RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 20a0392p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`MONCLOVA CHRISTIAN ACADEMY; ST. JOHN’S JESUIT
`HIGH SCHOOL & ACADEMY; EMMANUEL CHRISTIAN
`SCHOOL; CITIZENS FOR COMMUNITY VALUES dba Ohio
`Christian Education Network,
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`Plaintiffs-Appellants,
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`v.
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`TOLEDO-LUCAS COUNTY HEALTH DEPARTMENT,
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`Defendant-Appellee.
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`No. 20-4300
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`On Motion for Preliminary Injunction Pending Appeal.
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`United States District Court for the Northern District of Ohio at Toledo;
`No. 3:20-cv-02720—Jeffrey James Helmick, District Judge.
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`Decided and Filed: December 31, 2020
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`Before: KETHLEDGE, BUSH, and NALBANDIAN, Circuit Judges.
`_________________
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`COUNSEL
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`ON MOTION AND REPLY: Michael A. Roberts, Brian W. Fox, GRAYDON HEAD &
`RITCHEY LLP, Cincinnati, Ohio, for Appellants. ON RESPONSE: Kevin A. Pituch, John A.
`Borell, Evy M. Jarrett, LUCAS COUNTY PROSECUTOR’S OFFICE, Toledo, Ohio, for
`Appellee. ON BRIEF: Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY
`GENERAL, Columbus, Ohio, for Amicus Curiae.
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`_________________
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`ORDER
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`_________________
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`On November 25, 2020, the defendant in this case, the Toledo-Lucas County Health
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`Department, issued a resolution closing every school in the county—public, private, and more to
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`No. 20-4300
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`Monclova Christian Acad. v. Toledo-Lucas Cnty. Health Dep’t
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`Page 2
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`the point here, parochial—for grades 7-12, effective December 4. The shutdown’s purpose was
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`to slow the spread of COVID-19. Yet—in the same county—gyms, tanning salons, office
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`buildings, and a large casino have remained open. The plaintiffs here are nine Christian schools
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`(three suing in their own names, another six as part of a coalition) who argue that the closure of
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`their schools, when measured against the more favorable treatment afforded these secular actors,
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`amounts to a prohibition of religious exercise in violation of the First Amendment. The district
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`court denied the plaintiffs’ motion to enjoin the resolution as applied to their schools, reasoning
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`that it was a neutral law of general application, as defined by the Supreme Court’s precedents.
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`We respectfully disagree with that determination and grant the plaintiffs’ motion for an
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`injunction pending appeal.
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`By way of background, nobody disputes that, before the December 4 shutdown, the
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`plaintiff schools employed “strict social distancing and hygiene standards,” which included the
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`use of “thermal temperature scanners” and plexiglass dividers, along with spacing desks at
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`least six feet apart and a mandate that everyone wear masks at all times. Complaint ¶¶ 16, 31-34,
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`43-45, 55-60. Moreover, as the Department itself stated in its resolution closing the schools,
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`“little in-school transmission has been documented.” But the Department closed all the schools
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`in its jurisdiction anyway, on the ground that “[c]ommunity spread conditions continue to worsen
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`in Lucas County[.]” Specifically, the Department issued Resolution No. 2020.11.189, which
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`ordered every school in the county, “for Grades 7-12 (or 9 to 12 depending on school
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`configuration)[,]” to close from December 4, 2020 to “January 11, 2021 at 8:00 am.”
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`Plaintiffs brought this suit on December 7. A week later, the district court denied the
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`plaintiffs’ motion for a temporary restraining order. On December 16, the district court denied
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`the plaintiffs’ motion for a preliminary injunction. The plaintiffs then brought this appeal, which
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`the Ohio Attorney General supports as amicus curiae. We have jurisdiction under 28 U.S.C.
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`§ 1292(a)(1).
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`We consider four factors when deciding whether to grant an injunction pending appeal:
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`(1) whether the applicant is likely to succeed on the merits of the appeal; (2) whether the
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`applicant will be irreparably harmed absent the injunction; (3) whether the injunction will injure
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`the other parties; and (4) whether the public interest favors an injunction. Roberts v. Neace,
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`No. 20-4300
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`Monclova Christian Acad. v. Toledo-Lucas Cnty. Health Dep’t
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`Page 3
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`958 F.3d 409, 413 (6th Cir. 2020) (per curiam). Here, we agree with the district court that the
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`dispositive issue is legal, namely whether the Resolution violates the plaintiffs’ First Amendment
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`right of free exercise of religion. We review the district court’s decision on that issue de novo.
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`“The Free Exercise Clause protects religious observers against unequal treatment[.]”
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`Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542 (1993) (internal
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`quotation marks and alteration omitted). To that end, a “law burdening religious practice that is
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`not neutral or not of general application must undergo the most rigorous of scrutiny.” Id. at 546.
