Case: 3:20-cv-278 As of: 08/03/2020 07:19 PM EDT 1 of 7
APPEAL,INTAPP,SUBDJH
U.S. District Court Western District of Kentucky (Louisville) CIVIL DOCKET FOR CASE #: 3:20−cv−00278−DJH−RSE

Maryville Baptist Church, Inc. et al v. Beshear Assigned to: Judge David J. Hale Referred to: Magistrate Judge Regina S. Edwards Case in other court: USCA 6th Circuit, 20−05427 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/17/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Maryville Baptist Church, Inc.

represented by Daniel J. Schmid Liberty Counsel − Orlando P.O. Box 540774 Orlando, FL 32854 407−875−1776 Fax: 407−875−0770 Email: dschmid@lc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Horatio G. Mihet Liberty Counsel − Orlando P.O. Box 540774 Orlando, FL 32854 407−875−1776 Fax: 407−875−0770 Email: hmihet@lc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mathew D. Staver Liberty Counsel − Orlando P.O. Box 540774 Orlando, FL 32854 407−875−1776 Fax: 407−875−0770 Email: court@lc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Gannam Liberty Counsel − Orlando P.O. Box 540774 Orlando, FL 32854 407−875−1776 Fax: 407−875−0770 Email: rgannam@lc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Dr. Jack Roberts

represented by Daniel J. Schmid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Horatio G. Mihet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:20-cv-278 As of: 08/03/2020 07:19 PM EDT 2 of 7

V. Defendant Andy Beshear in his official capacity as Governor of the Commonwealth of Kentucky
Amicus

Mathew D. Staver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by La Tasha Buckner Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2611 Email: latasha.buckner@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura S. Tipton Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2611 Fax: 502−564−6858 Email: laurac.tipton@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc G. Farris Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2611 Fax: 502−564−2517 Email: marc.farris@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven T. Mayo Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2611 Fax: 502−564−6858 Email: travis.mayo@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Taylor A. Payne Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2644 Email: Taylor.Payne@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:20-cv-278 As of: 08/03/2020 07:19 PM EDT 3 of 7

Commonwealth of Kentucky

represented by Barry L. Dunn Kentucky Attorney General 700 Capital Avenue, Suite 118 Frankfort, KY 40601−3449 502−696−5300 Fax: 502−564−2894 Email: barry.dunn@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carmine G. Iaccarino Kentucky Attorney General 700 Capitol Avenue, Suite 120 Frankfort, KY 40601 502−696−5300 Email: carmine.iaccarino@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor B. Maddox Kentucky Attorney General 700 Capital Avenue, Suite 118 Frankfort, KY 40601−3449 502−696−5336 Email: Victor.Maddox@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/17/2020
04/17/2020 04/17/2020 04/17/2020 04/17/2020 04/17/2020 04/17/2020

# Docket Text
1 VERIFIED COMPLAINT FOR DECLARATORY RELIEF, TEMPORARY RESTRAINING ORDER, PRELIMINARY AND PERMANENT INJUNCTIVE RELEIF, AND DAMAGES against Andy Beshear, filed by Jack Roberts, Maryville Baptist Church, Inc.. (Attachments: # 1 Cover Sheet, # 2 Exhibit A − Executive Order, # 3 Exhibit B − 3−16−20 Order, # 4 Exhibit C − 3−17−20 Order, # 5 Exhibit D − 3−19−20 Order, # 6 Exhibit E − 3−22−20 Order, # 7 Exhibit F − 3−25−20 Order, # 8 Exhibit G − CISA Guidance, # 9 Exhibit H − Press Release, # 10 Exhibit I − Declaration of David Carr, # 11 Exhibit J − State Police Notice, # 12 Exhibit K − Letter from 4−14−20, # 13 Exhibit L − State of Florida Executive Order, # 14 Exhibit M − Indiana Executive Order, # 15 Exhibit N − State of Arizona Executive Order, # 16 Exhibit O − Alabama Executive Order, # 17 Exhibit P − State of Arkansas Executive Order, # 18 Exhibit Q − State of Connecticut Executive Order) (DJT) (Entered: 04/17/2020)
2 Case Assignment (Random Selection): Case Assigned to Judge David J. Hale. (DJT) (Entered: 04/17/2020)
3 EMERGENCY MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by Plaintiffs Maryville Baptist Church, Inc., Jack Roberts (DJT) (Entered: 04/17/2020)
4 Summons Issued as to Andy Beshear. Counsel for Plaintiff is responsible for printing and serving the attached issued summons(es). Summons emailed to counsel this date for service. (DJT) (Entered: 04/17/2020)
5 MOTION to Appear Pro Hac Vice as to Mathew D. Staver Filing fee $ 125. by Plaintiffs Maryville Baptist Church, Inc., Jack Roberts (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Proposed Order) (DJT) (Entered: 04/17/2020)
6 MOTION for Daniel Schmid to Appear Pro Hac Vice Filing fee $ 125. by Plaintiffs Maryville Baptist Church, Inc., Jack Roberts (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Proposed Order) (DJT) (Entered: 04/17/2020)
7 MOTION for Horatio G. Mihet to Appear Pro Hac Vice Filing fee $ 125. by Plaintiffs Maryville Baptist Church, Inc., Jack Roberts (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Proposed Order) (DJT) (Entered: 04/17/2020)

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04/17/2020 04/18/2020
04/20/2020 04/21/2020

8 MOTION for Roger K. Gannam to Appear Pro Hac Vice Filing fee $ 125. by Plaintiffs Maryville Baptist Church, Inc., Jack Roberts (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Proposed Order) (DJT) (Entered: 04/17/2020)
9 ORDER Signed by Judge David J. Hale on 4/18/2020. Plaintiffs' Motion for Temporary Restraining Order (D.N. 3 ) is DENIED. This matter will be set for a telephonic status conference by subsequent order. During the conference, the Court will set an expedited briefing and hearing schedule on the motion for preliminary injunction. (KD) (Entered: 04/18/2020)
11 MOTION to Reassign Case by Plaintiffs Maryville Baptist Church, Inc. and Jack Roberts. (KD) (Additional attachment(s) added on 4/23/2020: # 1 Proposed Order) (KD). (Entered: 04/21/2020)
10 TEXT ORDER Signed by Judge David J. Hale on 4/21/2020 granting 5 Motion for Mathew D. Staver to Appear Pro Hac Vice ; granting 6 Motion for Daniel Schmid to Appear Pro Hac Vice ; granting 7 Motion for Horatio G. Mihet to Appear Pro Hac Vice ; granting 8 Motion for Roger K. Gannam to Appear Pro Hac Vice.

This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.

04/21/2020 04/22/2020 04/22/2020 04/23/2020
04/24/2020 04/24/2020 04/24/2020 04/27/2020 04/28/2020

cc: Counsel(NWT) (Entered: 04/21/2020)
Filing fee: $ 900.00, receipt number L33063592 CIVIL COMPLAINT FILING FEE AND 4 PHV MOTIONS by Maryville Baptist Church, Inc., Jack Roberts. (JLP) (Entered: 04/21/2020)
12 SUMMONS Returned Executed by Jack Roberts, Maryville Baptist Church, Inc.. Andy Beshear served on 4/21/2020, answer due 5/12/2020. (Schmid, Daniel) (Entered: 04/22/2020)
13 Proposed Order GRANTING re 11 MOTION to Reassign Case by Maryville Baptist Church, Inc., Jack Roberts. (Schmid, Daniel) (Entered: 04/22/2020)
14 TEXT ORDER by Judge David J. Hale on 4/23/2020; Pursuant to 28 U.S.C. 636(b)(1)(A), this matter is hereby referred to U.S. Magistrate Judge Regina S. Edwards, for resolution of all litigation planning issues, entry of scheduling orders, consideration of amendments thereto, and resolution of all non−dispositive matters, including discovery issues. Judge Edwards is further authorized to conduct a settlement conference in this matter at any time.
This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.
cc:counsel (NWT) (Entered: 04/23/2020)
15 NOTICE of Appearance by Steven T. Mayo on behalf of Andy Beshear (Mayo, Steven) (Entered: 04/24/2020)
16 NOTICE OF APPEAL (Interlocutory) as to 9 Order on Motion for TRO, by Maryville Baptist Church, Inc., Jack Roberts. Filing fee $ 505, receipt number 0644−3090236. (Gannam, Roger) (Entered: 04/24/2020)
17 Emergency MOTION for Preliminary Injunction Pending Appeal by Plaintiffs Maryville Baptist Church, Inc., Jack Roberts (Attachments: # 1 Proposed Order) (Gannam, Roger) (Entered: 04/24/2020)
18 USCA 6th Circuit Case Number 20−5427 for 16 Notice of Interlocutory Appeal filed by Jack Roberts, Maryville Baptist Church, Inc. (SMJ) (Entered: 04/27/2020)
19 TEXT ORDER by Magistrate Judge Regina S. Edwards on 4/28/2020. On the Court's motion, a Telephonic Conference is scheduled for 4/30/2020 at 1:30 PM before Magistrate Judge Regina S. Edwards. To participate in the conference, counsel shall dial in to 1−888−808−6929, Access Code 2887606.
This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.

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04/29/2020 04/30/2020 05/02/2020
05/03/2020 05/04/2020 05/04/2020 05/04/2020
05/04/2020 05/05/2020
05/05/2020 05/06/2020 05/06/2020 05/06/2020

cc: Counsel (AEH) (Entered: 04/28/2020)
20 MOTION for Leave to File Amicus Curiae Brief by Amicus Commonwealth of Kentucky (Attachments: # 1 Proposed Order, # 2 Exhibit Tendered Amicus Curiae Brief) (Dunn, Barry) (Entered: 04/29/2020)
21 NOTICE of Supplemental Fact Development by Andy Beshear (Mayo, Steven) (Entered: 04/30/2020)
23 ORDER of USCA 6th Circuit: PER CURIAM ORDER. The plaintiffs' motion for an injunction pending appeal, and their motion to expedite briefing, oral argument and submission on the briefs, is GRANTED IN PART. The Governor and all other Commonwealth officials are hereby enjoined, during the pendency of this appeal, from enforcing orders prohibiting drive−in services at the Maryville Baptist Church if the Church, its ministers, and its congregants adhere to the public health requirements mandated for "life−sustaining" entities. Jeffrey S. Sutton, David W. McKeague, and John B. Nalbandian, Circuit Judges. (Attachments: # 1 cover letter) (SMJ) (Entered: 05/04/2020)
22 Order for proceedings held before Magistrate Judge Regina S. Edwards: Telephone Conference held on 4/30/2020. Re 17 Emergency MOTION for Preliminary Injunction Pending Appeal. Responses due by 5/6/2020. Replies due by 5/8/2020. cc:counsel (KJA) (Entered: 05/03/2020)
24 ORDER by Judge David J. Hale on 5/4/2020 − Telephonic Status Conference set for 5/4/2020 at 3:00 p.m. before Judge David J. Hale. The Court's deputy clerk will contact counsel with call−in information. The parties shall be prepared to revisit the briefing schedule previously set in this matter and to discuss the necessity of creating a record to aid in the appellate process. (KD) (Entered: 05/04/2020)
25 Emergency MOTION for Preliminary Injunction Pending Appeal (Renewed ECF 17) by Plaintiffs Maryville Baptist Church, Inc., Jack Roberts (Attachments: # 1 Exhibit A − 6th Circuit IPA Motion, # 2 Exhibit B − 6th Circuit IPA Motion Response, # 3 Exhibit C − Declaration of Dr. Jack Roberts) (Gannam, Roger) (Entered: 05/04/2020)
26 NOTICE from USCA 6th Circuit re 23 USCA Order. PUBLISHED ORDER filed. GRANTED IN PART. Decision for publication. Jeffrey S. Sutton, David W. McKeague, and John B. Nalbandian, Circuit Judges. *This decision was originally filed as an unpublished order on May 2, 2020. The court has now designated the order for publication. The date the decision is deemed to have been filed remains May 2, 2020. (Attachments: # 1 cover letter) (SMJ) (Entered: 05/04/2020)
27 MEMORANDUM OF CONFERENCE AND ORDER for proceedings held before Judge David J. Hale: Telephonic Status Conference held on 5/4/2020. Telephonic Status Conference set for 5/5/2020 at 3:00 p.m. before Judge David J. Hale. The Court's deputy clerk will contact counsel with call−in information. (Court Reporter: Dena Legg) (KD) (Entered: 05/04/2020)
28 MEMORANDUM OF CONFERENCE AND ORDER for proceedings held before Judge David J. Hale: Telephonic Status Conference held on 5/5/2020. The parties' stipulation of facts shall be filed no later than 12:00 p.m. Wednesday, 5/6/2020. Defendant's response brief shall be filed no later than 1:00 p.m. Wednesday, 5/6/2020. Plaintiffs' reply brief shall be filed no later than 1:00 p.m. Thursday, 5/7/2020. (Court Reporter: Dena Legg.) cc: counsel (JM) (Entered: 05/05/2020)
Proceedings held before Magistrate Judge Regina S. Edwards: Settlement Conference held on 5/5/2020. No order per RSE. (AEH) (Entered: 05/13/2020)
29 STIPULATION re 28 Telephone Conference,, Schedules − Motion and R&R Deadlines, (Stipulation of Facts Not in Dispute) by Maryville Baptist Church, Inc., Jack Roberts. (Gannam, Roger) (Entered: 05/06/2020)
30 MOTION for Leave to Exceed Page Limit by Defendant Andy Beshear (Attachments: # 1 Proposed Order Proposed Order) (Payne, Taylor) (Entered: 05/06/2020)
31 RESPONSE to Motion re 25 Emergency MOTION for Preliminary Injunction Pending Appeal (Renewed ECF 17) filed by Andy Beshear. (Attachments: # 1 Exhibit Exhibit A − Court Order, # 2 Exhibit Exhibit B − Stack Affidavit, # 3 Exhibit Exhibit C −

Case: 3:20-cv-278 As of: 08/03/2020 07:19 PM EDT 6 of 7

05/07/2020 05/08/2020 05/08/2020 05/08/2020
05/08/2020
05/10/2020 05/12/2020 05/12/2020 05/13/2020 05/13/2020 05/28/2020 06/10/2020

