Last month, Kentucky's Attorney General issued Opinion OAG-20-13 (Aug. 19, 2020) concluding that state or local officials may not order the closure of religiously affiliated schools that comply with reasonable social distancing and hygiene guidelines during the COVID pandemic. The Opinion says in part:
Given the central importance of religious education to faith communities, any order by a state or local official to close a religiously affiliated school likely would “prohibit[] the free exercise” of religion in violation of the First and Fourteenth Amendments, especially if the government continues its arbitrary manner of picking and choosing which institutions must close and which may remain open to the public. U.S. Const. amends. I, XIV.
In addition, such an order likely would violate Kentucky’s Religious Freedom Restoration Act, KRS 446.350, which provides that the government may not “substantially burden” a sincerely held religious belief “unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.”...
Religiously affiliated schools in the Commonwealth have pledged to heed these expert recommendations, and guidance to wear face coverings, wash hands frequently, and maintain social distancing of six feet. For that reason, and considering that various other activities and gatherings may move forward—it is difficult to imagine how closing religiously affiliated schools could pass Constitutional or statutory muster....
[Thanks to Eugene Volokh via EpidemicLaw for the lead.]
