The 6th U.S. Circuit Court of Appeals has now twice ruled that Kentucky Gov. Andy Beshear may not enforce his stay-at-home order against congregations meeting in person. The decisions mark the first entrance by a federal appeals court into the growing debate surrounding whether and to what extent a governor’s emergency restrictions on public gatherings apply to worship services.
The appeals court focused on whether the law is generally applicable to all and neutral toward religion, or whether it singles out religion for different treatment. Here, a unanimous 6th Circuit panel concluded that even though the law doesn’t explicitly discriminate against religion, there are so many non-religious exceptions that it is not neutral.
A key excerpt from the order explaining their reasoning in that analysis is below:
The Governor insists at the outset that there are “no exceptions.” But that is word play. The orders allow “life-sustaining” operations and don’t include worship services in the definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for “life sustaining” businesses allows law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they follow social-distancing and other health-related precautions. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of the other services.
As I stated earlier when I posted about the first batch of cases to raise this issue, the outcome of these lawsuits, which are being brought against governors and mayors all across the country, are very fact-specific. Each state and local government’s set of restrictions are unique and handle the question of worship service gatherings differently. As a result, it’s hard to draw general conclusions about whether the U.S. Constitution forbids governors from restricting worship service gatherings in light of the coronavirus pandemic.
BJC Executive Director Amanda Tyler and General Counsel Holly Hollman talked more about the lawsuits and things to consider on an April episode of the Respecting Religion podcast series.
The 6th Circuit rulings found that Kentucky’s approach placed greater restrictions on worship service gatherings than was apparently necessary, in light of the secular gatherings the governor’s order allows. Other circuits are likely to weigh in.