Tourism Order, # 4 Exhibit Exhibit D − Burnett Declaration, # 5 Exhibit Exhibit E − Perry Declaration, # 6 Exhibit Exhibit F − Court Order, # 7 Exhibit Exhibit G − Court Order) (Mayo, Steven) (Entered: 05/06/2020)
32 REPLY to Response to Motion re 25 Emergency MOTION for Preliminary Injunction Pending Appeal (Renewed ECF 17) filed by Maryville Baptist Church, Inc., Jack Roberts. (Gannam, Roger) (Entered: 05/07/2020)
33 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Andy Beshear (Attachments: # 1 Memorandum in Support Memorandum, # 2 Exhibit Exhibit A to Memorandum, # 3 Exhibit Exhibit B to Memorandum, # 4 Proposed Order Proposed Order) (Payne, Taylor) (Entered: 05/08/2020)
34 NOTICE of Filing of Supplemental Fact Development by Andy Beshear (Attachments: # 1 Exhibit Exhibit A − Places of Worship) (Mayo, Steven) (Entered: 05/08/2020)
35 ORDER Signed by Judge David J. Hale on 5/8/2020 − Plaintiffs' renewed motion for injunction pending appeal (D.N. 25 ) is GRANTED as to in−person services. Given that the same issues are raised in Plaintiffs' initial motion for preliminary injunction, that motion (D.N. 3 ) is likewise GRANTED. Plaintiffs' initial motion for injunction pending appeal (D.N. 17 ) and motion for reassignment (D.N. 11 ) are DENIED as moot. The Governor's motion to exceed the page limit (D.N. 30 ) and the motion of the Commonwealth of Kentucky for leave to file an amicus brief (D.N. 20 ) are GRANTED. If necessary, the Court will set by subsequent order a briefing schedule on the Governor's motion to dismiss and a hearing on Plaintiffs' request for permanent injunction. (KD) (Entered: 05/08/2020)
37 NOTICE from USCA 6th Circuit re pending motions: The court requests the plaintiffs in both cases to indicate by 3:00 PM today, May 8, 2020, whether they wish any pending motions, or motions that may be filed in the future, to be resolved before May 10, 2020. Jeffrey S. Sutton, David W. McKeague, and John B. Nalbandian, Circuit Judges. [20−5427, 20−5465]. (Attachments: # 1 cover letter) (SMJ) (Entered: 05/11/2020)
36 NOTICE of Filing of Supplemental Authority by Andy Beshear (Attachments: # 1 Exhibit Exhibit A − 5−9−2020 CHFS Order) (Mayo, Steven) (Entered: 05/10/2020)
38 Amended MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , Amended MOTION to Dismiss for Lack of Jurisdiction by Defendant Andy Beshear (Attachments: # 1 Memorandum in Support Memorandum in Support of First Amended Motion to Dismiss, # 2 Proposed Order Proposed Order − First Amended Motion to Dismiss) (Mayo, Steven) (Entered: 05/12/2020)
39 Emergency MOTION for Clarification of Injunction (ECF 35), Alternative MOTION for Hearing (Status Conference) by Plaintiffs Maryville Baptist Church, Inc., Jack Roberts (Attachments: # 1 Roberts v. Neace Injunction Pending Appeal) (Gannam, Roger) (Entered: 05/12/2020)
40 Proposed Order re 39 Emergency MOTION for Clarification of Injunction (ECF 35)Alternative MOTION for Hearing (Status Conference) by Maryville Baptist Church, Inc., Jack Roberts. (Gannam, Roger) (Entered: 05/13/2020)
41 ORDER Signed by Judge David J. Hale on 5/13/2020 − Plaintiffs' emergency motion for clarification or status conference (D.N. 39 ) is DENIED. (KD) (Entered: 05/13/2020)
42 Proposed Agreed Order Extending Deadline for Consolidated Response to Defendant's Motion to Dismiss and First Amended Motion to Dismiss by Commonwealth of Kentucky, Maryville Baptist Church, Inc., Jack Roberts. (Mihet, Horatio) (Entered: 05/28/2020)
43 Proposed Agreed Order Extending Deadline for Consolidated Response to Defendant's Motion to Dismiss and First Amended Motion to Dismiss, to and Including June 17, 2020 by Maryville Baptist Church, Inc., Jack Roberts. (Mihet, Horatio) (Entered: 06/10/2020)

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06/11/2020 06/17/2020
06/29/2020 07/06/2020 07/08/2020
07/13/2020 07/20/2020 08/03/2020

44 SECOND AGREED ORDER EXTENDING BRIEFING SCHEDULE ON DEFENDANT'S MOTION TO DISMISS AND AMENDED MOTION TO DISMISS signed by Magistrate Judge Regina S. Edwards on 6/11/2020; re 43 Proposed Agreed Order. cc: Counsel (ALS) (Entered: 06/11/2020)
45 RESPONSE to Motion re 38 Amended MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Amended MOTION to Dismiss for Lack of Jurisdiction , 33 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Maryville Baptist Church, Inc., Jack Roberts. (Mihet, Horatio) (Entered: 06/17/2020)
46 MOTION Dissolve Preliminary Injunction and Injunction Pending Appeal by Defendant Andy Beshear (Attachments: # 1 Memorandum in Support Memorandum in Support, # 2 Proposed Order Proposed Order) (Payne, Taylor) (Entered: 06/29/2020)
47 Proposed Agreed Order For Extension of Time To File Reply Brief by Andy Beshear. (Payne, Taylor) (Entered: 07/06/2020)
48 AGREED ORDER OF EXTENSION AS TO DEFENDANT'S TIME TO FILE A REPLY IN SUPPORT OF THE AMENDED MOTION TO DISMISS Signed by Magistrate Judge Regina S. Edwards on 7/8/2020, granting 47 − Defendant may file the Reply in support of the Amended Motion to Dismiss on or before July 13, 2020. (KD) (Entered: 07/08/2020)
49 REPLY to Response to Motion re 38 Amended MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Amended MOTION to Dismiss for Lack of Jurisdiction filed by Andy Beshear. (Payne, Taylor) (Entered: 07/13/2020)
50 RESPONSE to Motion re 46 MOTION Dissolve Preliminary Injunction and Injunction Pending Appeal filed by Maryville Baptist Church, Inc., Jack Roberts. (Schmid, Daniel) (Entered: 07/20/2020)
51 REPLY to Response to Motion re 46 MOTION Dissolve Preliminary Injunction and Injunction Pending Appeal filed by Andy Beshear. (Payne, Taylor) (Entered: 08/03/2020)

 
 Case 3:20-cv-00278-DJH-RSE Document 3 Filed 04/17/20 Page 1 of 26 PageID #: 177

FILED
VANESSA L ARMSTRONG, CLERK

UNITED STATES DISTRICT COURT

Apr 17 2020

WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

U.S. DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

MARYVILLE BAPTIST CHURCH, INC., )

and DR. JACK ROBERTS,

)

)

Plaintiffs,

) CASE NO. __3:_2_0_C_V_-_2_7_8-_D_J_H______

)

v.

)

)

ANDY BESHEAR, in his official capacity as )

Governor of the Commonwealth of Kentucky, )

)

Defendant.

)

PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND SUPPORTING MEMORANDUM OF LAW
Plaintiffs, MARYVILLE BAPTIST CHURCH, INC. (“Maryville Baptist Church” or the “Church”), and DR. JACK ROBERTS (“Dr. Roberts”), pursuant to Fed. R. Civ. P. 65 and L.R. 7.1, move the Court for a Temporary Restraining Order (TRO) and Preliminary Injunction (PI) restraining and enjoining Defendant, ANDY BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky (the “Commonwealth” or “Kentucky”), from unconstitutionally enforcing and applying the various COVID-19 orders issued by Governor Beshear and other Commonwealth officials (collectively, the “GATHERING ORDERS”) purporting to prohibit Plaintiffs, on pain of criminal sanctions and mandatory, household-wide quarantines, from gathering for in-person or even “drive-in” worship services at the Church, regardless of whether Plaintiffs meet or exceed the social distancing and hygiene guidelines pursuant to which the Commonwealth disparately and discriminatorily allows so-called “life-sustaining” commercial and non-religious entities (e.g., beer, wine, and liquor stores, warehouse clubs, and supercenters) to accommodate large gatherings of persons without scrutiny or numerical limit.

Case 3:20-cv-00278-DJH-RSE Document 3 Filed 04/17/20 Page 2 of 26 PageID #: 178
Last Saturday, April 11, 2020, this Court issued a TRO restraining and enjoining the Mayor of Louisville from “enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with any prohibition on drive-in church services at On Fire.” See On Fire Christian Ctr., Inc. v. Fisher, No. 3:20-CV-264-JRW, 2020 WL 1820249, *1 (W.D. Ky. Apr. 11, 2020) (emphasis added). The Court issued the TRO because the Mayor threatened the plaintiffs in that action with criminal enforcement of Governor Beshear’s COVID-19 orders. The Louisville Mayor had said that he would “use the police to deter and disburse” religious gatherings, had requested that the police “record license plates of all vehicles in attendance,” and threatened that individuals would be contacted by public health officials informing them to self-quarantine under the threat of criminal sanction. Id. at *4–5. The Court held such threats and actions were unconstitutional because the government “may not ban its citizens from worshipping.” Id. at *8 (emphasis added). And although the Louisville TRO was necessarily limited to the plaintiffs before the Court in the case, the Court admonished, “Louisville ought not to view the limits of this injunction as a green light to violate the religious liberty of non-parties.” Id. at *1 n.2.
Nevertheless, what the Mayor of Louisville only threatened to do to On Fire Christian Center, and this Court enjoined as unconstitutional under the First Amendment, Governor Beshear actually did to Plaintiffs. Governor Beshear dispatched the Kentucky State Police to issue notices to Plaintiffs that their attendance at church was a criminal act, record the license plates of all vehicles in the Church’s parking lot, and sent letters to all vehicle owners that they must self-quarantine and engage in certain government-supervised behaviors for 14 days or be subject to further sanction. (V.Compl. ¶¶ 2, 4, 43–55.)
Plaintiffs pray unto this Court to issue a TRO restraining and enjoining the Commonwealth from similarly enforcing, attempting to enforce, threatening to enforce, or otherwise
2

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requiring compliance with any prohibition on religious gatherings as against Plaintiffs. Plaintiffs do not seek, at this emergent stage of the proceedings, to undermine the entirety of the Commonwealth’s efforts to prevent the spread of COVID-19 in Kentucky. Plaintiffs merely seek to be free from the unconstitutional application of the GATHERING ORDERS in such a way that they are threatened with criminal sanctions and mandatory, household-wide quarantines, risk loss of their occupations, and suffer criminal penalties for simply going to church. Absent emergency relief from this Court, Governor Beshear and the State Police will continue to threaten Plaintiffs with criminal sanctions and other penalties, including this Sunday, by targeting Plaintiffs’ religious gatherings for discriminatory treatment.
As shown in the Verified Complaint filed contemporaneously herewith, notice and an opportunity to respond to this lawsuit cannot be effectuated, and attempts would be futile, prior to this Sunday’s worship activities at the Church, when the Commonwealth will again interfere with the constitutional liberties of Plaintiffs absent a temporary restraining order from this Court. (V.Compl. ¶¶ 86–88.) Approximately 40 hours before filing this lawsuit, Plaintiffs’ counsel wrote to Governor Beshear and other Commonwealth officials by e-mail seeking their assurance that the Commonwealth would cease enforcing its prohibitions of religious gatherings, but received no response, even after attempts at follow up by telephone. (V.Compl. ¶ 86.)
MEMORANDUM OF LAW To obtain a TRO or PI, Plaintiffs must demonstrate they have a strong likelihood of success on the merits, that they will suffer irreparable injury absent the order, that the balance of the equities favors the order, and that the public interest is served by the Court’s issuing the order. See Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007); EMW Women’s Surgical Ctr., P.S.C. v. Beshear, No. 3:19-cv-178-DJH, 2019 WL 1233575, *1 (W.D. Ky. Mar. 15, 2019) (identifying same four factors for deciding TRO and PI motions).As shown herein, Plaintiffs easily satisfy each
3

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of these elements factually and legally. (Plaintiffs hereby incorporate by reference the allegations of Plaintiffs’ Verified Complaint, filed contemporaneously herewith, as their statement of facts in support of their TRO and PI motion.)
PLAINTIFFS ARE SUBSTANTIALLY LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIM THAT THE COMMONWEALTH’S APPLICATION OF THE GATHERING ORDERS IS UNCONSTITUTIONAL AND SHOULD BE RESTRAINED.
The Commonwealth’s Unconstitutional Application of the GATHERING ORDERS Restricts Plaintiffs’ First Amendment Rights to Speech and Assembly and Should Be Restrained. 1. The Commonwealth’s unconstitutional application of the
GATHERING ORDERS discriminates against Plaintiffs’ speech rights and rights to assemble on the basis of content. “Content-based laws—those that target speech on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling government interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992) (same). “Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both distinctions are drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.” Reed, 135 S. Ct. at 2227 (emphasis added). Put simply, the Supreme Court handed down a firm rule: laws that are content based on their face must satisfy strict scrutiny. Id. Importantly, this firm rule mandating strict scrutiny of facially content-based restrictions of speech applies regardless of the government’s alleged purpose in enacting the law, even if the alleged purpose arises from a time of purported emergency. See id. (“On its face, the [law] is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the [law] to determine whether it is subject to strict
4

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scrutiny.”) In so holding, the Court rejected the lower court’s rationale that the alleged purpose behind enacting the content-based law can justify subjecting it to diminished constitutional protection. Id. “[T]his analysis skips the crucial first step . . . determining whether the law is content neutral on its face.” Id. at 2228. The answer to that question, the Reed Court said, is dispositive of the level of scrutiny applicable to the regulation of speech. Id. “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, contentneutral justification, or lack of animus toward the ideas contained in the regulated speech.” Id. (emphasis added). “[A]n innocuous justification cannot transform a facially content-based law into one that is content neutral.” Id. “Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.” Id. at 2229.
Thus, content-based laws must satisfy strict scrutiny, regardless of any purported justification the Commonwealth may assert. Reed, 135 S. Ct. at 2229. “Because the [law] imposes content-based restrictions on speech, those provision can stand only if they survive strict scrutiny.” Id. at 2231. There are no exceptions to this rule.1 Indeed, the notion that a content-based restriction on speech is presumptively unconstitutional is “so engrained in our First Amendment jurisprudence that last term we found it so ‘obvious’ as to not require explanation.” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115–16 (1991). “Regulations that permit the Government to discriminate on the basis of the content of the message

1

The concurring Justices confirm the concrete nature of the rule. See, e.g., Reed, 135 S. Ct.

at 2234 (Breyer, J., concurring) (noting that under the majority’s rule, a finding of content

discrimination is “as an automatic strict scrutiny trigger.” (emphasis added)); id. at 2236

(Kagan, J., concurring in the judgment) (“Says the majority, when laws single out specific subject

matter, they are facially content based; and when they are facially content based, they are

automatically subject to strict scrutiny.” (emphasis added)).

