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Religion Triumphs Over Virus Rules, Raising Judge’s Profile (2)

April 13, 2020, 3:03 PMUpdated: April 13, 2020, 10:12 PM

Drive-thru Easter services took place in Kentucky on Sunday after a U.S. district court judge nominated for a high-profile appeals court wrote restrictions placed on those services due to Covid-19 were unconstitutional.

But the way in which the recently installed Judge Justin Walker, President Donald Trump’s newest nominee for the D.C. Circuit, went about writing that decision attracted attention beyond just Kentuckians. Walker’s opinion, which delved into the historical plight of Christians, solved a problem that possibly didn’t exist and may have been intended to raise his profile, law professors told Bloomberg Law.

“We all know what’s going on here,” Eric Segall, a law professor at Georgia State College of Law, said. The 37-year-old nominee’s opinion is a way “to say ‘Donald Trump, if the time comes—or any Republican president—put me on the Supreme Court.’”

Josh Blackman, a law professor at South Texas College of Law Houston, said while the decision isn’t wrong, the 20-page opinion could’ve been avoided with a call to the City of Louisville to give them an opportunity to respond and determine whether they planned to enforce the restrictions.

“Had such a hearing been held I think they could’ve avoided the entire conflict,” Blackman said.

“But Judge Walker didn’t do that, instead he spent the better part of 24 hours putting together this opinion that resolved an issue I don’t think he necessarily had to resolve,” he said.

Walker’s opinion did have supporters. Among them was Senate Majority Leader Mitch McConnell (R-Ky.), who has championed Walker’s nomination.

“Grateful for this strong, eloquent ruling defending Kentuckians’ religious liberty from Judge Justin Walker, @POTUS’s outstanding nominee for the D.C. Circuit. Of course church parking lots cannot be singled out with unfair standards that differ from other establishments,” he tweeted April 11.

Louisville Restrictions

The issue began when On Fire Christian Center Inc. in Louisville, Ky., wanted to hold drive-in services for Easter, where worshipers would park six feet apart, stay in their cars, and open their windows no more than halfway while the pastor preached outside with speakers.

Although the state’s guidelines permit drive-in services, Mayor Greg Fisher wouldn’t allow them. His statements specifically targeted houses of worship and threatened criminal prosecution if they were held, the church said in its complaint.

Granting On Fire a temporary restraining order April 11, Walker of the U.S. District Court for the Western District of Kentucky said the church was likely to succeed on its claim the restriction violates the free exercise clause.

Louisville is substantially burdening On Fire’s sincerely held religious beliefs in a manner that isn’t neutral between religious and non-religious conduct, with orders and threats that aren’t generally applicable to both religious and non-religious conduct, Walker said.

The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury, he said.

A Mistake

Walker’s opinion, while it may have been unnecessary, is a mistake that many courts have made. “It happens,” Blackman said, adding Walker’s decision was likely getting more attention than usual because of his new status as Trump’s nominee for the D.C. Circuit.

Walker is likely to be a controversial pick. The American Bar Association previously rated Walker “Not Qualified” while he was going through the confirmation process for his trial court seat, saying in a July letter he lacked the experience needed for the position. That criticism has already followed him to his appeals court nomination.

While the mayor could have been clearer as to whether he thought attending these services were illegal, Segall said, a call to the city by Walker could’ve fixed that.

“I think the mayor should have done better, but I think the mayor was doing his best. I think the judge’s order is defensible on the merits,” Segall said. “The only thing in the whole set of facts that’s not defensible is writing a tome to the persecution of Christians when none of that was going on here.”

Similar New Mexico Order

Others in New Mexico faced a similar constitutional challenge

In Albuquerque, Legacy Church Inc. wanted to broadcast its Easter services online but was prevented from having a 16-member production crew and approximately 14 participants in the church building it said in an April 11 request for a temporary restraining order.

The numbers ran afoul of a state public health order that prohibits houses of worship from having more than five people in a room regardless of its its size or distancing taking place, Legacy’s complaint filed in the U.S. District Court for the District of New Mexico said.

The restriction violates the First Amendment’s free exercise clause because it specifically targets houses of worship, Legacy said. It also violates the First Amendment’s freedom of assembly clause, because worshipers aren’t given an opportunity to meet the less restrictive requirements others groups are afforded to meet the state’s public safety goals, it said.

There’s no indication on the docket whether the court took action on the TRO.

Swansburg & Smith PLLC represented On Fire. The Barnett Law Firm PA represented Legacy.

The cases are On Fire Christian Center v. Fischer, W.D. Ky., No. 3:20-cv-264-JRW, 4/11/20; and Legacy Church Inc. v. Kunkel, D.N.M., No. 1:20-cv-00237-JB-scy, complaint filed 4/11/20.

(Updated with comments from Eric Segall and Josh Blackman. Corrects story to indicate that New Mexico court has yet to take action in that case.)

To contact the reporters on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com; Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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