Bench Memos

Law & the Courts

New Sixth Circuit Injunction Against Kentucky Ban on In-Person Religious Services

One week ago, a Sixth Circuit panel, in enjoining Kentucky governor Andy Beshear from enforcing pending appeal two COVID-19 social-distancing orders against a church’s drive-in religious services, allowed him to ban that church from offering in-person services. But this past Saturday, in an unpublished order published today as a precedential opinion, the panel also enjoined Beshear from “prohibiting in-person services at the Maryville Baptist Church if the Church, its ministers, and its congregants adhere to the public health requirements mandated for ‘life-sustaining’ entities.” Here is a key excerpt:

The orders allow “life-sustaining” operations and don’t include worship services in the definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for “life- sustaining” businesses allows law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they follow social-distancing and other health-related precautions. 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 the other services.

Keep in mind that the Church and its congregants just want to be treated equally. They don’t seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They do not ask to share a chalice. 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.

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