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cannot be tolerated under the First Amendment.” Id. at 116. Furthermore, “[i]t is rare that a regulation restricting speech because of its content will ever be permissible.” United States v. Playboy Entm’t Grp., 529 U.S. 803, 818 (2000). The burden is on the Commonwealth to prove it can satisfy strict scrutiny, and it cannot meet that burden.
This Court need look no further than the text of the GATHERING ORDERS and their application to determine that they are content-based restrictions on constitutionally protected liberties. The GATHERING ORDERS purport to prohibit “all mass gatherings,” meaning any activity “that brings together groups of individuals,” except “where large numbers of people are present” for the “normal operations” of many types of businesses and services. (V.Compl. ¶ 24– 26, EX. D.) The GATHERING ORDERS then go further, creating 19 expansive categories of commercial and other non-religious entities that are exempted from any prohibition against large numbers of people, including liquor, warehouse, and supercenter stores. (V.Compl. ¶ 31–33, EX. F.) Thus, the Commonwealth found 19 categories of businesses for which large numbers of people may gather without restraint, but expressly prohibited the constitutionally protected assemblies or “gatherings” of “faith-based” groups. The Sixth Circuit has noted that restrictions are “undeniably content-based” when the government establishes a system where “some types of [speech] are extensively regulated while others are exempt from regulation.” H.D.V.Greektown, LLC v. City of Detroit, 568 F.3 609, 622 (6th Cir. 2009) (emphasis added) (quoting Solantic, LLC v. City of Neptune Beach, 410 F.3 1250, 1263 (11th Cir. 2005)). The GATHERING ORDERS and their application do precisely this. The Commonwealth has targeted “faith-based” gatherings, prohibited Plaintiffs from engaging in such gatherings, and threatened them with criminal sanctions and self-quarantine orders for engaging in such gatherings, but permits gathering at liquor, warehouse, and supercenter stores. That is a textbook content-based restriction
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on Plaintiffs’ constitutionally protected activities. It must therefore satisfy strict scrutiny, which it plainly cannot do. (See infra section I.D.)
2. The unconstitutional application of the GATHERING ORDERS represents an unconstitutional prior restraint.
It is axiomatic that prior restraints are highly suspect and disfavored. See Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992). Indeed, “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantham Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (emphasis added). “Because a censor’s business is to censor, there inheres the danger that he may well be less responsive than a court . . . to the constitutionally protected interests in free expression.” Freedman v. Maryland, 380 U.S. 51, 57-58 (1965).
It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. [A] law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition. Watchtower Bible & Tract Soc’y of N.Y. v. Vill. of Stratton, 536 U.S. 150, 165–66 (2002) (emphasis added); see also Lovell v. City of Griffin, 303 U.S. 444, 451-52 (1938) (“While this freedom from previous restraint . . . upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the [First Amendment].”); Carroll v. President & Comm’r Princess Anne, et al., 393 U.S. 175, 181 (1968) (“Prior restraint upon speech suppresses the precise freedom which the First Amendment sought to protect from abridgment.” (emphasis added)). The Supreme Court has consistently permitted facial challenges to prior restraints without requiring a plaintiff to show that there are no conceivable set of facts where the application of the particular government regulation might or would be constitutional. See, e.g., Horton v. City of St.
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Augustine, 272 F.3d 1318, 1331–32 (11th Cir. 2001) (“the Supreme Court itself in Salerno acknowledged [that prior restraints are the] exception to the ‘unconstitutional-in-everyconceivable-application’ rule”) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)); see also KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner, 647 F. Supp. 2d 857, 889 (N.D. Ohio 2009) (noting First Amendment challenges are an exception to the Salerno ‘unconstitutional in all applications’ rule).
Additionally, as numerous federal courts have recognized, total prohibitions on speech represent prior restraints. See, e.g., Howard v. City of Jacksonville, 109 F. Supp. 2d 1360, 1364 (M.D. Fla. 2000) (“This Court also finds that . . . moratoria are governed by prior restraint analysis in the same manners as permitting schemes.”); D’Ambra v. City of Providence, 21 F. Supp. 2d 106, 113–14 (D.R.I. 1998) (moratorium on protected expression that includes no indication of ending is a complete prohibition and invalid prior restraint); ASF, Inc. v. City of Seattle, 408 F. Supp. 2d 1102, 1108 (W.D. Wash. 2005) (total prohibitions on protected expression fail prior restraint analysis). The GATHERING ORDERS are such a prior restraint.
The Sixth Circuit has explicitly noted that it “presume[s] prior restraints are unconstitutional.” Novak v. City of Parma, 932 F..3d 421, 432 (6th Cir. 2019). One of the most abhorrent systems of prior restraint is “a procedure that places unbridled discretion in the hands of a government official and might result in censorship.” Weinberg v. City of Chicago, 310 F.3d 1029, 1045 (7th Cir. 2002); see also East Brooks Books, Inc. v. Shelby Cnty., 588 F.3d 360, 369 (6th Cir. 2009) (“Constitutional invalidity of prior restraints may result from . . . the risk of censorship association with the vesting of unbridled discretion in government officials.”). There can be no question that the GATHERING ORDERS “forbid protected speech in advance” of Plaintiffs’ church services, Novak, 932 F.3d at 432, and thus constitute a prior restraint. Id. More
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problematically, however, is that the GATHERING ORDERS place unbridled discretion in the hands of Commonwealth officials, and are thus unconstitutional.
3. The GATHERING ORDERS unconstitutionally vest unbridled discretion in the hands of Commonwealth officials, which they have used to discriminate against Plaintiffs’ religious gatherings.
The danger inherent in the viewpoint discriminatory policies and application here is only increased by the unbridled discretion given to government officials. “When a city allows an official to ban [speech] in his unfettered control, it sanctions a device for suppression of free communication of ideas.” Saia v. People of State of N.Y., 334 U.S. 558, 562 (1948). “[E]ven if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or permit from a government official in that official’s boundless discretion.” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 764 (1988) (emphasis added). The danger of viewpoint discrimination is “at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official.” Id. at 763. “[T]he mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.” Id. at 757. This is precisely why “[t]he First Amendment prohibits the vesting of such unbridled discretion in a government official.” Forsyth Cnty., 505 U.S. at 133 (emphasis added).
Binding precedent from the Sixth Circuit also mandates that prior restraints not impermissibly vest County officials with unbridled discretion. See, e.g., United Food & Comm. Workers Union, Local 1099 v. Sw. Ohio Reg. Transit Auth., 163 F.3d 341, 359 (6th Cir. 1998) (“a statute or ordinance offends the First Amendment when it grants a public official unbridled discretion such that the official’s decision to limit speech is not constrained by objective criteria
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but may rest on ambiguous and subjective reasons”); id. (“We will not presume that the public official responsible for administering a [prior restraint] will act in good faith and respect a speaker’s First Amendment rights”); East Brooks Books, 588 F.3d at 369 (holding a prior restraint would not pass constitutional muster when it lacks “explicit and objective criteria”); Am. Freedom Defense Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 893 (6th Cir. 2012) (“[O]rdinances must contain precise and objective criteria on which [officials] must make their decisions; an ordinance that gives too much discretion to public officials is invalid”); Polaris Amphitheater Concerts v. City of Westerville, 267 F.3d 503, 509 (6th Cir. 2001) (“in the absence of narrowly drawn, reasonable and definite standards for the officials to follow, the law invites opportunities for the unconstitutional suppression of speech” (internal quotation marks and citations omitted)).
Here, the GATHERING ORDERS lack specific and definite checks on the discretion of government authorities. “[T]he success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so.” Forsyth Cnty., 505 U.S. at 133 n.10. Here, the GATHERING ORDERS’ vesting of unbridled discretion is not only unconstitutional because there are no checks on the Commonwealth, but is even worse because the Commonwealth has actually exercised its unchecked discretion to prohibit religious gatherings while not prohibiting similar non-religious gatherings. Nothing in the GATHERING ORDERS limits the authority of Commonwealth officials to target church services or religious gatherings that are abiding by social distancing and personal hygiene practices while not equally targeting non-religious gatherings doing the same. In fact, that is precisely what the GATHERING ORDERS demand of Commonwealth officials. The
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entire scheme established by the GATHERING ORDERS enshrines the type of “ambiguous and subjective reasons” the doctrine of unbridled discretion was intended to prevent. United Food & Comm. Workers, 163 F.3d at 359. Indeed, “the danger of censorship and of abridgement of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975). The GATHERING ORDERS have instituted a total prohibition on “faith-based” gatherings throughout the entire forum of the Commonwealth without any standards or objective criteria for why Plaintiffs’ religious gatherings should be treated differently than the gathering of large numbers of people occurring daily at liquor, warehouse, and supercenter stores. The First Amendment demands more, and so should this Court.
The Commonwealth’s Unconstitutional Application of the GATHERING ORDERS Violates Plaintiffs’ First Amendment Rights to Free Exercise of Religion and Should Be Restrained. Though the Commonwealth might not view church attendance as fundamental to the religious beliefs of Plaintiffs, its opinion is irrelevant to the protections afforded to Plaintiffs’ sincerely held religious beliefs. Plaintiffs’ “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merits First Amendment protection.” Thomas v. Rev. Bd. of Ind. Emp. Security Div., 450 U.S. 707, 714 (1981). Indeed, “[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (emphasis added). “The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.” Id. at 543. As this Court just noted, prohibiting Plaintiffs from attending church services where other non-religious gatherings
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are permitted under similar circumstances “violat[es] the Free Exercise Clause beyond all question.” On Fire Christian Ctr., 2020 WL 1820249, at *6 (emphasis added). Even in a time of crisis or disease, see Jacobson v. Massachusetts, 197 U.S. 11 (1905), the First Amendment does not evaporate. Indeed, “even under Jacobson, constitutional rights still exist. Among them is the freedom to worship as we choose.” On Fire Christian Ctr., 2020 WL 1820249, at *8; see also Terminiello v. City of Chicago, 337 U.S. 1, 27, 31, 38 (1949).
1. Burdens on sincerely held religious beliefs are subject to strict scrutiny if neither neutral nor generally applicable.
As a matter of black letter law, “a law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice.” Lukumi, 508 U.S. at 531. But, as here, “[a] law failing these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Id. at 532. The GATHERING ORDERS are neither neutral nor generally applicable and therefore must satisfy strict scrutiny.
2. The Commonwealth’s application of the GATHERING ORDERS is neither neutral nor generally applicable. a. The GATHERING ORDERS are not neutral.
“Although a law targeting religious beliefs as such is never permissible . . . if the object of the law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.” Lukumi, 508 U.S. at 533. To determine neutrality, courts look to the text of the law “for the minimum requirement of neutrality is that a law not discriminate on its face.” Id. But, “[f]acial neutrality is not determinative. The Free Exercise Clause extends beyond facial discrimination [and] forbids subtle departures from neutrality.” Id. at 534. This is so because, as here, “[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with facial neutrality.” Id. For the First Amendment prohibits hostility that is “masked,
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as well as overt.” Id. The GATHERING ORDERS are not facially neutral, and even if they were, they represent subtle departures from neutrality by treating Plaintiffs’ religious or “faith-based” gatherings differently than similar non-religious gatherings.
The GATHERING ORDERS fail even cursory facial examination. They expressly target “faith-based” gatherings for disparate treatment. (V.Compl. ¶ 24, EX. D.) Yet, in the very same text of the GATHERING ORDERS, businesses such as liquor, warehouse, and supercenter stores exempted from the broad prohibitions. (V.Compl. ¶¶ 32–33, EX. F.) As this Court just noted, when the government “has targeted religious worship” for disparate treatment – such as parking in a parking lot of Maryville Baptist Church – while “not prohibit[ing] parking in parking lots more broadly – including, again, the parking lots of liquor stores,” it simply fails the test of neutrality. On Fire Christian Ctr., 2020 WL 1820249, at *6. Gov. Beshear expressly targets churches and churchgoers, threatening criminal prosecution, sending State Police, and issuing notices of quarantine to people parked in a church parking lot for Sunday service, including drive-in only. At the same time, no similar action is directed to people who park in liquor store lots, gather in Walmart, or freely move about in a long list of secular businesses.
b. The GATHERING ORDERS are not generally applicable.
In determining general applicability, the courts focus on disparate treatment of similar conduct. Lukumi, 508 U.S. at 542. “All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice.” Id. The textbook operation of a law that is not generally applicable is one where “inequality results” from the government “decid[ing] that the governmental interests it seeks to advance are worthy of being pursued only against conduct with religious motivation.” Id. at 543 (emphasis added). In Lukumi, the Supreme Court held that a law “fall[s] well below the minimum standard necessary to
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protect First Amendment rights” when the government “fail[s] to prohibit nonreligious conduct that endangers these interests in a similar or greater degree” than the prohibited religious conduct. Id. (emphasis added).
This is precisely the effect of the GATHERING ORDERS. First, they purport to prohibit “all mass gatherings,” but define “mass gatherings” to exclude large gatherings of people at numerous businesses and other non-religious entities. (V.Compl. ¶ 24–26, EX. D.) Their text makes it plain that “faith-based” gatherings are prohibited, large numbers of people may gather at liquor, warehouse, and supercenter stores, as but a few examples. (V.Compl. ¶¶ 31–33, EX. F.) Non-religious large gatherings at an expansively defined 19 categories of businesses are permitted if social distancing and personal hygiene guidelines are followed—“when possible” and to the extent “practicable.” (V.Compl. ¶¶ 28–33, EXS. E, F.) But “faith-based” gatherings are still prohibited, even if social distancing and personal hygiene guidelines are followed religiously. If large gatherings at liquor, warehouse, and supercenter stores are not prohibited, even though endangering citizens (or not) to an equal degree, then it is obvious “faith-based” gatherings have been targeted for discriminatory treatment. Such a blatant discriminatory application of the GATHERING ORDERS “falls well below the minimum standard” the First Amendment demands. Lukumi, 508 U.S. at 543; see also On Fire Christian Ctr., 2020 WL 1820249, at *6 (holding that government regulation is not generally applicable when it targets religious gatherings with “orders and threats” but does not apply the same orders and threats to similar non-religious conduct). The GATHERING ORDERS are not generally applicable.
The GATHERING ORDERS Violate the Kentucky Religious Freedom Restoration Act and Their Enforcement Should Be Restrained. The Kentucky Religious Freedom Restoration Act, Ky. Rev. Stat. § 446.350 [hereinafter KRFRA], prohibits the government from substantially burdening a person’s exercise of religion.
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If the government does burden religious exercise, it must demonstrate “by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.” Id.
1. The exercise of Plaintiffs’ religion requires them not to forsake the assembling of themselves together.
KRFRA notes that its protection of the “freedom of religion” permits Plaintiffs “[t]he right to act or refuse to act in a manner motivated by a sincerely held religious belief.” Plaintiffs have adequately demonstrated they have sincerely held religious beliefs, rooted in Scripture’s commands (e.g., Hebrews 10:25), that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis. (V.Compl. ¶¶ 123, 199, 226, 238.) And, as this Court has recognized, “many Christians take comfort and draw strength from Christ’s promise that ‘where two or three are gathered together in My name, there am I in the midst of them.’” On Fire Christian Ctr., 2020 WL 1820249, at *8 (quoting Matthew 18:20). Indeed, the Court explained, “the Greek work translated church . . . literally means assembly.” Id.
2. The GATHERING ORDERS substantially burden Plaintiffs’ exercise of religion.
The GATHERING ORDERS place a substantial burden on Plaintiffs’ right to religious freedom and the exercise of their sincerely held religious beliefs. KRFRA defines a “burden” as “indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.” (Emphasis added.) There can be no question that the GATHERING ORDERS, on their face and as applied by the Commonwealth, impose direct penalties on Plaintiffs for the act of attending church in conformance with their sincerely held religious beliefs. On Easter Sunday, in accordance with the Governor’s directives under the GATHERING ORDERS, the Kentucky State Police stationed themselves outside of Maryville
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Baptist Church, intimidated worshippers, and assessed direct penalties on the owners of cars in the parking lot. (V.Compl. ¶¶ 43–51, EXS. I, J.) Plaintiffs received the Commonwealth’s NOTICE on their vehicles that threatened them with criminal sanctions for simply parking in the parking lot of Maryville Baptist Church. (Id.) The NOTICE informed Plaintiff Dr. Roberts and other recipients that they were subject to criminal penalties, further enforcement actions by the health officials, and mandated self-quarantine for the act of going to church. (Id.)
In addition to the NOTICE provided by the State Police, Plaintiff Dr. Roberts and others received letters from the Commonwealth informing them that they were required to selfquarantine, to take their temperatures daily and report to the health department, that they were required to sign a document “outlining” their responsibilities to the Commonwealth, and that failure to do so would be grounds for further criminal or civil action. (V.Compl. ¶¶ 52–55, EX. K.) If these government-issued dictates do not constitute a substantial burden, then the term has no meaning. Criminal sanctions, self-quarantine, and government-issued invitations to self-criticize before the politburo for the mere act of going to church are quintessential burdens on religious freedom, and why laws like KRFRA are enacted.
The Commonwealth’s Application of the GATHERING ORDERS Cannot Withstand Strict Scrutiny and Should Be Restrained. Because the GATHERING ORDERS and the targeting of churches are a content-based restriction on Plaintiffs’ speech and assembly rights, are neither neutral nor generally applicable, and substantially burden Plaintiffs’ sincerely held religious beliefs (see supra sections I.A–C), there is no question they must survive strict scrutiny. The Commonwealth is therefore subject to “the most demanding test known to constitutional law.” Russell v. Lundergan-Grimes, 784 F.3d 1037, 1050 (6th Cir. 2015) (quoting City of Boerne v. Flores, 521 U.S. 507, 534 (1997)). In fact, “it is the rare case in which a . . . restriction withstands strict scrutiny.” Reed v. Town of
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Gilbert, 135 S. Ct. 2218, 2236 (Kagan, J., concurring) (quoting Williams-Yulee v. Florida Bar, 575 U.S. 433, 444 (2015)) (emphasis added). See also Burson v. Freeman, 504 U.S. 191, 200 (1992) (“we readily acknowledge that a law rarely survives such scrutiny”). Indeed, “strictscrutiny review is strict in theory but usually fatal in fact.” Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1984) (emphasis added); see also Ysura v. Pocatello Educ. Ass’n, 555 U.S. 353, 366 (2009) (Breyer, J., concurring) (“strict scrutiny” is “a categorization that almost always proves fatal to the law in question”). This is not that rare case, and the mandatory application of strict scrutiny here condemns the GATHERING ORDERS to their constitutional grave.
1. The Commonwealth’s unconstitutional application of the GATHERING ORDERS and discriminatory treatment of “faith-based” gatherings is not supported by a compelling interest.
When “[a] speech-restrictive law with widespread impact” is at issue, “the government must shoulder a correspondingly heavier burden and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2472 (2018) (emphasis added). Here, because the GATHERING ORDERS infringe upon Plaintiffs’ free speech rights, the government “must do more than simply posit the existence of the disease sought to be cured. It must demonstrate that the recited harms are real, not merely conjectural.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994); see also Edenfield v. Fane, 507 U.S. 761, 770 (1993) (regulation of speech must still demonstrate that the alleged harm is not “mere speculation or conjecture”); Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 841 (1978) (same). This is so because “[d]eference to [the government] cannot limit judicial inquiry when First Amendment rights are at stake.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 843 (1978).
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To be sure, efforts to contain the spread of a deadly disease are “compelling interests of the highest order.” On Fire Christian Ctr., 2020 WL 1820249, at *7. Plaintiffs do not doubt the sincerity of the Commonwealth’s assertion of such an interest. But where the Commonwealth permits regular large gatherings of persons for commercial purposes, while expressly prohibiting Plaintiffs’ “faith-based” gatherings, the government’s assertions of a compelling interest are substantially diminished. Indeed, the GATHERING ORDERS “cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002) (emphasis added). See also Reed v. Town of Gilbert, 135 S. Ct. 2218, 2232 (2015) (same). Indeed, where the government creates a large system of exceptions, such as the Commonwealth’s system of exempted businesses where people can gather without limit (VC ¶30), the Supreme Court has recognized that such exceptions “can raise ‘doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker.’” Williams-Yulee v. Florida Bar, 575 U.S. 433, 448 (2015) (quoting Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (2011)). The GATHERING ORDERS thus “have every appearance of a prohibition that society is prepared to impose upon [Plaintiffs’ religious gatherings] but not on itself.” The Florida Star v. B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J., concurring). In fact, the GATHERING ORDERS suggest that the Commonwealth is prepared to accept the risk of gatherings at liquor, warehouse, and supercenter stores, but cannot stomach Plaintiffs’ assembly for a church service, even with the social distancing that is good enough for others. The Commonwealth cannot permit broad swaths of gatherings that carry the same (if not greater) risk than those posed by Plaintiffs’ church services and claim constitutional protection. “Such a prohibition does not protect an interest of the highest order.” Id.
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2. The Commonwealth cannot satisfy its burden of proving narrow tailoring because the GATHERING ORDERS are not the least restrictive means.
Plaintiffs “must be deemed likely to prevail unless the government has shown that [Plaintiffs’] proposed less restrictive alternatives are less effective than enforcing the act.” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (emphasis added). Indeed, to prove narrow tailoring, the Commonwealth is required to demonstrate that there are no less restrictive means capable of achieving its desired result. See, e.g., Boos v. Berry, 485 U.S. 312, 329 (1988) (when content-based restrictions on speech are analyzed under strict scrutiny, an ordinance “is not narrowly tailored [where] a less restrictive alternative is readily available”); Ward v. Rock Against Racism, 491 U.S. 781, 798 n.6 (1989) (noting that under “the most exacting scrutiny” applicable to content-based restrictions on speech, the government must employ the least restrictive alternative to pass narrow tailoring). The Commonwealth cannot do so. The Commonwealth bears the burden of demonstrating narrow tailoring as a matter of law, a burden it cannot satisfy here. Further, the Commonwealth has not and cannot demonstrate that it seriously undertook to consider other lessrestrictive alternatives and ruled them out for good reason. Indeed, as the orders from other states plainly demonstrate, faith-based and religious gatherings can be—and have been—exempted from such draconian prohibitions or at least treated on an equal basis with other businesses and gatherings that may continue to operate. As such, the Commonwealth utterly fails to demonstrate narrow tailoring.
a. The Commonwealth bears the burden of demonstrating narrow tailoring.
Even on a motion for TRO or PI, the Commonwealth unquestionably bears the burden of demonstrating that the GATHERING ORDERS are narrowly tailored. As the Supreme Court has held: “the burdens at the preliminary injunction stage track the burdens at trial.” Gonzales v. O
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Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). As such, on a preliminary injunction motion, the government—not the movant—bears the burden of proof on narrow tailoring, because the government bears that burden at trial. Ashcroft, 542 U.S. at 665 (on preliminary injunction motion, “the burden is on the government to prove that the proposed alternatives will not be as effective as the challenged statute.” (emphasis added)).
The Commonwealth indisputably bears the burden of proving narrow tailoring at trial. See, e.g., United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.”); id. at 2540 (“To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier” (emphasis added)). Thus, the Commonwealth also bears—and falls woefully short of meeting—the burden of proving narrow tailoring here. Gonzales, 546 U.S. at 429; Ashcroft, 542 U.S. at 665.
b. The Commonwealth has not demonstrated that it seriously considered less speech restrictive alternatives and ruled them out for good reason.
The Commonwealth also flunks the narrow tailoring strict scrutiny test for yet another, even more compelling reason. In connection with its narrow tailoring burden, the Commonwealth must show that it “seriously undertook to address the problem with less intrusive tools readily available to it,” meaning that it “considered different methods that other jurisdictions have found effective.” McCullen v. Coakley, 134 S. Ct. 2518, 2539 (2014) (emphasis added). “To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 2540. Thus, the Commonwealth “would have to show either that substantially less-restrictive alternatives were tried and failed, or that the alternatives
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were closely examined and ruled out for good reason.” Bruni v. City of Pittsburgh, 824 F.3d 353, 370 (3d Cir. 2016) (emphasis added).
The Commonwealth utterly fails this test. The Commonwealth tried nothing else. It considered nothing else but a complete prohibition. The Commonwealth jumped straight to a purported ban on “all mass gatherings,” and proclaimed that “faith-based” gatherings were included among the prohibition. (V.Compl. ¶¶ 24–26, EX. D.) But the Commonwealth drove a Mack Truck through its prohibition by expansively exempting numerous businesses and nonreligious entities, such as liquor, warehouse, and supercenter stores. (V.Compl. ¶¶ 26–33, EXS. D–F.) The Commonwealth has not and cannot state why or how gathering with a large number of persons at a warehouse or supercenter store is any less “dangerous” to public health than attending a worship service, yet it exempted the non-religious gatherings and prohibited Plaintiffs’ church services. Quite simply, it appears the Commonwealth “burn[ed] the house to roast the pig” by imposing draconian prohibitions “not reasonably restricted to the evil with which it is said to deal.” Butler v. Michigan, 352 U.S. 380, 383 (1957). The Commonwealth tried nothing else, and for that reason alone, fails the narrow tailoring analysis required under McCullen.
c. The numerous other COVID-19 orders specifically exempting religious gatherings or treating them equally to non-religious gatherings demonstrates less restrictive and nondiscriminatory alternatives exist.
Even if the Commonwealth could substantiate compelling interests for the GATHERING ORDERS’ discriminatory application to “faith-based” or religious gatherings, which it cannot, the Commonwealth could not meet its burden of showing that the GATHERING ORDERS are narrowly tailored. “It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.” Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). There must be a ‘fit between the . . . ends and the means chosen to accomplish
21

