law in a way that outlawed a similar secular practice. It is important to note that requiring the court to consider the law as a whole by no means exempts religious activities from truly neutral and generally applicable laws. Instead, it works to ensure that privilege is not given thoughtlessly or arbitrarily to secular practices.
Considering Governor Beshear’s COVID orders as a whole, the numerous and varied exemptions give an almost capricious preference to secular conduct. The order makes exceptions for a variety of secular activities that arguably are much more conducive to the spread of COVID than is Danville Christian Academy. Retail businesses in Kentucky are permitted to operate at 50% capacity, while gyms, offices, and bowling alleys may operate at 33% capacity. Weddings and funerals may proceed if limited to 25 people, while several college basketball games have been permitted an audience of between two and three thousand attendees. Most importantly, preschools and colleges in Kentucky remain open. The complete closure of religious schools should be compared to these hundreds of secular establishments being given the freedom to operate at partial capacity, in the same way that the Court in Brooklyn compared “houses of worship” with the full scope of activities affected by COVID restrictions. Instead of focusing on the narrow category of K-12 schools, the Sixth Circuit should have considered restrictions in Kentucky as a whole and found the order unconstitutional.
3. Allowing Religious Schools to Remain Open Would Not Impermissibly Favor Religion
Rather than examining other comparable secular activities, the Sixth Circuit focused on the fact that religious primary and secondary schools are in the same “category” as secular primary and secondary schools. But this is false. Religious schools fill a greater role than do secular schools, and to place them in the same category would be to place religious schools outside of the Free Exercise Clause’s protection altogether. The First Amendment does not prevent a state from closing secular schools or businesses on a whim for any arbitrary reason. Yet, the state does not have that power with regard to religious organizations and should not have that power over religious schools. Further, even within the narrow category of schools, Kentucky wishes to draw a distinction that favors preschools over primary schools, but it is unwilling to extend such a favor to religious schools, no matter what COVID precautions they may take.
Mr. Hoback argues that in the spirit of Smith, religious schools should not receive special status over secular schools. However, giving an exemption to religious schools does not afford preferential treatment to religion. Hoback’s argument fails to recognize the significance of the court’s factual finding that religious schools have a sincerely held religious belief that motivates their desire to remain open and offer in-person classes. Most importantly, this argument removes schools from the realm of “religious organizations” and places them entirely and exclusively in the category of K-12 schools. Kentucky’s religious schools are not asking for preferential treatment over all comparable secular activities; they are merely asking that their role as more than just knowledge delivery systems be recognized.
This is why the court’s acknowledgement of Danville Christian Academy’s sincerely held religious belief is critical. By agreeing with the plaintiffs that their desire to remain open and offer in-person classes was motivated by a sincerely held religious belief, the court placed religious schools firmly in the category of “religious organizations,” and it ought to have treated them as such.
B. Hoback: In Support of Danville
The ruling in Danville was a fair application of modern free exercise jurisprudence. To be certain, closing schools is not good policy. In fact, closing schools will cause significantly more harm than good, even withstanding the virus. Nevertheless, courts should not make policy decisions about whether a legislature should offer additional exemptions where no discrimination exists, and here, no discrimination existed, because the restriction applied equally to both secular and religious schools.
1. Special Treatment for Religiously-Motivated Conduct Undermines Smith
The Sixth Circuit was correct, because exempting religious schools, but not secular schools, would effectively give special treatment to religiously-motivated conduct. The message of Smith is clear—religiously-motivated conduct is not entitled to preferential treatment under the Free Exercise Clause. There, two Native Americans argued that a neutral and generally applicable law should not apply to them merely because their conduct was religiously-motivated. Nevertheless, the Court rejected this argument, explaining that the Free Exercise Clause does not require the government to extend exemptions to individuals with religiously-motivated conduct under neutral and generally applicable laws. Accordingly, affording a particular privilege to religious schools but not secular schools would significantly undermine Smith.
Although the Court ruled against the restrictions in Brooklyn, the religious observers did not receive special treatment. There, even many non-essential businesses were treated more favorably than religious observers. Therefore, by striking down the order, the Court did not give preferential treatment to religion. Instead, it merely gave houses of worship the same treatment as secular businesses.
A favorable ruling for the plaintiffs in Danville would have produced different implications than the favorable ruling for the plaintiffs by the Supreme Court in Brooklyn. When reviewing discrimination, courts should look at the most analogous secular exemption to determine whether the courts should extend the same exemption to religiously-motivated conduct. In Brooklyn, there were no “secular churches.” Consequently, the Court could only look at how the next-closest secular conduct was treated, and the groups that were most analogous to churches—theaters, funeral homes, concert halls—were treated more favorably. On the other hand, the most analogous secular conduct to attending religious schools—attending secular schools—was treated equally in Danville. Accordingly, unlike in Brooklyn, ruling for the plaintiffs in Danville would have treated religiously-motivated conduct not as equal to secular conduct but rather, superior. Therefore, allowing religious schools to reopen but not secular schools would have given preferential treatment to religion, in violation of Smith.
2. A Favorable Ruling for the Plaintiffs in Danville Would Have Been Incompatible with Lukumi
The facts in Danville and Lukumi are seemingly somewhat similar, but there is an important distinction. In Lukumi, there were exemptions that undermined the legislative interest in passing the statute. Similarly, the Kentucky restriction excluding gyms, malls, and theaters undermined its interest in slowing the spread of COVID. Nevertheless, an important factual distinction between the cases remains. Justice Kennedy explained that the Lukumi ordinances were not neutral and generally applicable since they were passed because the law would prohibit the Santerians from observing their religion. In other words, the government did not pass the law merely in spite of the fact that it would prohibit Santerians from practicing their religion.
