Last Saturday, the 6th U.S. Circuit Court of Appeals rejected Kentucky Governor Andy Beshear’s attempt to ban in-person worship services in the state, in a case involving Maryville Baptist Church in Louisville, Kentucky. The action came one week after the same 6th Circuit 3-judge panel blocked Beshear’s order as it related to drive-in worship services.
The lawsuit involves two executive orders issued by the governor related to the coronavirus outbreak. The first, dated March 19, prohibited all “mass gatherings” except “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.”
The second order, dated March 25, required all organizations that were not deemed “life-sustaining” to close. That order contained 19 broad categories of entities designated as “life-sustaining,” with over 100 subcategories spanning four pages. The list included such businesses as laundromats, accounting services, law firms, hardware stores, airlines, mining operations, funeral homes, landscaping businesses and grocery stores.
Religious organizations like churches were not considered “life-sustaining” entities unless they provided “food, shelter or social services.”
The 6th Circuit ruled that Beshear’s executive orders were not neutral toward religion and violated the First Amendment. The effect of the court’s decision allowed Maryville Baptist Church to hold in-church worship services on Sunday and, going forward, for the length of time Beshear’s closure orders remain in effect.
Coincidentally, the day before the 6th Circuit ruling, in another case involving a different Kentucky church, a federal district judge (who serves in a court just below the 6th Circuit) issued a statewide injunction against those same executive orders, ensuring that all churches in the state will be able to meet for worship if they so choose. Between the two decisions, the right of all Kentucky churches to meet for in-person worship has been vindicated.
The 6th Circuit ruling, however, is important not only for its clearly reasoned opinion but also because of its status as an appellate court just below the U.S. Supreme Court, a status it shares with 11 other circuit courts. The 6th Circuit covers four states: Kentucky, Michigan, Ohio and Tennessee.
Religious hostility was not an issue in the Kentucky case. The 3-judge panel didn’t accuse the governor of bias or animus against religion, nor did it question his good intentions in attempting to stop the spread of the deadly disease. But to be constitutional, the panel said, restrictions such as Beshear’s executive orders must be neutral and generally applicable to all entities. That’s where the governor’s closure mandate failed to pass constitutional muster.
“Do the four pages of exceptions in the orders, and the kinds of group activities allowed, remove them from the safe harbor for generally applicable laws?” the court wrote. “We think so. As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, nondiscriminatory law. 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 issue of mandatory church closure orders remains a hot topic. Just in the last week or two, and contrary to what the 6th Circuit ruled in the Kentucky case, federal district courts in California, Illinois and Maine have approved closure orders in the face of challenges from churches. The importance of the issue along with the contradictory court decisions from around the country cry out for some type of a definitive resolution, perhaps at the Supreme Court.
As the first federal appeals court to address the issue, however, the 6th Circuit’s decision is a strong marker in defense of religious freedom.