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those ends.’” Sorrell v. IMS Health, Inc., 564 U.S. 552, 572 (2011). While “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity, government may regulate the area of First Amendment freedoms only with narrow specificity.” Ward, 491 U.S. at 794.
The Supreme Court has clearly established that “[t][he government may not regulate a [‘mode of speech’] based on hostility—or favoritism—towards the underlying message expressed.” R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992). The GATHERING ORDERS impose discriminatory and disparate treatment on “faith-based” gatherings that are not applied to similar or larger non-religious gatherings. Where other, content-neutral alternatives exist, such as here, government cannot fulfill its narrow tailoring burden by ignoring those alternatives. See id. at 395 (“The existence of adequate content-neutral alternatives thus ‘undercut[s] significantly’ any defense of such a statute, casting considerable doubt on the government’s protestations that the ‘asserted justification is in fact an accurate description of the purpose and effect of the law.’” (citations omitted)).
As shown in the Verified Complaint, the Commonwealth has ignored numerous other, less restrictive means of achieving its purported interest. One option tried successfully in other jurisdictions is to exempt religious gatherings from gathering prohibitions altogether. The States of Florida and Indiana have declared religious gatherings essential activities which may continue. (V.Compl. ¶¶ 70-71, EXS. L, M.) The Commonwealth has refused to consider or attempt it. Another less restrictive alternative would be to allow churches to continue in-person services provided they agree to maintain adequate social distancing and personal hygiene practices. Arizona, Arkansas, Alabama, and Connecticut have all permitted such an exception for religious gatherings. (V.Compl. ¶¶ 72–75, EXS. N–Q.) Plaintiffs have demonstrated they already engage in
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the recommended social distancing and personal hygiene practices recognized by the Commonwealth as sufficient for non-religious gatherings (V.Compl. ¶¶ 56–63.) There is no justification for depriving Plaintiffs of the same benefit.
Indeed, as this Court has already exquisitely stated, the Commonwealth is unlikely to be able to demonstrate that it deployed the least restrictive means because the GATHERING ORDERS and their application
are “underinclusive” and “overbroad.” They’re underinclusive because they don’t prohibit a host of equally dangerous (or equally harmless) activities that the Commonwealth has permitted . . . . Those . . . activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is “essential,” so is [church]. On Fire Christian Ctr., 2020 WL 1820249, at *7 (emphasis added) (footnote omitted). Put simply, the Commonwealth’s failure to try other available alternatives that have worked and are working in other jurisdictions across the country demonstrates that it has not and cannot satisfy its burden to demonstrate that its actions are narrowly tailored. It thus fails strict scrutiny, and the TRO and PI are warranted. PLAINTIFFS HAVE SUFFERED, ARE SUFFERING, AND WILL CONTINUE TO SUFFER IRREPARABLE INJURY ABSENT A TRO AND PI RESTRAINING AND ENJOINING THE COMMONWEALTH. Governments are not empowered to create “First Amendment Free Zones” within their borders, like the Commonwealth has done here. See, e.g., Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (striking local government’s attempt to prohibit protected expression within a ”First Amendment Free Zone.”); United States v. Stevens, 559 U.S. 460, 470 (2010) (government in not empowered to create First Amendment free zones with respect to certain categories of speech). Saying that Plaintiffs may avoid irreparable injury by simply “watching church services online” while foregoing established constitutional rights is simply insufficient
23