The opposite occurred in Danville. Governor Beshear probably did not sign the order as a means to substantially burden religious schools. It is much more reasonable to conclude that the governor closed religious schools to achieve a common good rather than discriminate against religious observers. For context, in Kentucky, there are almost five times the number of secular schools as there are religious schools. Accordingly, the Governor probably had a larger interest in mind other than merely restricting religious learning, and here, it was to slow the spread of COVID.
3. Lawmakers Should Be Able to Weigh Secular Interests
Exempting secular conduct but not religious conduct does not always show discriminatory intent. The government has a plethora of interests that it attempts to satisfy, and sometimes, laws will further one interest but hinder another. Thus, the legislature must allow exemptions to satisfy both interests. To be certain, both in-person education and those secular activities not included in the order would contribute to the spread of COVID. However, Kentucky apparently has an interest in opening gyms, malls, and theaters (probably an economic one). That the government prohibited both secular and religious education simultaneously is evidence that the exemptions were meant to further another secular interest and not to discriminate against religion. Despite how misplaced the interests might seem, they are likely legitimate, and courts should show deference to how a government wants to prioritize its interests, as long as the means themselves are not discriminatory. And if the people find fault with the way that the government prioritizes its interests, they should use the political process—not the courts—to reorganize those priorities.
Certain questions regarding the interpretation of Smith have yet to be answered. As in many free exercise cases, the constitutionality of Kentucky’s closure of K-12 schools is contingent on whether the Governor’s order was a neutral and generally applicable law. For Durham, the Kentucky restrictions were not generally applicable, since they closed religious schools but allowed malls and gyms to remain open. On the other hand, for Hoback, since the order applied to both secular and religious schools, it was neutral and generally applicable. Although this question regarding the scope of Smith has not yet been directly addressed by the Supreme Court, it is likely that the Court will provide clarity on the issue when it decides Fulton v. City of Philadelphia later this term. The entire country will benefit from greater insight from the Court as to when a law is neutral and generally applicable under Smith.
 For purposes of this Article, see e.g., Kevin Wheatley, Gov. Beshear orders public, private schools to close classrooms starting Monday, WDRB (Nov. 18, 2020), https://perma.cc/SN2Z-STF2.
 Employment Div. v. Smith, 494 U.S. 872, 879 (1990).
 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537 (1993).
 Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. at 3 (2020).
 Id. at 4-5.
 See supra, note 6.
 Danville Christian Academy, Inc. v. Beshear, No. 20-6341 at *4-5 (6th Cir. 2020) (quoting Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2614, (2020) (Mem.) (Kavanaugh, J., dissenting)).
 See Danville Christian Academy, Inc. v. Beshear, 529 U.S. ____ (2020).
 U.S. Const. amend. I. (incorporated against the states in Cantwell v. Conn., 310 U.S. 296, 303 (1940)).
 See Sherbert v. Verner, 374 U.S. 398 (1963).
 Smith, 494 U.S. 872.
 Id. at 874.
 Id. at 879.
 Id. at 885.
 Lukumi, 508 U.S. 520.
 Id. at 525-26.
 Id. at 526.
 Id. at 535.
 Id. at 543.
 Id. at 537 (quoting Smith, 494 U.S. at 884).
 The plaintiffs in Brooklyn were both Catholic and Jewish organizations. Moreover, the Muslim Public Affairs Council filed an amicus brief in the lawsuit. Finally, the plaintiffs in Danville were nondenominational Christians.
 Brooklyn, 592 U.S. at 1 (2020).
 Id. at 3.
 Id. at 3-4.
 Id. at 3.
 Id. at 2.
 Danville, Inc. v. Beshear, No. 20-6341 at *2.
 Id. at *3.
 Id. at *4.
 Id. at *5.
 Id. at 3.
 See Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2605 (2020) (“Under the Free Exercise Clause, restrictions on religious exercise that are not ‘neutral and of general applicability’ must survive strict scrutiny.”).
 Lukumi, 508 U.S. at 544.
 Id. at 540.
 Id. at 544.
 Id. at 537 (quoting Smith, 494 U.S. at 884).
 Brooklyn, 592 U.S. at 1-2.
 Id. at 3 (2020) (Kavanaugh, J., concurring).
 Andy Beshear, Executive Order 2020-968 (Nov. 18, 2020) https://govsite-assets.s3.amazonaws.com/2DvDzWrTTSWZoF6qpMFA_2020-7-22%20-%20Healthy%20at%20Work%20Reqs%20-%20Retail%20-%20Final%20Version%203.1.pdf.
 Game Information, Morehead State Eagles vs Kentucky Wildcats (Nov. 25, 2020) https://www.espn.com/mens-college-basketball/game?gameId=401258857; Game Information, Evansville Purple Aces vs Louisville Cardinals (Nov. 25, 2020) https://www.espn.com/mens-college-basketball/game?gameId=401257660
 Andy Beshear, Executive Order 2020-969 (Nov. 18, 2020) https://governor.ky.gov/attachments/20201118_Executive-Order_2020-969_State-of-Emergency.pdf
 Ky. ex rel. Danville Christian Acad., Inc. v. Beshear, No. 20-6341, 2020 U.S. App. LEXIS 37413, at *7-8 (6th Cir. Nov. 29, 2020).
 Danville Christian Acad. v. Beshear, No. 3:20-cv-00075-GFVT, at *10 (E.D. Ky. Nov. 25, 2020).
 Smith, 494 U.S. at 879 (“They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning.”).
 Brooklyn, 592 U.S. at 2.
 Lukumi, 508 U.S. at 540.
 Kentucky High Schools, High-Schools.com, https://perma.cc/M536-WSJ2 (last visited Dec. 19, 2020).