On Saturday May 9, 2020, the Sixth Circuit Court of Appeals issued an order preventing the governor of Kentucky and other state officials from enforcing a ban on in-person worship services. The order comes amid ongoing legal battles across the Midwest regarding the various executive orders instituted by governors in response to the COVID-19 pandemic. The court’s order could have wide-ranging implications for other states with similar bans in place.
In Roberts v. Neace, three congregants of Maryville Baptist Church wished to attend in-person worship services on Sunday, May 10. By order of the Kentucky Governor, however, they were prohibited from attending “faith-based” “mass gatherings” through May 20. Claiming that this limitation on corporate worship violated the free-exercise protections of the First and Fourteenth Amendments of the United States Constitution, the congregants sought emergency relief barring the Governor and other officials from enforcing the ban against them. The district court denied relief on the free-exercise claim. The congregants appealed. They asked the district court to grant an injunction pending appeal on the free-exercise claim, but the court refused. The congregants asked the Sixth Circuit for an injunction pending appeal based on their free-exercise claim.
In evaluating the request for injunction pending appeal, the court was required to determine whether the plaintiffs were likely to succeed on the merits of their claims. In analyzing the Free Exercise claim, the court noted that while a generally applicable law that incidentally burdens religious practices usually will be upheld, a law that discriminates against religious practices usually will be invalidated. The court also noted that faith-based discrimination can come in many forms. A law might be motivated by animus toward people of faith in general or one specific faith. A law might single out religious activity alone for regulation. Or a law might appear to be generally applicable on the surface but not be so in practice due to exceptions for comparable secular activities.
In analyzing the Kentucky orders, the court took special notice of the fact that there were four pages of exceptions noting particular group activities that were allowed while worship gatherings remained banned. And many of the exemptions for secular activities posed comparable public health risks to worship services. For example: The exception for “life sustaining” businesses allowed law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they followed social-distancing and other health-related precautions. But the orders did not permit soul-sustaining group services of faith organizations, even if the groups adhered to all the public health guidelines required of the other services.
It was also significant that the church in question was willing to abide by social distancing and other health mandates while it held in-person worship. The court stated: “The Governor has offered no good reason for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.” The court also cautioned that if worshipers failed to follow social distancing rules during a service, the state was free to enforce those rules as it would for secular gatherings.
Ultimately, the court found that the exceptions allowing secular gatherings while banning worship services rendered the executive orders unlawfully discriminatory. Since the orders were discriminatory, they needed to be the “least restrictive means” of furthering a “compelling government interest.” The court found that while preventing the spread of COVID-19 was a compelling government interest, the orders were not the least restrictive means of accomplishing this goal. The court noted that the Governor could have applied the same social distancing rules to worship services that applied to secular gatherings instead of banning in-person worship completely. The orders could not withstand strict scrutiny.
The court thus found that the plaintiffs were likely to succeed on the merits of their Free Exercise claim. It also found for the plaintiffs on the remaining factors for a preliminary injunction. The court granted the plaintiffs’ motion and entered an order preventing the Governor and other state officials from enforcing the in-person worship ban on plaintiffs so long as the plaintiffs complied with social distancing rules. The full opinion can be read here.
The court’s order could have implications for executive orders in all states in the Sixth Circuit’s jurisdiction. This includes Michigan, Ohio, Tennessee, and Kentucky. Under the court’s analysis, orders that ban worship services while permitting secular gatherings would be unlikely to survive a Free Exercise challenge.
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