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under the First Amendment. Indeed, “violations of First Amendment rights constitute per se irreparable injury,” G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 10799 (6th Cir. 1994), and it does not matter that such an injury could be—in the Commonwealth’s opinion— reduced by not following the dictates of Plaintiffs’ conscience and sincerely held religious beliefs because “even minimal infringements upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.” Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009).
Not only is the Commonwealth’s invitation for Plaintiffs to “stay home and watch church online” itself offensive and baseless as a matter of settled law, it also betrays the Commonwealth’s failure to understand that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Indeed, First Amendment violations are presumed to impose irreparable injury. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012); see also 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure §2948.1 (2d ed. 1995) (“When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” (emphasis added)).Thus, demonstrating irreparable injury in this matter “is not difficult. Protecting religious freedom was a vital part of our nation’s founding, and it remains crucial today.” On Fire Christian Ctr., 2020 WL 1820249, at *9 (emphasis added).
THE BALANCE OF THE EQUITIES WARRANTS A TRO AND PI. An injunction in this matter will protect the very rights the Supreme Court has characterized as “lying at the foundation of a free government of free men.” Schneider v. New Jersey, 308 U.S. 147, 151 (1939). The granting of a TRO and PI enjoining enforcement of the GATHERING ORDERS on Plaintiffs’ church services will impose no harm on the Commonwealth. “[T]here can be no harm to [the government] when it is prevented from enforcing an unconstitutional statute.” Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004).
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“[I]t is well established that the public has no interest in the enforcement of an unconstitutional law.” EMW Women’s Surgical Ctr. v. Meier, 373 F. Supp. 3d 807, 826(W.D. Ky. 2019). But for Plaintiffs, as noted above, “even minimal infringements upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.” Jones, 569 F.3d at 277. As such, there can be no comparison between the irreparable and unconscionable loss of First Amendment freedoms suffered by Plaintiffs absent injunctive relief and the non-existent interest the Commonwealth has in enforcing unconstitutional GATHERING ORDERS. Indeed, as this Court noted, absent a TRO, Plaintiffs “face an impossible choice: skip [church] service[s] in violation of their sincere religious beliefs, or risk arrest, mandatory quarantine, or some other enforcement action for practicing those sincere religious beliefs.” On Fire Christian Ctr., 2020 WL 1820249, at *9. The balance of the equities tips decidedly in Plaintiffs’ favor, and the TRO and PI should issue.
A TRO AND PI ARE IN THE PUBLIC INTEREST. “Injunctions protecting First Amendment freedoms are always in the public interest.” ACLU of Ill. v. Alvarez, 679 F.3d 583, 590 (7th Cir. 2012) (emphasis added); see also Elrod, 427 U.S. at 373. This protection is ipso facto in the interest of the general public because “First Amendment rights are not private rights [but] rights of the general public [for] the benefits of all of us.” Machesky v. Bizzell, 414 F.2d 283, 288–90 (5th Cir. 1969) (citing Time, Inc. v. Hill, 385 U.S. 374 (1967)). There is no “evidence that churches are less essential than every other business that is currently allowed to be open,” On Fire Christian Ctr., 2020 WL 1820249, at *9, and “the public has a profound interest in men and women of faith worshipping together [in church] in a manner consistent with their conscience.” Id. (emphasis added).
CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that the Court issue the TRO and PI as set forth in the Prayer for Relief in Plaintiffs’ Verified Complaint (V.Compl. at 48.)
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Respectfully submitted, s/ Horatio G. Mihet Mathew D. Staver* Horatio G. Mihet* Roger K. Gannam* Daniel J. Schmid * LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 (407) 875-1776 court@LC.org hmihet@LC.org rgannam@LC.org dschmid@LC.org Attorneys for Plaintiffs *Pro hac vice applications pending
26

 
 Case 3:20-cv-00278-DJH Document 9 Filed 04/18/20 Page 1 of 7 PageID #: 221

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MARYVILLE BAPTIST CHURCH, INC. and DR. JACK ROBERTS,

Plaintiffs,

v.

Civil Action No. 3:20-cv-278-DJH

ANDY BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky,

Defendant.

* * * * *

ORDER

Plaintiffs Maryville Baptist Church, Inc. and Dr. Jack Roberts filed this action on April 17,

2020, asserting various violations of the United States and Kentucky Constitutions arising from

executive orders issued by Kentucky Governor Andy Beshear in response to the COVID-19 crisis.

(Docket No. 1) The same day, Plaintiffs moved for a temporary restraining order and preliminary

injunction prohibiting enforcement of those orders. (D.N. 3) According to Plaintiffs, the orders

violate their rights under the First Amendment and the Kentucky Religious Freedom Restoration

Act by prohibiting “mass gatherings” that are “faith-based.” (See generally id.)

The restrictions in question are temporary measures imposed by the Commonwealth to

prevent spread of the novel coronavirus. (See D.N. 1-2; D.N. 1-3; D.N. 1-4; D.N. 1-5; D.N. 1-6;

D.N. 1-7) “All mass gatherings”—i.e., “any event or convening that brings together groups of

individuals”—are prohibited. This restriction includes, “but [is] not limited to, community, civic,

public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions;

fundraisers; and similar activities.” (D.N. 1-5, PageID # 66) None of the challenged orders limits

other avenues of group worship, such as drive-in, online, video or telephone conferencing,

Facebook, or broadcast radio or television. Nevertheless, Plaintiffs maintain that “[a]bsent

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emergency relief from this Court, Governor Beshear and the State Police will continue to threaten Plaintiffs with criminal sanctions and other penalties, including this Sunday, by targeting Plaintiffs’ religious gatherings for discriminatory treatment.” (D.N. 3, PageID # 179) After careful and expedited consideration of Plaintiffs’ complaint, motion, and attachments, the Court concludes that no temporary restraining order is warranted here.
I. Plaintiffs suggest at the outset of their complaint that this case be “considered related to” On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv-264-JRW (W.D. Ky.), for purposes of Local Rule 40.1(b). (D.N. 1, PageID # 1) Plaintiffs have not, however, moved for reassignment of this case to the district judge presiding over On Fire Christian Center, as provided by the relevant local rule, and the Court does not find that reassignment would be in the interests of justice. See LR 40.1(b). There are no parties in common, and the plaintiffs in the two cases challenge different actions by different government officials or entities. The undersigned will therefore proceed to consider the motion for temporary restraining order.
II. Pursuant to Federal Rule of Civil Procedure 65, [t]he court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. Fed. R. Civ. P. 65(b)(1). In determining whether to grant a temporary restraining order, the Court considers the same four factors applicable to a motion for preliminary injunction: (1) the movant’s
2

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likelihood of success on the merits; (2) whether the movant “would likely be permanently harmed absent the injunction; (3) whether the injunction would cause substantial harm to third parties; and (4) whether the injunction would serve the public interest.” McGirr v. Rehme, 891 F.3d 603, 610 (6th Cir. 2018) (citing S. Glazer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017)); see Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” O’Toole v. O’Connor, 802 F.3d 783, 788 (6th Cir. 2015) (quoting Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000)).
As a procedural matter, although the complaint mentions a “demand letter” sent to the governor’s general counsel and other state officials “[a]t approximately 9:00 P.M. E.D.T. on April 15, 2020” (D.N. 1, PageID # 25), Plaintiffs’ counsel have not “certifie[d] in writing any efforts made to give notice and the reasons why it should not be required,” in accordance with Rule 65(b). Fed. R. Civ. P. 65(b)(1)(B). According to the complaint, “[t]he failure of the Commonwealth’s officials to respond to Plaintiffs’ communication . . . shows that notice and an opportunity to respond to this lawsuit cannot be effectuated, and would be futile, prior to this Sunday’s worship activities at the Church.” (D.N. 1, PageID # 26) Likewise, the motion for temporary restraining order asserts that “notice and an opportunity to respond to this lawsuit cannot be effectuated, and attempts would be futile, prior to this Sunday’s worship activities at the Church” in light of the governor’s failure to respond to Plaintiffs’ demand letter. These allegations do not satisfy the rule’s certification requirement. See Fed. R. Civ. P. 65(b)(1)(B).
Nor do the materials submitted by Plaintiffs indicate a likelihood of success on the merits. Plaintiffs first argue that the Governor’s orders amount to unconstitutional restrictions on their rights to free speech and assembly. (D.N. 3, PageID # 180-87) Yet neither the complaint nor the
3

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motion identifies any speech that has been or will be restricted by the orders. Moreover, to support their argument that the orders “are content-based restrictions on constitutionally protected liberties,” Plaintiffs appear to mischaracterize the Commonwealth’s prohibition on gatherings. (D.N. 3, PageID # 182) The order in question states in no uncertain terms that “[a]ll mass gatherings are hereby prohibited.” (D.N. 1-5, PageID # 66) This prohibition applies not only to faith-based gatherings, but to “any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, . . . or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” (Id.) The “19 categories of businesses” allowed by subsequent order to continue operating are not, as Plaintiffs repeatedly suggest, exceptions to the prohibition on mass gatherings. (See D.N. 3, PageID # 182) Rather, by the plain terms of the March 19 Order, “[a]ll mass gatherings are . . . prohibited.” (D.N. 1-5, PageID # 66 (emphasis added))
Plaintiffs seek to compare in-person attendance at church services with presence at a liquor store or “supercenter store[].” (D.N. 3, PageID # 182; see also D.N. 1-10, PageID # 100-02 (declaration with photos depicting cars parked at Walmart and Kroger immediately following Maryville Baptist’s Easter services)) The latter, however, is a singular and transitory experience: individuals enter the store at various times to purchase various items; they move around the store individually—subject to strict social-distancing guidelines set out by state and federal health authorities (see D.N. 1-7)—and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose. (See D.N. 3, PageID # 191 (“The exercise of Plaintiffs’ religion requires them not to forsake the assembling of themselves together.”)) A more apt comparison, then, is a restaurant or
4

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entertainment venue—where patrons are gathered simultaneously for a longer period of time to eat and socialize—or a movie, concert, or sporting event, where individuals come together in a group in the same place at the same time for a common experience. And all such activities are temporarily prohibited. (See D.N. 1-3, PageID # 60; D.N. 1-4, PageID # 62; D.N. 1-5, PageID # 66)
Similarly unpersuasive is Plaintiffs’ contention that the orders violate their right to freely exercise their religion by discriminating against religious conduct. Again, the order temporarily prohibits “[a]ll mass gatherings,” not merely religious gatherings. (Id. (emphasis added)) Religious expression is not singled out. And further, contrary to Plaintiffs’ assertions, there are no identified exceptions to the prohibition on mass gatherings. (See, e.g., D.N. 3, PageID # 189 (arguing that “businesses such as liquor, warehouse, and supercenter stores [are] exempted from the broad prohibitions” on gatherings); id., PageID # 190 (arguing that the orders “purport to prohibit ‘all mass gatherings,’ but define ‘mass gatherings’ to exclude large gatherings of people at numerous businesses and other non-religious entities” (citing D.N. 1-5)))1
Finally, to the extent Plaintiffs argue that the orders violate the Kentucky Religious Freedom Restoration Act by substantially burdening the exercise of their sincerely held religious beliefs (see id., PageID # 190-92), the Court finds, based on the materials submitted by Plaintiffs, that the Governor will likely be able to meet the Act’s requirement of “clear and convincing evidence that [the government] has a compelling governmental interest in” the restrictions “and
1 In service of their argument, Plaintiffs make liberal use of the term “gather.” (See, e.g., DN. 3, PageID # 190) Merriam-Webster defines “gather” as “to come together in a body”; a “gathering” is an “assembly” or “meeting.” Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/gather (last visited Apr. 18, 2020, at 5:20 p.m.). These terms do not, as generally understood, encompass separate, uncoordinated shopping trips by unrelated individuals. Presumably, no coordinated gathering in a grocery or liquor store would be permitted under the temporary restrictions.
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has used the least restrictive means to further that interest.”2 Ky. Rev. Stat. § 446.350. Plaintiffs do not contend that the Commonwealth lacks a compelling governmental interest in restricting mass gatherings to prevent the spread of COVID-19. (See D.N. 3, PageID # 191-92) As to whether the Commonwealth has employed “the least restrictive means to further that interest,” Plaintiffs merely point to orders issued in other states that declared religious gatherings exempt from massgathering prohibitions.3 (Id., PageID # 197-99) They offer no evidence that such exemptions are equally effective in preventing the spread of the disease. Cf. Reno v. ACLU, 521 U.S. 844, 874 (1997) (explaining that a burden on speech “is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve”). Given that COVID-19 is widely understood to be transmitted through person-to-person contact, including persons with and without symptoms of illness, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 18, 2020, at 6:39 p.m.), Beshear will likely be able to demonstrate that restricting large in-person gatherings is the least restrictive means of accomplishing the Commonwealth’s objective.
In sum, Plaintiffs have not demonstrated a likelihood of success on the merits. And because their constitutional and KRFRA claims are unlikely to succeed, they also have not demonstrated that they are likely to suffer permanent and irreparable injury absent issuance of a temporary restraining order. See McGirr, 891 F.3d at 610; O’Toole, 802 F.3d at 792. Meanwhile, a temporary
2 The Court notes that the Kentucky Religious Freedom Restoration Act is largely untested in the courts and that its enforcement mechanism is unclear. See Ermold v. Davis, 936 F.3d 429, 441-42 & nn.1-2 (6th Cir. 2019) (Bush, J., concurring); Ruplinger v. Louisville/Jefferson County Metro Government, No. 3:19-cv-583-DJH-RSE (W.D. Ky. Mar. 18, 2020), ECF No. 19 (observing that “[t]here is no controlling precedent regarding [the KRFRA] in the decisions of the Supreme Court of Kentucky or the Court of Appeals of Kentucky” and certifying questions to Kentucky Supreme Court regarding availability of qualified immunity for violations of KRFRA). 3 Plaintiffs address the “least restrictive means” requirement in the context of their First Amendment claims, not their KRFRA claim. (See D.N. 3, PageID # 195-99)
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restraining order allowing large in-person gatherings would substantially harm third parties by facilitating the spread of COVID-19, and the public interest thus does not favor a temporary restraining order. See McGirr, 891 F.3d at 610; O’Toole, 802 F.3d at 792. Accordingly, and the Court being otherwise sufficiently advised, it is hereby
ORDERED as follows: (1) Plaintiffs’ Motion for Temporary Restraining Order (D.N. 3) is DENIED. (2) This matter will be set for a telephonic status conference by subsequent order. During the conference, the Court will set an expedited briefing and hearing schedule on the motion for preliminary injunction.
April 18, 2020
David J. Hale, Judge United States District Court
7

 
 Case 3:20-cv-00278-DJH-RSE Document 17 Filed 04/24/20 Page 1 of 4 PageID #: 254

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MARYVILLE BAPTIST CHURCH, INC., )

and DR. JACK ROBERTS,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity as )

Governor of the Commonwealth of Kentucky, )

)

Defendant.

