Religious Law

Kentucky can't ban drive-in church services if health precautions are followed, 6th Circuit says

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The Maryville Baptist Church in Louisville, Kentucky, may host drive-in services despite orders by Kentucky Gov. Andy Beshear that ban mass gatherings and require the closure of all businesses that are not “life-sustaining,” a federal appeals court ruled Saturday.

The 6th U.S. Circuit Court of Appeals at Cincinnati ruled that Beshear’s orders likely prohibit the free exercise of religion in violation of the First and 14th Amendments, especially with respect to drive-in services. The orders also likely violate the Kentucky Religious Freedom Restoration Act, the appeals court ruled.

Courthouse News Service and the Louisville Courier Journal covered the May 2 opinion. Liberty Counsel represented the church, according to a press release.

The appeals court upheld an injunction barring enforcement of the orders as applied to drive-in services, if the church follows public health requirements mandated for life-sustaining entities. But the court said it was not inclined to extend the injunction to allow in-person services at this point, given the fast-moving pace of the litigation.

The orders were implemented in response to the COVID-19 epidemic. Churches will be allowed to host services again beginning May 20.

Beshear had argued that the ban did not apply to drive-in services. “But that is not what the governor’s orders say,” the appeals court said. The wording of the ban said it applied to mass gatherings, including faith-based events.

The court noted that state troopers visited the church on Easter Sunday and took down the license plate numbers of everyone there, whether they participated in a drive-in or in-person service. Notices said the congregants had committed a crime. They also received letters advising them to self-quarantine for 14 days.

Beshear had defined life-sustaining businesses to include law firms, laundromats, liquor stores and gun shops. The order allowed such businesses to operate if they followed social distancing precautions. “Soul-sustaining group services of faith organizations” were not defined as life sustaining, the 6th Circuit said.

“Restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom,” the appeals court said.

“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?” the 6th Circuit said. “Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.”

The panel ruled unanimously in a per curiam opinion. Its members included two appointees of President George W. Bush: Judges Jeffrey Sutton and David McKeague. The third member of the panel was Judge John Nalbandian, an appointee of President Donald Trump.

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