APPEALS COURT UNANIMOUSLY RULES KENTUCKY GOVERNOR ANDY BESHEAR MUST ALLOW DRIVE-IN CHURCH SERVICES
BY HEATHER CLARK
republished below in full unedited for informational, educational and research
CINCINNATI (Christian News Network) — The Sixth Circuit Court of Appeals has unanimously ruled that Kentucky Gov. Andy Beshear must allow churches to hold drive-in services, partly siding with a church where troopers had placed violation notices on every car in the parking lot on Easter Sunday. The church had allowed members to either sit inside or stay in their car, providing both options. Beshear denies that his stay-at-home order applies to drive-in services, but the appeals court disagreed and noted that members were issued notices regardless of whether they went inside or remained in their vehicles.
The three judge panel, consisting of Judges Jeffrey Sutton, David McKeague and John Nalbandian, found that Beshear’s COVID ban on “mass gatherings” — including “faith-based” events — while sincere in its objective, does “not amount to the least restrictive way of regulating the churches.” Sutton and McKeague are Bush nominees and Nalbandian was nominated to the bench by President Trump.
“The governor’s actions substantially burden the congregants’ sincerely held religious practices — and plainly so,” they wrote. “Orders prohibiting religious gatherings, enforced by police officers telling congregants they violated a criminal law and by officers taking down license plate numbers, amount to a significant burden on worship gatherings.”
The judges stated that the order is discriminatory in that it seems to allow secular activities as long as social distancing is practiced, but does not grant the same allowances for church services.
“On the same Easter Sunday that police officers informed congregants they were violating criminal laws by sitting in their cars in a parking lot, hundreds of cars were parked in grocery store parking lots less than a mile from the church,” the court noted. “The orders permit big-lot parking for secular purposes, just not for religious purposes. All in all, the governor did not narrowly tailor the order’s impact on religious exercise.”
“Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave delivery woman but not with a stoic minister?” the panel also asked. “The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.”
On March 19, Gov. Beshear issued an order prohibiting “mass gatherings,” which “includ[ed] any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” It did not state any size allowances.
“Any individual that’s going to participate in a mass gathering of any type that we know about this weekend, we are going to record license plates and provide it to local health departments,” he said. “Local health departments are going to come to your door with an order for you to be quarantined for 14 days.”
“Understand that this is the only way that your decision doesn’t kill somebody else, that your decision doesn’t spread the coronavirus in your county and your community,” Beshear continued. “Your decision to go to a mass gathering doesn’t negate the sacrifice of every other house of worship — 99.99 percent that are choosing to do the right thing.”
On Easter, two Kentucky state troopers did indeed record the license plate or VIN numbers of the approximately 50 worshipers at Maryville Baptist Church in Hillview, and members received letters advising that they were consequently required to quarantine. Some attendees went inside the church and some remained in their vehicles and listened to the service via outdoor speakers.
“This vehicle’s presence at this location indicates that its occupants are present at a mass gathering prohibited by orders of the governor and the Cabinet for Health and Family Services,” the notices read in part.
“Employees of the local health department will be contacting those associated with this vehicle with self-quarantine documents, including an agreement requiring this vehicle’s occupants and anyone in the household to self-quarantine for 14 days.”
It also noted, “Please be advised that KRS 39A.990 makes it a Class A misdemeanor to violate an emergency order.”
The church and its pastor, Jack Roberts, soon sued Beshear, stating that an injunction was necessary as they “remain targets of governor Beshear’s enforcement threats.”
“Plaintiffs seek a TRO restraining enforcement against Plaintiffs of the various COVID-19 orders issued by Governor Beshear and other Commonwealth officials purporting to prohibit Plaintiffs, on pain of criminal sanctions and mandatory, household-wide quarantines … regardless of whether Plaintiffs meet or exceed the social distancing and hygiene guidelines pursuant to which the Commonwealth disparately and discriminatorily allows so-called ‘life-sustaining’ commercial and non-religious entities (e.g., beer, wine, and liquor stores, warehouse clubs, and supercenters) to accommodate large gatherings of persons without scrutiny or numerical limit.”
DISTRICT COURT DENIAL
On April 18, U.S. District Judge David Hale, nominated to the bench by then-President Barack Obama, ruled against Maryville Baptist Church, opining that Beshear’s order prohibiting “mass gatherings” does not discriminate against churches as it bans all mass gatherings.
Unlike the appeals court, he did not find that Beshear’s order prohibited drive-in services, noting that churches have alternatives: drive-in, online, or telephone meetings, or watching online or listening on the radio.