)

CASE NO. 3:20-cv-00278-DJH

PLAINTIFFS’ EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL AND SUPPPORTING MEMORANDUM OF LAW
Plaintiffs, MARYVILLE BAPTIST CHURCH, INC. (“Maryville Baptist Church” or the “Church”), and DR. JACK ROBERTS (“Dr. Roberts”), pursuant to Local Rule 7.1 and Federal Rule of Appellate Procedure 8(a)(1)(C), and on an emergency basis, move the Court for an injunction pending appeal of this Court’s April 18, 2020 Order (ECF 9), which is the subject of Plaintiffs’ Notice of Appeal to the Sixth Circuit (ECF 16) filed contemporaneously herewith, in the form of the proposed order attached hereto.
MEMORANDUM OF LAW Plaintiffs’ have appealed to the Sixth Circuit from this Court’s April 18, 2020 Order (ECF 9) denying Plaintiffs’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction (ECF 3, Plaintiffs’ “TRO/PI Motion”). Although the Order verily denied Plaintiffs’ motion as to the requested temporary restraining order (TRO) (Order 7), and such denials are generally not appealable, Plaintiffs have appealed the TRO denial as an effective denial of their motion as to the requested preliminary injunction (PI) because the Court based its denial primarily on the likelihood of success and irreparable harm determinations common to both TRO and PI

Case 3:20-cv-00278-DJH-RSE Document 17 Filed 04/24/20 Page 2 of 4 PageID #: 255
motions. See Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 572 (6th Cir. 2002) (“A district court's denial of a motion for a temporary restraining order generally is not appealable. Such a ruling is appealable, however, if it is tantamount to a ruling on a preliminary injunction.” (cleaned up)); see also FCA US LLC v. Bullock, 737 Fed. App’x 725, 727 (6th Cir. 2018) (“We have jurisdiction when the grant or denial of a TRO threatens to inflict irretrievable harms.” (cleaned up)).1 The Court’s TRO denial also effectively denied Plaintiffs’ PI because, almost a full week after the Order, the Court has not set the status conference or expedited briefing schedule on the PI that was indicated in the Order.
Furthermore, although determining whether to grant a motion for injunction pending appeal (IPA) requires the same analysis as a motion for TRO or PI, see Overstreet, 305 F.3d at 572; Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007); EMW Women’s Surgical Ctr., P.S.C. v. Beshear, No. 3:19-cv-178-DJH, 2019 WL 1233575, *1 (W.D. Ky. Mar. 15, 2019), and this Court has already denied Plaintiffs’ TRO/PI Motion under that analysis, Plaintiffs are nonetheless required by Fed. R. App. P. 8(a)(1)(C) to first seek an IPA in this Court before seeking it from the Sixth Circuit. Accordingly, Plaintiffs incorporate herein their reasons and legal argument in Plaintiffs’ TRO/PI Motion in support of their motion for IPA.
In addition, however, Plaintiffs show the Court that, on the same day this Court entered its Order, the District of Kansas issued a TRO enjoining Kansas officials from enforcing executive orders prohibiting religious gatherings of more than ten persons as unconstitutional, even though the orders “begin with a broad prohibition against mass gatherings,” because “they proceed to

1

This memorandum of law uses the parenthetical “(cleaned up)” to indicate that internal

quotation marks, alterations, and citations have been omitted from quotations. See, e.g., Ashford

v. Raby, 951 F.3d 798, 801 (6th Cir. 2020); Smith v. Kentucky, 520 S.W.3d 340, 354 (Ky. 2017).

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carve out broad exemptions for a host of secular activities, many of which bear similarities to the sort of personal contact that will occur during in-person religious services.” First Baptist Church. v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, at *5 (D. Kan. Apr. 18, 2020) [hereinafter First Baptist]. The court found that religious gatherings were “targeted for stricter treatment due to the nature of the activity involved, rather than because such gatherings pose unique health risks that mass gatherings at commercial and other facilities do not, or because the risks at religious gatherings uniquely cannot be adequately mitigated with safety protocols,” and that “the disparity has been imposed without any apparent explanation for the differing treatment of religious gatherings.” Id. at *7. The court concluded, “churches and religious activities appear to have been singled out among essential functions for stricter treatment. It appears to be the only essential function whose core purpose—association for the purpose of worship—had been basically eliminated.” Id. (emphasis added). The First Baptist decision is on all fours with the issues in this case, and Plaintiffs commend it to this Court for consideration in ruling on Plaintiffs’ motion for IPA.
CONCLUSION For all of the foregoing reasons, Plaintiffs request that the Court enter an injunction pending appeal, on an emergency basis, in the form of the proposed order attached hereto.
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Respectfully submitted, s/ Roger K. Gannam Mathew D. Staver Horatio G. Mihet Roger K. Gannam Daniel J. Schmid LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 (407) 875-1776 court@LC.org hmihet@LC.org rgannam@LC.org dschmid@LC.org Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed via the Court’s ECF system which will effect service upon all counsel or parties of record. DATED this April 24, 2020.
s/ Roger K. Gannam Roger K. Gannam Attorney for Plaintiffs
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 Case 3:20-cv-00278-DJH-RSE Document 23 Filed 05/02/20 Page 1 of 10 PageID #: 286

No. 20-5427

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

MARYVILLE BAPTIST CHURCH, INC.; DR.

)

JACK ROBERTS,

)

)

Plaintiffs-Appellants,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity as

)

Governor of the Commonwealth of Kentucky,

)

)

Defendant-Appellee.

)

FILED
May 02, 2020 DEBORAH S. HUNT, Clerk
O R D E R

Before: SUTTON, McKEAGUE, and NALBANDIAN, Circuit Judges.
PER CURIAM. Maryville Baptist Church and its pastor, Dr. Jack Roberts, appeal the district court’s order denying their emergency motion for a temporary restraining order. The Church claims that the district court’s order effectively denied their motion for a preliminary injunction to stop Governor Andy Beshear and other Commonwealth officials from enforcing and applying two COVID-19 orders. The orders, according to the Church, 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 nonreligious activities. The Church moves for an injunction pending appeal, which the Attorney General supports as amicus curiae. The Governor opposes the motion.
Governor Beshear issued two pertinent COVID-19 orders. The first order, issued on March 19, prohibits “[a]ll mass gatherings,” “including, but not limited to, community, civic, public,

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leisure, faith-based, or sporting events.” R. 1-5 at 1. It excepts “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.” Id.
The second order, issued on March 25, requires organizations that are not “life-sustaining” to close. R. 1-7 at 2. According to the order, religious organizations are not “life-sustaining” organizations, except when they function as charities by providing “food, shelter, and social services.” Id. at 3. Laundromats, accounting services, law firms, hardware stores, and many other entities count as life-sustaining.
On April 12, Maryville Baptist 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 says these orders and enforcement actions violate its congregants’ rights under Kentucky’s Religious Freedom Restoration Act and the free-exercise guarantee of the First and Fourteenth Amendments to the U.S. Constitution.
We have jurisdiction over the appeal. “Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions” are immediately appealable. 28 U.S.C. § 1292(a)(1). As a general rule, we do not entertain appeals from a district court’s decision to grant or deny a temporary restraining order. That’s because temporary restraining orders are usually “of short duration and usually terminate with a prompt

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ruling on a preliminary injunction, from which the losing party has an immediate right of appeal.” Ne. Ohio Coal. for the Homeless & Serv. Emps. Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1005 (6th Cir. 2006). But usually is not always, and the label a district court attaches to an order does not control. When an order “has the practical effect of an injunction,” id., and an appeal “further[s] the statutory purpose of permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence,” Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981), we will review it. We also tend to wait until the claimant seeks a stay from the district court, and the court rules on it. Claimants sought a stay on April 30. The district court has not yet ruled. But one explanation for the stay motion is tomorrow’s Sunday service. Under these circumstances, no one can fairly doubt that time is of the essence. 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. And the district court’s order has the practical effect of denying the Church’s motion for a preliminary injunction, especially if no service, whether drive-in or in-person, is allowed in the interim.
We review four factors when evaluating whether to grant a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (quotation omitted).
Likelihood of success. The Church is likely to succeed on its state and federal claims, especially with respect to the ban’s application to drive-in services. Start with the claim under Commonwealth law—Kentucky’s Religious Freedom Restoration Act. “Government shall not substantially burden” a person’s “right to act . . . in a manner motivated by a sincerely held

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religious belief,” it guarantees, “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.” Ky. Rev. Stat. § 446.350. The point of the law is to exercise an authority every State has: to provide more protection for religious liberties at the state level than the U.S. Constitution provides at the national level. In this instance, the purpose of the Kentucky RFRA is to provide more protection than the free-exercise guarantee of the First Amendment, as interpreted by Employment Division v. Smith, 494 U.S. 872 (1990). The Kentucky requirements parallel in large measure the RFRAs enacted by other States and one enacted by Congress, all of which share the goal of imposing strict scrutiny on laws that burden sincerely motivated religious practices. See, e.g., Tex. Civ. Prac. & Rem. § 110.003; see 42 U.S.C. § 2000bb-1.
Application of this test requires little elaboration in most respects. The Governor’s actions substantially burden the congregants’ sincerely held religious practices—and plainly so. Religion motivates the worship services. And no one disputes the Church’s sincerity. Orders prohibiting religious gatherings, enforced by police officers telling congregants they violated a criminal law and by officers taking down license plate numbers, amount to a significant burden on worship gatherings. See Gonzales v. O Centro Espirita Beneficiente Uniao, 546 U.S. 418, 428–32 (2006); Barr v. City of Sinton, 295 S.W.3d 287, 301 (Tex. 2009). At the same time, the Governor has a compelling interest in preventing the spread of a novel, highly contagious, sometimes fatal virus. All accept these conclusions.
The likelihood-of-success inquiry instead turns on whether Governor Beshear’s orders were “the least restrictive means” of achieving these public health interests. Ky. Rev. Stat. § 446.350. That’s a difficult hill to climb, and it was never meant to be anything less. See Barr, 295 S.W.3d at 289; Holt v. Hobbs, 574 U.S. 352, 364 (2015). The way the orders treat comparable

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religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches. The orders permit uninterrupted functioning of “typical office environments,” R. 1-5 at 1, which presumably includes business meetings. How are in-person meetings with social distancing any different from drive-in church services with social distancing? Kentucky permits the meetings and bans the services, even though the open-air services would seem to present a lower health risk. The orders likewise permit parking in parking lots with no limit on the number of cars or the length of time they are there so long as they are not listening to a church service. 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 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.
In responding to the state and federal claims, the Governor denies that the ban applies to drive-in worship services, and the district court seemed to think so as well. But that is not what the Governor’s orders say. By their terms, they apply to “[a]ll mass gatherings,” “including, but not limited to, . . . faith-based . . . events.” R. 1-5 at 1. In deciding to open up faith-based events on May 20, and to permit other events before then such as car washes and dog grooming, see Healthy at Work: Phase 1 Reopening, https://govstatus.egov.com/ky-healthy-at-work (last visited May 2, 2020), the Governor did not say that drive-in services are exempt. And that is not what the Governor has done anyway. Consistent with the Governor’s threats on Good Friday, state troopers came to the Church’s Easter service, told congregants that they were in violation of a criminal law, and took down the license plate numbers of everyone there, whether they had participated in a drive-in or in-person service.

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It bears noting that neither the Governor nor the Attorney General has raised sovereign immunity as a defense to this claim. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984). That is within their rights, see Wis. Dep’t. of Corr. v. Schacht, 524 U.S. 381, 389 (1998), and perhaps springs from a commendable recognition that, with or without a pandemic, no one wants to ignore state law in creating or enforcing these orders.
The Governor’s orders also likely “prohibit[] the free exercise” of “religion” in violation of the First and Fourteenth Amendments, especially with respect to drive-in services. U.S. Const amends. I, XIV; Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). On the one hand, a generally applicable law that incidentally burdens religious practices usually will be upheld. See Smith, 494 U.S. at 878–79; New Doe Child #1 v. Congress of the United States, 891 F.3d 578, 591–93 (6th Cir. 2018). On the other hand, a law that discriminates against religious practices usually will be invalidated unless the law “is justified by a compelling interest and is narrowly tailored to advance that interest.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeh, 508 U.S. 520, 553 (1993).
Discriminatory laws come in many forms. Outright bans on religious activity alone obviously count. So do general bans that cover religious activity when there are exceptions for comparable secular activities. See Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012); see also Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365–67 (3d Cir. 1999). As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non-discriminatory law. Ward, 667 F.3d at 738. “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.” Id. at 740. As just shown, the Governor’s

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orders do not seem to survive strict scrutiny, particularly with respect to the ban on outdoor services. The question, then, is one of general applicability.
The Governor’s orders have several potential hallmarks of discrimination. One is that they prohibit “faith-based” mass gatherings by name. R. 1-5 at 1. But this does not suffice by itself to show that the Governor singled out faith groups for disparate treatment. The order lists many other group activities, and we accept the Governor’s submission that he needed to mention faith groups by name because there are many of them, they meet regularly, and their ubiquity poses material risks of contagion.
The real question goes to exceptions. The Governor insists at the outset that there are “no exceptions at all.” Appellee Br. at 21. But that is word play. The orders allow “life-sustaining” operations and don’t include worship services in that 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, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. 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 essential services and even when they meet outdoors.
We don’t doubt the Governor’s sincerity in trying to do his level best to lessen the spread of the virus or his authority to protect the Commonwealth’s citizens. See Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905). And we agree that no one, whether a person of faith or not, has a right “to expose the community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944). But restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom. Assuming

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all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.
Sure, the Church might use Zoom services or the like, as so many places of worship have decided to do over the last two months. But who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when “two or three gather in my Name.” Matthew 18:20; see also On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264JRW, 2020 WL 1820249, at *7–8 (W.D. Ky. Apr. 11, 2020). As individuals, we have some sympathy for Governor DeWine’s approach—to allow places of worship in Ohio to hold services but then to admonish them all (we assume) that it’s “not Christian” to hold in-person services during a pandemic. Doral Chenoweth III, Video: Dewine says it’s “not Christian” to hold church during coronavirus, Columbus Dispatch, April 1, 2020. But this is not about sympathy. And it’s exactly what the federal courts are not to judge—how individuals comply with their own faith as they see it. Smith, 494 U.S. at 886–87.
Keep in mind that the Church and Dr. Roberts do not seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They are not asking to share a chalice. The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same. If any group

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fails, as assuredly some groups have failed in the past, the Governor is free to enforce the socialdistancing rules against them for that reason.
The Governor claims, and the district court seemed to think so too, that the explanation for these groups of people to be in the same area—intentional worship—distinguishes them from groups of people in a parking lot or a retail store or an airport or some other place where the orders allow many people to be. We doubt that the reason a group of people go to one place has anything to do with it. Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there. So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another? If the problem is numbers, and risks that grow with greater numbers, then there is a straightforward remedy: limit the number of people who can attend a service at one time.
Other factors. Preliminary injunctions in constitutional cases often turn on likelihood of success on the merits, usually making it unnecessary to dwell on the remaining three factors. City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam). That’s true here with respect to the ban on drive-in worship services. As for harm to the claimants, the prohibition on attending any worship service this Sunday and the Sundays through May 20 assuredly inflicts irreparable harm. Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001). As for harm to others, an injunction appropriately permits religious services with the same riskminimizing precautions as similar secular activities, and permits the Governor to enforce socialdistancing rules in both settings. As for the public interest, treatment of similarly situated entities in comparable ways serves public health interests at the same time it preserves bedrock freeexercise guarantees. See Bays v. City of Fairborn, 668 F.3d 814, 825 (6th Cir. 2012).

