“While the law may take periodic naps during a pandemic, we will not let it sleep through one.” So declared a Sixth Circuit panel in a ruling on Saturday (in Maryville Baptist Church v Beshear) that prevents Kentucky governor Andy Beshear from enforcing pending appeal two COVID-19 social-distancing orders against a church’s drive-in religious services.
In a per curiam opinion, the panel (Sutton, McKeague, and Nalbandian) determined that the church was likely to succeed on its claims that the orders, especially as they applied to drive-in services, violated its rights under state and federal law.
As for Kentucky’s Religious Freedom Restoration Act, “[t]he way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches.” “How,” the panel asks, “are in-person meetings with social distancing” (which the orders allow in “typical office environments”) “any different from drive-in church services with social distancing?” And how can the orders “permit big-lot parking for secular purposes [but] not for religious purposes”?
The panel also found that the governor’s orders likely violate the church’s Free Exercise protections of the federal Constitution. The orders have “several potential hallmarks of discrimination” that deprive them of the deference that generally applicable laws receive. For example, “many of the serial exceptions for secular activities pose comparable public health risks to worship services,” yet the governor “has offered no good reason so far 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.”
Although the panel concluded that the governor’s orders were also likely illegal in their application to in-person services, the panel found that the balance of harms was “more difficult” to determine and, on that basis, did not at this stage enjoin the governor from applying his orders to in-person services. At the same time, the panel warned that the “breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom.”