“[U]npersuasive is Plaintiffs’ contention that the orders violate their right to freely exercise their religion by discriminating against religious conduct. Again, the order temporarily prohibits ‘[a]ll mass gatherings,’ not merely religious gatherings,” Hale wrote. “Religious expression is not singled out. And further, contrary to Plaintiffs’ assertions, there are no identified exceptions to the prohibition on mass gatherings.”
He additionally rejected the argument that it is unfair to allow supercenters or liquor stores to remain open while churches may not meet in person, finding that shopping is rather a “transitory experience” while church is more akin to a communal gathering at a concert or restaurant.
“Plaintiffs seek to compare in-person attendance at church services with presence at a liquor store or ‘supercenter store.’ The latter, however, is a singular and transitory experience:individuals enter the store at various times to purchase various items; they move around the store individually subject to strict social-distancing guidelines set out by state and federal health authorities — and they leave when they have achieved their purpose,” Hale wrote.
“Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a a large group of individuals come together at the same time in the same place for the same purpose.”
ATTORNEY GENERAL SIDES WITH CHURCH
The church appealed, and Kentucky Attorney General Daniel Cameron submitted an amicus brief in support of Maryville Baptist Church and against his own governor.
“These restrictions apply no matter how large the gathering might be, no matter where the people might get together, and regardless of whether they practice safe social-distancing and good hygiene. This is unconstitutional. But it does not have to be this way,” Cameron wrote.
“By simply implementing the same social-distancing measures for religious gatherings as for liquor stores, retail chains, and offices, the governor could achieve the same state interest in a less-restrictive manner,” he opined.
Cameron stated that churches are indeed being treated unfairly since secular activities are allowed, which makes the governor’s orders “quintessential discrimination against religion [and] requiring the state to meet the high burden of strict scrutiny.”
“Even though these same orders broadly permit individuals to crowd into hardware stores and law offices, or newsrooms, liquor stores and grocery stores, they do not permit people to attend religious services at a church, mosque, synagogue, or other house of worship, even if they follow social-distancing guidelines. This is, without question, an unconstitutional targeting of religious activity,” he wrote.
“Governor Beshear has publicly declared that attending worship service is not life-sustaining, while allowing liquor stores and retailers to continue operating. It is mind-boggling discrimination,” Cameron lamented. “Or as the court noted in a similar case, ‘if beer is ‘essential,’ so is Easter.”
APPEALS COURT RULING
While the Sixth Circuit Court of Appeals said on Saturday that it did not feel “inclined” with going so far as placing an injunction on the ban as it pertains to in-person church services, it did suggest that Beshear could make allowances — like his order does with secular facilities — and simply create an occupancy limit if the size of the gathering is a concern.
“Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there. So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another?” the judges asked. “If the problem is numbers, and risks that grow with greater numbers, then there is a straightforward remedy: limit the number of people who can attend a service at one time.”
“Sure, the church might use Zoom services or the like, as so many places of worship have decided to do over the last two months. But who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when ‘two or three gather in my Name’ Matthew 18:20,” they noted.
The panel pointed to the exceptions in one of Beshear’s orders and concluded that there should be wiggle room for religious practices as well.
“The exception for ‘life-sustaining’ businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions,” the judges outlined. “But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.”
“How are in-person [office] meetings with social distancing any different from drive-in church services with social distancing?” the court asked. “Kentucky permits the meetings and bans the services, even though the open-air services would seem to present a lower health risk. The orders likewise permit parking in parking lots with no limit on the number of cars or the length of time they are there so long as they are not listening to a church service.”
In its lawsuit against Beshear, attorneys for Maryville Baptist Church had noted that the troopers who issued the violation notices placed the warnings on every car in the parking lot — including one used by the local television station, which was there for a news report — regardless of whether the driver went inside the building or never left the safety of their vehicle.
“Kentucky State Police did not enter the church building at Maryville Baptist Church, did not verify that any occupant of any car in the parking lot was actually inside the church building, and did not witness the social distancing and hygiene practices employed
by Maryville Baptist Church inside its building on Easter Sunday,” the legal challenge stated.
“The Kentucky State Police placed its notice on cars in the church’s parking lot solely because it was a parking lot associated with their targeted religious gathering.”
The Church had hoped for an injunction both as it pertained to drive-in and in-person church services, but the appeals court stated that even though the ruling doesn’t grant everything the church wanted, “[a]llowance for drive-in services this Sunday mitigates some harm to the congregants and the church.”