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The balance is more difficult when it comes to in-person services. Allowance for drive-in services this Sunday mitigates some harm to the congregants and the Church. In view of the fastmoving pace of this litigation and in view of the lack of additional input from the district court, whether of a fact-finding dimension or not, we are inclined not to extend the injunction to inperson services at this point. 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.
Accordingly, the plaintiffs’ motion for an injunction pending appeal, and their motion to expedite briefing, oral argument and submission on the briefs, is GRANTED IN PART. The Governor and all other Commonwealth officials are hereby enjoined, during the pendency of this appeal, from enforcing orders prohibiting drive-in services at the Maryville Baptist Church if the Church, its ministers, and its congregants adhere to the public health requirements mandated for “life-sustaining” entities.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

 
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MARYVILLE BAPTIST CHURCH, INC., )

and DR. JACK ROBERTS,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity as )

Governor of the Commonwealth of Kentucky, )

)

Defendant.

)

CASE NO. 3:20-cv-00278-DJH

PLAINTIFFS’ RENEWED EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL
AND MOTION TO AMEND BRIEFING SCHEDULE Plaintiffs, MARYVILLE BAPTIST CHURCH, INC. (“Maryville Baptist Church” or the “Church”), and DR. JACK ROBERTS (“Dr. Roberts”), pursuant to Local Rule 7.1 and Federal Rule of Appellate Procedure 8(a)(1)(C), and on a continuing emergency basis, renew their Emergency Motion for Injunction Pending Appeal (ECF 17, “District Court IPA Motion”) pursuant to the Order of the Sixth Circuit Court of Appeals (ECF 23, “6th Circuit IPA Order”) granting, in part, Plaintiffs’ Emergency Motion for Injunction Pending Appeal to that court (“6th Circuit IPA Motion,” attached hereto as Exhibit A), and pursuant to this Court’s Order (ECF 24, “Status Order”) entered today setting a telephonic status conference “to revisit the briefing schedule previously set in this matter [ECF 22] and to discuss the necessity of creating a record to aid in the appellate process.” (Status Order 2.)
JURISDICTION AND TIMING FOR THIS COURT’S RULING ON RENEWED IPA MOTION The Sixth Circuit has jurisdiction over Plaintiffs’ appeal of this Court’s April 18, 2020 Order (ECF 9) denying Plaintiffs’ Emergency Motion for Temporary Restraining Order and

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Preliminary Injunction (ECF 3, Plaintiffs’ “TRO/PI Motion”). (6th Cir. IPA Order 2–3; Status Order 2.) The Sixth Circuit also took up Plaintiffs’ 6th Circuit IPA Motion filed April 30, even though Plaintiffs’ District Court IPA Motion filed April 24 remained pending in this Court, because of the impending May 3 Sunday service and, “Under these circumstances, no one can fairly doubt that time is of the essence.” (6th Cir. IPA Order 3.) Nonetheless, the 6th Circuit IPA Order only resolved Plaintiffs’ respective IPA motions as to Plaintiffs’ drive-in worship services, enjoining “[t]he Governor and all other Commonwealth officials . . . during the pendency of [the] appeal, from enforcing orders prohibiting drive-in services at the Maryville Baptist Church if the Church, its ministers, and its congregants adhere to the public health requirements mandated for ‘life-sustaining’ entities.” (6th Cir. IPA Order 10.) The Sixth Circuit left to this Court, however, “[i]n the near term,” resolution of Plaintiffs’ respective IPA motions as to in-person worship at the Church, and “urge[d] [this 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.” (6th Cir. IPA Order 10.) Given that Plaintiffs’ next affected service is this Wednesday evening, May 6, Plaintiffs respectfully request this Court’s ruling on Plaintiffs’ District Court IPA Motion (ECF 17, as renewed hereby), as to in-person worship, at or before 3:00 P.M. Wednesday, May 6, so that Plaintiffs may proceed with their Wednesday night worship service under the Court’s protection, or seek further immediate relief in the Sixth Circuit.
Plaintiffs respectfully submit to the Court that they are conscientiously observing the respective jurisdictional and procedural rules of this Court and the Sixth Circuit in while diligently working to protect their rights. In the telephonic status conference convened in this Court before Magistrate Judge Edwards (ECF 19, 22), Plaintiffs’ counsel transparently stated to Judge Edwards that Plaintiffs’ priority was this Court’s ruling on the District Court IPA Motion before the
2

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ensuing Sunday (May 3), and that Plaintiffs otherwise needed to know what this Court would do before taking the IPA matter to the 6th Circuit. Plaintiffs’ counsel also, however, answered the question Judge Edwards posed regarding briefing of the District Court IPA Motion, urging that Governor Beshear should be required to respond as soon as possible, and in any event by Monday (May 4), not Friday (May 8) as suggested by Judge Edwards. Plaintiffs’ counsel also committed to a one-day reply (which would have facilitated a ruling before the ensuing Wednesday service if Governor Beshear responded on Monday), but revised that commitment to two days once Judge Edwards indicated the Governor’s response would be due on Wednesday (at which point both Plaintiffs’ Sunday and Wednesday services would have passed without relief from the Court, and replying on Friday instead of Thursday, if Plaintiffs even took both days, would have made no practical difference). The status conference having concluded with Judge Edwards’ indicating a forthcoming briefing schedule finishing on the following Friday (May 8), and no order to the contrary having been entered after the status conference, Plaintiffs filed their 6th Circuit IPA Motion the same day to obtain relief in time for the ensuing Sunday service, which relief that court granted, in part, in the 6th Circuit IPA Order.1
SIXTH CIRCUIT’S PARAMETERS FOR THIS COURT’S RULING ON RENEWED IPA MOTION In the 6th Circuit IPA Order, the court applied the familiar “four factors” in granting Plaintiffs’ 6th Circuit IPA Motion. (6th Cir. IPA Order 3–10.) Importantly, the court held, “The Church is likely to succeed on its state and federal claims, especially with respect to the ban’s

1

In granting Plaintiffs relief, the Sixth Circuit implicitly rejected Governor Beshear’s

accusation of impropriety in Plaintiffs’ positioning within the jurisdictional and procedural

parameters of the respective courts, and this Court should likewise reject the accusation should

Governor Beshear repeat it here. (See Governor Andy Beshear’s Response in Opposition to

Plaintiffs-Appellant’s Emergency Motion for Injunction, 6th Cir. ECF 13-1, attached hereto as

Exhibit B, at 13–14.)

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application to drive-in services” (6th Cir. IPA Order 3 (emphasis added)), and that it is
“unnecessary to dwell on the remaining three factors” with respect to drive-in services (6th Cir.
IPA Order 9). More importantly, however, the court suggested the same outcome is due with
respect to in-person services; but, for in-person services, the court indicated this Court should give
“additional input . . . whether of a fact-finding dimension or not” as to the balancing of the other
three factors with the established likelihood of success. (6th Cir. IPA Order 10 (emphasis added).)
The reasoning and conclusions on which the Sixth Circuit based its injunction as to drive-
in services applies with equal force to in-person services:
The way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches. The orders permit uninterrupted functioning of “typical office environments,” which presumably includes business meetings. How are in-person meetings with social distancing any different from drive-in church services with social distancing?
(6th Cir. IPA Order 4–5 (emphasis added) (citation omitted).)2 And:
As just shown, the Governor’s orders to not seem to survive strict scrutiny, particularly with respect to the ban on outdoor services.
(6th Cir. IPA Order 6–7 (emphasis added).) And:
The orders allow “life-sustaining” operations and don’t include worship services in that definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for “lifesustaining” businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow socialdistancing 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 essential services and even when they meet outdoors.

2

The Sixth Circuit expressly rejected Governor Beshear’s argument that his orders do not

ban drive-in services, both because of what the orders say and because of how the orders were

enforced against Plaintiffs’ drive-in service. (6th Cir. IPA Order 5.)

4

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(6th Cir. IPA Order 7 (emphasis added) (citation omitted).) And:
[R]estrictions inexplicably applied to one group and exempted from another do little to further these goals [“to lessen the spread of the virus or . . . protect the Commonwealth’s citizens”] and do much to burden religious freedom. Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers.
(6th Cir. IPA Order 7–8 (emphasis added).) And:
[I]t’s exactly what the federal courts are not to judge—how individuals comply with their own faith as they see it.”
(6th Cir. IPA Order 8.) And:
The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.
(6th Cir. IPA Order 8–9 (emphasis added).) And:
The Governor claims . . . that the explanation for these groups of people to be in the same area—intentional worship—distinguishes them from groups of people in a parking lot or a retail store or an airport or some other place where the orders allow many people to be. We doubt that the reason a group of people go to one place has anything to do with it. Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there. So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another?
(6th Cir. IPA Order 9 (emphasis added).)
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.
(6th Cir. IPA Order 10.)
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Taken together, the foregoing reasoning and conclusions of the Sixth Circuit make it clear: no reasons offered by Governor Beshear so far are good enough to justify his orders’ allowing people—even large numbers of people—to “practice social distancing and hygiene in one place but not another.” (6th Cir. IPA Order 9.) Thus, this Court’s inquiry in aid of the appellate process should, and must, focus only on whether Governor Beshear has any other reason not previously disclosed. Moreover, this inquiry does not require further factual development. (6th Cir. IPA Order Governor Beshear presented substantial factual matter to the Sixth Circuit in his Response in Opposition to Plaintiffs-Appellant’s Emergency Motion for Injunction, 6th Cir. ECF 13-1 (“6th Cir. IPA Motion Response”), attached hereto as Exhibit B. Governor Beshear presumably put his best foot forward in his Response to the Sixth Circuit, and still failed to give a good reasons for his orders’ bans on in-person services. The Court also has the benefit of the Amicus Curiae Brief of the Commonwealth of Kentucky in Support of Plaintiffs’ Motion for an Injunction Pending Appeal (ECF 20-2) filed by the Kentucky Office of the Attorney General and fully supporting Plaintiffs’ position.
Furthermore, as shown in Plaintiffs’ Verified Complaint (ECF 1), the Kentucky State Police did not enter Plaintiffs’ sanctuary when they descended on Plaintiffs’ Easter Sunday service to post notices of criminal violation on all cars in the parking lot. (V.Compl. ¶ 51.) Thus, with respect to Plaintiffs’ distancing and hygiene practices, or intended practices, it is unlikely Governor Beshear can adduce any further facts relevant to his burden to establish his orders are narrowly tailored under the applicable strict scrutiny standard. (6th Cir. IPA Order 4–9; 6th Cir. IPA Mot. 17–20.) To be sure, the Sixth Circuit already concluded “that the Church and Dr. Roberts do not seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social
6