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`Here, the Department suggests that the Resolution’s closure of the plaintiffs’ schools does not
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`burden their religious practice at all, because the Resolution provides that “[s]chools may open to
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`hold religious educational classes or religious ceremonies.” That proviso is evidence of the
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`Resolution’s neutrality, and indeed no one argues that the Department has targeted the plaintiffs’
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`schools or acted with animus toward religion here. But the plaintiffs argue that the exercise of
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`their faith is not so neatly compartmentalized. To the contrary, they say, their faith pervades
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`each day of in-person schooling. “Throughout each school day and class,” for example,
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`Monclova Christian Academy “makes every effort to point students to a dependency on Christ in
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`every situation of life, whether that situation is intellectual or interpersonal.” Complaint ¶ 27.
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`At St. John’s Jesuit High School and Academy, to cite another example, “[m]ost class periods
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`begin with prayer or prayer intentions,” and “Catholic social teaching is interwoven into many
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`secular subjects[.]” Id. ¶ 40. And the plaintiffs emphasize that “a communal in-person
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`environment” is critical to the exercise of their faith. Complaint ¶¶ 28, 38, 53. We have no basis
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`to second-guess these representations. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682,
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`724-25 (2014). The Department’s closure of the plaintiffs’ schools therefore burdens their
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`religious practice.
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`Next comes whether the Resolution is “of general application.” Lukumi, 508 U.S. at 546.
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`A rule of general application, in this sense, is one that restricts religious conduct the same way
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`that “analogous non-religious conduct” is restricted. Id. That is why the Free Exercise Clause
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`does not guarantee better treatment for religious actors than for secular ones; instead, the Clause
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`“prohibits government officials from treating religious exercises worse than comparable secular
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`No. 20-4300
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`Monclova Christian Acad. v. Toledo-Lucas Cnty. Health Dep’t
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`Page 4
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`activities[.]” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 69 (2020) (Gorsuch,
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`J. concurring).
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`Whether conduct is analogous (or “comparable”) for purposes of this rule does not
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`depend on whether the religious and secular conduct involve similar forms of activity. Instead,
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`comparability is measured against the interests the State offers in support of its restrictions on
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`conduct. Specifically, comparability depends on whether the secular conduct “endangers these
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`interests in a similar or greater degree than” the religious conduct does. Lukumi, 508 U.S. at 543.
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`In Cuomo, for example, the Court said that activities at “acupuncture facilities, camp grounds,
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`garages,” and retail stores were comparable to “attendance at houses of worship”—precisely
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`because that secular conduct presented a “more serious health risk” than the religious conduct
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`did. 141 S. Ct. at 66-67. Mitigation of that risk, of course, was the State’s asserted interest in
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`support of its restrictions on attendance at religious services; the State did not extend those
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`restrictions to comparable secular conduct; and thus, the Court held, “the challenged restrictions”
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`were not “of ‘general applicability[.]’” Id. at 67 (quoting Lukumi, 508 U.S. at 546). It followed
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`as a matter of course that the restrictions were invalid.
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`We therefore consider whether the Resolution here treats the plaintiffs’ schools less
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`favorably than it does “comparable secular facilities.” Cuomo, 141 S. Ct at 66. As an initial
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`matter, the Department suggests that, under our recent decision in Kentucky ex. rel. Danville
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`Christian Academy, Inc. v. Beshear, 981 F.3d 505 (6th Cir. 2020), the only “secular facilities”
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`we may consider for this purpose are other schools. That case, like this one, involved an order
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`closing “all public and private schools” in the relevant jurisdiction. And we have no quarrel with
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`the conclusion in Beshear that the order there—considered solely within its four corners—did
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`not discriminate against Danville Christian Academy in violation of the Free Exercise Clause.
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`Id. at 509. But our opinion there said nothing about the question that the plaintiffs present here:
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`namely, whether an order closing public and parochial schools violates the Clause if it leaves
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`other comparable secular actors less restricted than the closed parochial schools. Meanwhile,
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`when Danville Christian Academy sought review of our decision in the Supreme Court, a
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`majority of the justices denied review largely because of “the timing and the impending
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`expiration” of the challenged order, and invited Danville to seek “a new preliminary injunction if
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`No. 20-4300
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`Page 5
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`the Governor” renewed it; and two justices said that “[w]hether discrimination is spread across
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`two orders or embodied in one makes no difference; the Constitution cannot be evaded merely
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`by multiplying the decrees.” Danville Christian Academy, Inc. v. Beshear, 2020 WL 7395433, at
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`*1; id. at *2 (Gorsuch, J., dissenting). Respectfully, therefore, we will consider the broader
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`question presented here.
