Religion: Kentucky’s COVID-19-Based Prohibition Against In-Church Worship is Upheld

Religion: Kentucky’s COVID-19-Based Prohibition Against In-Church Worship is Upheld

Maryville Baptist Church, Inc. v. Beshear, no. 20-cv-5427 (6th Cir. May 2, 2020).

The Sixth Circuit reverses in part a lower court refusal to grant a church’s motion for restraining order against the Kentucky Governor’s orders which did not include churches as “essential services,” enjoining the state from taking action against drive-in church services. 

On March 19, 2020, Kentucky Governor Andy Beshear (Beshear) issued an order prohibiting “[a]ll mass gatherings,” “including, but not limited to, community, civic, public, leisure, faith-based, or sporting events.” That order excepted “normal operations at airports, bus and train stations, . . . shopping malls and centers,” and “typical office environments, factories, or retail or grocery stores where large numbers of people are present, but maintain appropriate social distancing.”

A second order, issued on March 25, 2020, required organizations that are not “life-sustaining” to close. Religious organizations were not “life-sustaining” entities, except when they function as charities by providing “food, shelter, and social services.”

Laundromats, accounting services, law firms, hardware stores, and many other entities were allowed as life-sustaining.

On April 12, 2020 Maryville Baptist Church (Church) held a drive-in Easter service. Congregants parked their cars in the church’s parking lot and listened to a sermon over a loudspeaker. Kentucky State Police arrived in the parking lot and issued notices to the congregants that their attendance at the drive-in service amounted to a criminal act. The officers recorded congregants’ license plate numbers and sent letters to vehicle owners requiring them to self-quarantine for 14 days or be subject to further sanction.

The Church objected, arguing that the orders and enforcement actions violate congregants’ rights under the Kentucky Religious Freedom Restoration Act (KRFRA) and the Free Exercise provisions of the First and Fourteenth Amendments– the orders prohibit its members from gathering for drive-in and in-person worship services regardless of whether they meet or exceed the social distancing and hygiene guidelines in place for permitted commercial and other non-religious activities.. It sought a temporary restraining order to block further enforcement, which the district court denied.

The Church moved a preliminary injunction pending appeal at the Sixth Circuit, a posture which the State’s Attorney General supported via amicus brief. Stating that time was of the essence, because “The case will become moot just over three Sundays from now, May 20, when the Governor has agreed to permit places of worship to reopen,” the Circuit took the appeal. It applied the traditional four-factor analysis when evaluating whether to grant a stay pending appeal, including likelihood of success on the merits; irreparable injury to moving party absent the stay; likelihood of substantial injury to other parties if stay is granted; and interest of the public.

The KRFRA states “Government shall not substantially burden” a person’s “right to act . . . in a manner motivated by a sincerely held religious belief . . . unless the government proves by clear and convincing evidence” that it “has used the least restrictive means [to further] a compelling governmental interest in infringing the specific act.” One of KRFRA’s goals, as with many similar statutes in other states, is to impose strict scrutiny on laws that burden sincerely motivated religious practices.

Applying KRFRA, it was clear that the orders substantially burdened Church members’ religious expression. The question was whether Governor Beshear’s orders were “the least restrictive means” of achieving his public health interests. As the Circuit put it “That’s a difficult hill to climb, and it was never meant to be anything less.” The way the orders treated comparable religious and non-religious activities suggested that they were not the least restrictive way of regulating the churches. “How are in-person meetings with social distancing any different from drive-in church services with social distancing?” the Circuit asked. It noted that, on the same Easter Sunday that 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.

While the Governor denied that the ban applied to drive-in worship services, and the district court seemed to think so as well, the language in the orders said otherwise. By their terms, they applied to “[a]ll mass gatherings,” “including, but not limited to, . . . faith-based . . . events.”

The Governor’s orders also likely “prohibited the free exercise” of “religion.” While laws of general applicability which happen to interfere with religious exercise will often survive, as more exceptions are added to the “general” law, the more suspect it becomes: “At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny.”

The Circuit held that the Governor’s orders had “several potential hallmarks of discrimination.” For one, it prohibited “faith-based” mass gatherings by name-but the court accepted the Governor’s argument against disparate treatment: the orders listed many other group activities, and he had to mention faith groups by name because there are many of them, they meet regularly, and their ubiquity poses material risks of contagion.

The problem lay with the orders’ exceptions. Many of the secular “life sustaining” activities allowed posed comparable public health risks to worship services. The illogical differentiation among activities “[did] little to further these goals and do much to burden religious freedom.” As the Circuit saw it, “The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.”

The Circuit acknowledged that the Church might use Zoom services-but did every congregant have the necessary technology to make that work? The bottom line was health risk, and the Church was willing to abide by the same social distancing and other restrictions imposed on “essential” enterprises. “Risks of contagion turn on social interaction in close quarters; the virus does not care why [people] are there.”

The Sixth Circuit found a likelihood of success and irreparable harm with respect to the Church’s challenge to the ban on drive-in services. But “the balance is more difficult when it comes to in-person services.” The Circuit declined to extend the injunction to in-person worship:

We realize that this falls short of everything the Church has asked for and much of what it wants. But that is all we are comfortable doing after the 24 hours the plaintiffs have given us with this case. In the near term, we urge the district court to prioritize resolution of the claims in view of the looming May 20 date and for the Governor and plaintiffs to consider acceptable alternatives. 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. But it’s not always easy to decide what is Caesar’s and what is God’s-and that’s assuredly true in the context of a pandemic.

The Governor was enjoined from enforcing, during the pendency of the appeal, prohibitions against drive-in worship at the Church, so long as its ministers and congregants adhered to the public health requirements mandated for “life-sustaining” entities.


This case summary is a subset of the summaries that IMLA produces for members in IMLA’s eNews and  Municipal Lawyer.