Sixth Circuit Rules Religious Schools In Ohio County Remain Open If Stores Do During COVID-19 Pandemic

On Dec. 31, the Sixth Circuit granted an injunction in favor of a group of Christian schools challenging an ordinance in Toledo, Ohio, that sought to close all schools during the COVID-19 pandemic, in order to allegedly curb the spread of the disease. The appellate court ruled that the Christian schools could not be closed while comparable secular institutions remained open, lest the county sought to infringe upon the Constitution’s protection of the free exercise of religion.

The associated opinion explained that the county ordinance in Toledo-Lucas County shut down all schools, secular and religious, on Nov. 25, 2020, until the beginning of January 2021, regardless of evidence of disease spread within an individual school. However, the appellate panel summarily ruled that such a practice may be tolerated where only secular institutions were concerned, but failed to be universally allowable where claimed infringement of religion is concerned. In cases intertwined with such infringement, the court explained, the policy or law responsible must pass strict scrutiny — the government lockdown order must be narrowly tailored to further a compelling government interest — in order to be constitutionally permissible.

The defendant — the county of Toledo-Lucas — argued that strict scrutiny was not the test, as the lockdown order was one of general applicability given that it treated all schools equally irrespective of religious affiliation. The court explained that the defendant misinterpreted the standard, as a lockdown order generally is not applicable by merely treating all similar institutions the same e.g. all schools are shut down at the same time. The proper analysis is whether the state interests at hand treat all institutions relevant to those interests the same or similarly. 

The court elaborated by explaining that the state interest being furthered by the lockdown was preventing the spread of the COVID-19 pandemic. This means that the court must examine whether secular institutions remaining open — in this case stores, tanning salons, and a casino — are allowed to remain open because the evidence presented shows that religious schools are responsible for furthering the spread of COVID-19 more than the secular institutions at issue. The appellate panel additionally pointed out that this means examining the spread of the COVID-19 pandemic at the religious schools versus the spread of COVID-19 at all open secular institutions, not just secular schools. 

The court stopped short of stating whether the defendant’s ordinance would pass strict scrutiny under the Free Exercise Clause of the Constitution. However, the court opined that it was unlikely, writing that “the (defendant) does not argue that its action can survive that scrutiny. Nor do we see any reason why it would.” The court concluded by issuing the plaintiffs a preliminary injunction — pending full review of the case on the merits — that enjoined the defendant from taking any action that “prohibited in-person attendance at the plaintiffs’ schools.”

The plaintiffs are represented by Graydon Head, & Ritchey