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`That question is whether we may consider only the secular actors (namely, other schools)
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`regulated by the specific provision here in determining whether the plaintiffs’ schools are treated
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`less favorably than comparable secular actors are. We find no support for that proposition in the
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`relevant Supreme Court caselaw. The Free Exercise Clause, as noted above, “protects religious
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`observers against unequal treatment[.]” Lukumi, 508 U.S. at 542. That guarantee transcends the
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`bounds between particular ordinances, statutes, and decrees. In Lukumi itself, for example, the
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`Court said that “the four substantive ordinances [at issue] may be treated as a group for neutrality
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`purposes.” Id. at 540. True, the issue as to neutrality there was whether the City had targeted the
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`plaintiff’s practice of ritual animal sacrifice; but a similarly broad inquiry could just as easily
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`reveal disparate treatment of religious and secular conduct for purposes of the “general
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`application” inquiry. And the Court’s test for identifying comparable secular conduct for
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`purposes of that inquiry routinely identifies as comparable, as shown above, activities that are in
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`other ways very different—attendance at church services and patronizing “acupuncture
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`facilities[,]” for example. Cuomo, 141 S. Ct. at 66-67. Those activities might therefore be
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`regulated by different statutes or decrees.
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`A myopic focus solely on the provision that regulates religious conduct would thus allow
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`for easy evasion of the Free Exercise guarantee of equal treatment. That one order governed all
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`the different conduct at issue in Cuomo, for example, was a mere fortuity. Suppose instead that
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`the Governor in one order imposed a 25-person limit on larger facilities like houses of worship
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`and “microelectronics” plants, and in another order allowed the very same “essential” businesses
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`to “admit as many people as they wish.” Id. The former order might impose uniform burdens so
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`far as it went, but the Court’s reasoning provides zero reason to think the case would have come
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`out differently. Conversely—in Employment Division v. Smith, 494 U.S. 872 (1990)—suppose
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`that, rather than ban the possession of “Schedule I” drugs across the board, Oregon law had
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`No. 20-4300
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`Monclova Christian Acad. v. Toledo-Lucas Cnty. Health Dep’t
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`Page 6
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`banned the possession of peyote but imposed no restrictions at all on the possession of other
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`hallucinogenic drugs. Considered solely within its four corners, that provision would impose its
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`burdens equally, because nobody could possess peyote. But viewed in the context of state law as
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`a whole, the provision would bar members of the “Native American Church” from using peyote
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`“for sacramental purposes[,]” id. at 874, while allowing secular actors to use comparable
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`hallucinogenic drugs for recreational purposes. That “unequal treatment” would violate the Free
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`Exercise Clause, assuming the peyote-only ban failed strict scrutiny. Lukumi, 508 U.S. at 542.
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`The myopic approach would thus lead to results plainly contrary to the Court’s caselaw. The
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`relevant inquiry should therefore simply be whether the “government, in pursuit of legitimate
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`interests,” has imposed greater burdens on religious conduct than on analogous secular conduct.
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`Id. at 543.
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`That inquiry leads directly to the conclusion that the Resolution’s restrictions are not of
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`“general applicability[.]” Id. at 546. In Lucas County, the plaintiffs’ schools are closed, while
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`gyms, tanning salons, office buildings, and the Hollywood Casino remain open. Cuomo
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`makes clear that those secular facilities are “comparable” for purposes of spreading COVID-19.
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`141 S. Ct. at 66; see also, e.g., Roberts, 958 F.3d at 414. The Resolution’s restrictions therefore
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`impose greater burdens on the plaintiffs’ conduct than on secular conduct.
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`The Department offers one final argument to the contrary: that under Ohio law the
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`Department lacks authority to close facilities other than schools. See Ohio Rev. Code § 3707.26.
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`But the Department itself acknowledges that it is a “political subdivision” whose authority is
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`delegated to it by the State. Indeed, under Ohio law the Department is a state agency that acts as
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`an “administrative arm[] of the Ohio Department of Health.” Jonson’s Markets, Inc. v. New
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`Carlisle Dep’t of Health, 567 N.E.2d 1018, 1023-24 (Ohio 1991). And the Ohio Department of
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`Health has chosen to leave open the secular facilities described above. Measured against the
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`State’s restrictions as a whole, therefore, the Resolution’s restrictions are not of general
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`application.
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`The Department’s closure of plaintiffs’ schools is thus subject to strict scrutiny. Cuomo,
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`141 S. Ct. at 67. The Department does not argue that its action can survive that scrutiny. Nor do
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`we see any reason why it would. The closure of the plaintiffs’ schools therefore violates their
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`No. 20-4300
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`Monclova Christian Acad. v. Toledo-Lucas Cnty. Health Dep’t
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`Page 7
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`rights under the Free Exercise Clause, which means they should succeed on the merits of their
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`appeal. Finally, “[p]reliminary injunctions in constitutional cases often turn on likelihood of
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`success on the merits, usually making it unnecessary to dwell on the remaining three factors.”
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`Roberts, 958 F.3d at 416. That is the situation here, again because the Department makes no
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`argument that it should prevail in light of those factors. We will therefore grant the plaintiffs’
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`motion.
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`* * *
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`The plaintiffs’ motion for an injunction pending appeal is granted. The Toledo-Lucas
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`County Health Department is enjoined, during the pendency of this appeal, from enforcing
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`Resolution No. 2020.11.189 or otherwise prohibiting in-person attendance at the plaintiffs’
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`schools.
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`ENTERED BY ORDER OF THE COURT
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`___________________________________
`Deborah S. Hunt, Clerk
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