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Virus Orders Can’t Bar Kentucky Drive-In Church, Court Rules (1)

May 4, 2020, 5:57 PMUpdated: May 4, 2020, 9:38 PM

Kentucky churches can’t be stopped from holding drive-in services, a federal appeals court ruled, while criticizing state health orders as discriminating against religious gatherings compared to large gatherings in grocery stores.

“While the law may take periodic naps during a pandemic, we will not let it sleep through one,” a three-judge Sixth Circuit Court of Appeals panel said in unanimous per curiam order issued Saturday.

The ruling found Kentucky Gov. Andy Beshear’s (D) social-distancing orders issued to combat the spread coronavirus violated the state’s version of the Religious Freedom Restoration Act. Rules blocking drive-in church gatherings “substantially burden the congregants’ sincerely held religious practices” at plaintiff Maryville Baptist Church, it said.

Beshear’s orders don’t explicitly provide an exemption for religious gatherings, but permit people to visit grocery stores and work in some office environments. Also, under Beshear’s plan for reopening the state’s economy in-person church services aren’t allowed until May 20, but various sectors of industry will open May 11 so long as employers follow guidelines aimed at decreasing spread of the virus.

The court found both disparities significant.

“On the same Easter Sunday that police officers informed congregants they were violating criminal laws by sitting in their cars in a parking lot, hundreds of cars were parked in grocery store parking lots less than a mile from the church,” the court said in its order. “The orders permit big-lot parking for secular purposes, just not for religious purposes. All in all, the Governor did not narrowly tailor the order’s impact on religious exercise.”

‘The Governor’s Exact Policy’

The church had appealed an April 18 decision from the U.S. District Court for the Western District of Kentucky which found the congregation wasn’t likely to succeed in its challenge of the state’s orders. The Sixth Circuit panel declined to rule on the legality of banning in-person services, saying that the issue hadn’t yet been addressed by the district court.

Despite opposing the church in the litigation, Beshear’s office said the Sixth Circuit ruling backed up how he wanted the state’s virus orders to work.

“While Maryville Baptist claimed that the Governor banned drive-in services, he clearly did not. The Governor has allowed and even encouraged hundreds of drive-in services across Kentucky,” Beshear spokeswoman Crystal Staley said in a statement. “What the Sixth Circuit decided is that drive-in services are okay, but the Governor’s order prohibiting in-person services remains in effect. That has been the Governor’s exact policy since the beginning.”

The church was represented by Liberty Counsel, which believes the decision’s language could also help the church’s case seeking to open in-person services, Mathew Staver, senior pastor, chairman and founder of Liberty Counsel said in a telephone interview.

“The language is broad enough to target all of our concerns, which includes the in-person meetings when there is proper social-distancing,” Staver said.

The speed at which the decision came was also a good omen for the church’s case moving forward, Staver said. The court received the appeal motion on Thursday night and issued the order on Saturday.

Judges Jeffrey S. Sutton, David W. McKeague, and John B. Nalbandian served on the panel.

The case is Maryville Baptist Church, Inc. v. Beshear, 6th Cir., No. 20-5427, Order granting in part church’s preliminary injunction motion 5/2/20.

(Updated with comments from Mathew Staver, lawyer for Maryville Baptist Church. )

To contact the reporter on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com

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

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