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distancing. They are willing to follow any hygiene requirements.” (6th Cir. IPA Order 8.) And to remove all doubt, attached hereto as Exhibit C is the Declaration of Dr. Jack Roberts providing photographic evidence of the distancing measures employed by Plaintiffs inside the Church, and increased distancing employed in the parking lot.
CONCLUSION For all of the foregoing reasons, unless Governor Beshear can proffer to this Court new, persuasive evidence or argument relevant to his burden to prove narrow tailoring, there is no need to for the Court to receive any further evidence or argument, and the Court should grant Plaintiffs’ District Court IPA Motion, as renewed hereby, forthwith, and in any event before 3:00 P.M. on Wednesday, May 6, 2020, so that Plaintiffs may proceed with their Wednesday night worship service under the Court’s protection, or seek further immediate relief in the Sixth Circuit.
Respectfully submitted, s/ Roger K. Gannam Mathew D. Staver Horatio G. Mihet Roger K. Gannam Daniel J. Schmid LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 (407) 875-1776 court@LC.org hmihet@LC.org rgannam@LC.org dschmid@LC.org Attorneys for Plaintiffs
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Case 3:20-cv-00278-DJH-RSE Document 25 Filed 05/04/20 Page 8 of 8 PageID #: 306 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was filed via the Court’s ECF system which will effect service upon all counsel or parties of record.
DATED this May 4, 2020. s/ Roger K. Gannam Roger K. Gannam Attorney for Plaintiffs
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CORPORATE DISCLOSURE STATEMENT In accordance with Fed. R. App. P. 26.1 and Rule 26.1 of this Court, Plaintiffs–Appellants state that neither is a subsidiary or affiliate of a publicly owned corporation, and that no publicly owned corporation, not a party to the appeal, has a financial interest in its outcome.
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..........................................................i
TABLE OF CONTENTS.......................................................................................... ii
TABLE OF AUTHORITIES ....................................................................................iv
RELIEF SOUGHT.....................................................................................................1
FACTUAL GROUNDS FOR RELIEF .....................................................................2
A. Satisfaction of Fed. R. App. P. 8(a). .....................................................3
B. Factual Summary...................................................................................6
LEGAL ARGUMENT...............................................................................................9
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS THAT THE COMMONWEALTH’S ORDERS SHOULD BE RESTRAINED BECAUSE THEY VIOLATE APPELLANTS’ FREE EXERCISE RIGHTS UNDER THE FIRST AMENDMENT AND KENTUCKY RFRA. ................................................10
A. The Commonwealth’s Application of the Orders Burdens Appellants’ Free Exercise Rights Under the First Amendment and Kentucky RFRA. .................................................................................10
B. The Commonwealth’s application of the Orders to burden Appellants’ free exercise of religious beliefs is subject to strict scrutiny under the First Amendment and KRFRA..............................12
C. The Commonwealth’s Application of the Orders Cannot Withstand Strict Scrutiny and Should Be Restrained...........................................16
II. PLAINTIFFS HAVE SUFFERED, ARE SUFFERING, AND WILL CONTINUE TO SUFFER IRREPARABLE INJURY ABSENT AN IPA RESTRAINING AND ENJOINING THE COMMONWEALTH. ..............20
III. THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST WARRANT AN IPA.....................................................................................21
CONCLUSION ........................................................................................................22
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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS..........24 CERTIFICATE OF SERVICE ................................................................................25 EXHIBITS
Order, April 18, 2020 (ECF 9, “TRO/PI Order”)...............................Exhibit 1 Notice of Appeal (ECF 16).................................................................Exhibit 2 Verified Complaint for Declaratory Relief, Temporary Restraining Order, Preliminary and Permanent Injunctive Relief, and Damages (ECF 1, “Verified Complaint”) ..........................................................Exhibit 3 Plaintiffs’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction and Supporting Memorandum of Law (ECF 3, “TRO/PI Motion”) ..........................................................................Exhibit 4 Amicus Curiae Brief of the Commonwealth of Kentucky in Support of Plaintiffs’ Motion for an Injunction Pending Appeal (ECF 20-2, “AG Brief”) ........................................................................................ Exhibit 5
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TABLE OF AUTHORITIES Cases ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) ............................................21 ACLU of Ohio v. Capital Square Rev. & Advisory Bd.,
243 F.3d 289 (6th Cir. 2001) ..............................................................................20 Ashcroft v. ACLU, 542 U.S. 656 (2004) ..................................................................17 Ashford v. Raby, 951 F.3d 798 (6th Cir. 2020)..........................................................4 Bernal v. Fainter, 467 U.S. 216 (1984) ...................................................................16 Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016)........................................18 Burson v. Freeman, 504 U.S. 191 (1992)................................................................16 Chem. Weapons Working Group (CWWG) v. Dep’t of the Army,
101 F.3d 1360 (10th Cir. 1996) .........................................................................3,4 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993)..................................................................................11,13,14 Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................20 EMW Women’s Surgical Ctr., P.S.C. v. Beshear, No. 3:19-cv-178-DJH,
2019 WL 1233575 (W.D. Ky. Mar. 15, 2019) .....................................................9 FCA US LLC v. Bullock, 737 Fed. App’x 725 (6th Cir. 2018)..................................5 First Baptist Church. v. Kelly, No. 20-1102-JWB,
2020 WL 1910021 (D. Kan. Apr. 18, 2020)..................................................15,19 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006)............................................................................................17 Jacobson v. Massachusetts, 197 U.S. 11 (1905) .....................................................11 Joelner v. Vill. of Washington Park, 378 F.3d 613 (7th Cir. 2004).........................21
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Jones v. Caruso, 569 F.3d 258 (6th Cir. 2009)........................................................21 Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969).............................................21,22 McCullen v. Coakley, 134 S. Ct. 2518 (2014) .........................................................17 Ne. Ohio Coal. for Homeless & Serv. Employees Intern. Union, Local 1199
v. Blackwell, 467 F.3d 999 (6th Cir. 2006)...........................................................4 On Fire Christian Ctr., Inc. v. Fisher, No. 3:20-CV-264-JRW,
2020 WL 1820249 (W.D. Ky. Apr. 11, 2020).................. 7,11,14,15,16,19,21,22 Overstreet v. Lexington-Fayette Urban Cnty. Gov’t,
305 F.3d 566 (6th Cir. 2002) ..........................................................................4,5,9 Republican Party of Minn. v. White, 536 U.S. 765 (2002).................................16,17 Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015) ................................16 Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115 (1989) ...................................18 Smith v. Kentucky, 520 S.W.3d 340 (Ky. 2017) ........................................................4 Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) ....................................................18 Terminiello v. City of Chicago, 337 U.S. 1 (1949)..................................................11 Terret v. Taylor, 13 U.S. (9 Cranch) 43 (1815) .......................................................20 Thomas v. Rev. Bd. of Ind. Emp. Security Div., 450 U.S. 707 (1981).....................11 Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007) ................................................9 Statutes Kentucky Religious Freedom Restoration Act,
Ky. Rev. Stat. § 446.350......................................................................10,11,12,16 Other Authorities 6th Cir. R. 27...........................................................................................................1,2
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Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure (2d ed. 1995) ............................................................................20,21
Fed. R. App. P. 8.....................................................................................................1,3 Hebrews.................................................................................................................... 10 Matthew .................................................................................................................... 10 U.S. Const. amend I ..........................................................................................passim
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RELIEF SOUGHT Plaintiffs–Appellants, MARYVILLE BAPTIST CHURCH, INC. (the “Church”), and the Church’s pastor DR. JACK ROBERTS (“Dr. Roberts”) (collectively, “Appellants”), on an emergency basis pursuant to 6th Cir. R. 27(c), move the Court: 1. Pursuant to Fed. R. App. P. 8(a)(2), for an injunction pending appeal (IPA) of the district court’s April 18, 2020 Order (“TRO/PI Order,” attached as Exhibit 1), which is the subject of Appellants’ Notice of Appeal to this Court (attached as Exhibit 2), restraining and enjoining Defendant–Appellee, ANDY BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky (the “Commonwealth” or “Kentucky”), from unconstitutionally enforcing and applying against Appellants, as the Kentucky State Police did on Easter Sunday, the various COVID-19 orders issued by Governor Beshear and other Commonwealth officials (collectively, the “Orders”) purporting to prohibit Appellants, on pain of criminal sanctions and mandatory, household-wide quarantines, from gathering for in-person or even “drive-in” worship services at the Church, regardless of whether Appellants meet or exceed the social distancing and hygiene guidelines pursuant to which the Commonwealth disparately and discriminatorily allows so-called “lifesustaining” commercial and non-religious entities (e.g., liquor stores, warehouse
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clubs, supercenters, and office buildings) to accommodate large gatherings, crowds, and masses of persons without scrutiny or numerical limit; and, or in the alternative,
2. Pursuant to 6th Cir. R. 27(f), for an order expediting the briefing, oral argument, and ultimate disposition of their appeal, to remedy the irreparable harm being suffered by Appellants in having to conduct religious worship services each Sunday morning and Wednesday night under the continuing threat of unconstitutional and illegal Commonwealth enforcement actions against Appellants, following actual enforcement action against Appellants and their congregants by the Kentucky State Police.
FACTUAL GROUNDS FOR RELIEF Good cause and other reasons for the requested relief are shown herein, as supported by Appellants’ Verified Complaint for Declaratory Relief, Temporary Restraining Order, Preliminary and Permanent Injunctive Relief, and Damages (“Verified Complaint,” attached as Exhibit 3), Appellants’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction and Supporting Memorandum of Law to the district court (“TRO/PI Motion,” attached as Exhibit 4), and the Amicus Curiae Brief of the Commonwealth of Kentucky in Support of Plaintiffs’ Motion for an Injunction Pending Appeal filed in the district court by the Kentucky Office of the Attorney General (“AG Brief,” attached as Exhibit 5).
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A. Satisfaction of Fed. R. App. P. 8(a). Pursuant to Fed. R. App. P. 8(a)(1)(C), Appellants first moved for an emergency IPA in the district court on April 24, the same day Appellants filed their notice of appeal. The ensuing Sunday and Wednesday passed without any action by the district court on the motion. Today (April 30), the magistrate convened a status conference, and took input from counsel on a briefing schedule for the emergency IPA motion. The magistrate indicated a forthcoming briefing schedule concluding next Friday, May 8, potentially followed by oral argument, if the district court requires it, which effectively denies Appellants emergency preliminary relief for at least another Sunday–Wednesday cycle, and likely several more. This delay by the district court satisfies the condition that “the district court . . . failed to afford the relief requested,” Fed. R. App. P. 8(a)(2)(A)(ii), justifying Appellants’ seeking an emergency IPA from this Court. Moreover, Appellants could be excused from first seeking an IPA in the district court for impracticability under Fed. R. App. P. 8(a)(2)(A)(i), if not futility, because the district court has already ruled against Appellants on the merits under the TRO/PI/IPA standard, and incurring the additional irreparable harm ought not be necessary. See Chem. Weapons Working Group (CWWG) v. Dep’t of the Army, 101 F.3d 1360, 1362 (10th Cir. 1996) (“When the district court’s order demonstrates commitment to a particular resolution,
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application for a stay from that same district court may be futile and hence impracticable.”)
Appellants appealed to this Court from the district court’s TRO/PI Order, which denied Appellants’ TRO/PI Motion.1 Though phrased as a denial of Appellants’ temporary restraining order (TRO) (TRO/PI Order 7), “the label attached to an order by the trial court is not decisive, and [this Court] looks to the nature of the order and the substance of the proceeding below.” Ne. Ohio Coal. for Homeless & Serv. Employees Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1005 (6th Cir. 2006) (cleaned up).2 Thus, Appellants appealed the denial as a denial, in substance, of their preliminary injunction (PI) because the district court made a merits determination on the likelihood of success and irreparable harm determinations common to both the TRO and PI aspects of the motion. (TRO/PI Order 2–7.) See Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566,
1 The grounds for Appellants’ TRO/PI Motion included violations of free exercise, speech, and assembly rights under the First Amendment, and violations of the Kentucky RFRA. This Motion incorporates the arguments below, but due to space limitations the focus herein is on violations of free exercise and Kentucky RFRA. 2 This motion uses the parenthetical “(cleaned up)” to indicate that internal quotation marks, alterations, and citations have been omitted from quotations. See, e.g., Ashford v. Raby, 951 F.3d 798, 801 (6th Cir. 2020); Smith v. Kentucky, 520 S.W.3d 340, 354 (Ky. 2017).
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572 (6th Cir. 2002) (“Such a ruling is appealable . . . if it is tantamount to a ruling on a preliminary injunction.” (cleaned up)); see also FCA US LLC v. Bullock, 737 Fed. App’x 725, 727 (6th Cir. 2018) (“We have jurisdiction when the grant or denial of a TRO threatens to inflict irretrievable harms.” (cleaned up)).3 Furthermore, it had already been a week after the district court’s denial when Appellants filed their appeal, and the district court still had not set a status conference or briefing schedule on the PI despite stating it would do so in the TRO/PI Order (TRO/PI Order 7), effectively denying Appellants any preliminary relief and forcing them to face the ensuing Sunday and Wednesday under the continued threat of more Commonwealth enforcement actions against them. (TRO/PI Order 7.)
3 At today’s status conference Appellants’ counsel advised the magistrate that the district court is without jurisdiction to schedule briefing or otherwise consider the PI aspect of Appellants’ TRO/PI Motion because the district court’s effective denial of the PI is the basis for Appellants’ appeal of the TRO/PI Order to this Court. Governor Beshear’s counsel tacitly agreed, advising the magistrate that this Court has already established a merits briefing schedule for the appeal, and thereafter offering scheduling input only for briefing Appellants’ IPA motion in the district court. See Overstreet, 305 F.3d at 572 (“Although the district court treated the motion as one for a temporary restraining order, both parties have treated the motion, and the district court’s ruling thereon, as a motion for a preliminary injunction.”).
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B. Factual Summary.4 The series of COVID-19 Orders issued by Governor Beshear and his designees from March 6 to March 25, 2020, purport to prohibit “[a]ll mass gatherings,” ambiguously defined to include “any event or convening that brings together groups of individuals,” but specifically including “faith-based . . . activities”—regardless of whether participants observe governmental social distancing and hygiene guidelines. (V.Compl. ¶¶ 24–25, 30, 34, Exs. D, F.) The Orders, however, exempt 19 expansive categories of commercial and non-religious activities “where large numbers of people are present” from the “mass gatherings” prohibition, expressly allowing “life-sustaining” liquor stores, warehouse clubs, retail supercenters, and professional offices to accommodate gatherings, crowds, or masses of people without numerical limit, and subject only to “social distancing and hygiene guidance” from the Commonwealth “to the fullest extent practicable,” such as “ensuring physical separation . . . by at least six feet when possible.” (V.Compl. ¶¶ 26–34, Ex. D, Ex. F at 5 (emphasis added).) Also expressly exempted from the “mass gatherings” prohibition as “life-sustaining” are “[c]arry-out, delivery, and drive-through food and beverage sales.” (Id.)
4 Here Appellants highly condense the relevant allegations from their Verified Complaint, but nonetheless commend to the Court ¶¶ 19–89 of the Verified Complaint (and referenced exhibits) for a complete factual background, along with the AG Brief.
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On Good Friday (April 10), and in reliance on the Orders, Governor Beshear specifically threatened criminal sanctions and quarantines against Easter Sunday worshippers who showed up at a church in Kentucky. (V.Compl. ¶¶ 2, 38–42.) On Saturday, April 11, District Judge Justin R. Walker of the Western District of Kentucky issued a TRO enjoining the Mayor of Louisville from “enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with any prohibition on drive-in church services” at a Louisville church. See On Fire Christian Ctr., Inc. v. Fisher, No. 3:20-CV-264-JRW, 2020 WL 1820249, at *1 (W.D. Ky. Apr. 11, 2020) [hereinafter On Fire].5 The court issued the TRO because the Mayor threatened churchgoers with criminal enforcement of the Orders: the Mayor said he would “use the police to deter and disburse” religious gatherings, had requested that the police “record license plates of all vehicles in attendance,” and threatened that public health officials would contact and instruct individuals to selfquarantine under the threat of criminal sanction. Id. at *4–5. The court held such threats and actions were unconstitutional because the government “may not ban its citizens from worshipping.” Id. at *8 (emphasis added).
Nevertheless, what the Mayor of Louisville only threatened, and the district court enjoined as unconstitutional under the First Amendment,
5 The TRO/PI Order also denied Appellants’ request for assignment of their case to Judge Walker as a related case. (TRO/PI Order 2.)
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Governor Beshear actually did to Appellants in the same judicial district. On Easter Sunday (April 12), as Appellants were conducting worship services at the Church, the Kentucky State Police were dispatched to issue notices to Appellants’ congregants that their attendance at church was a criminal act, and to record the license plates of all vehicles in the Church’s parking lot. (V.Compl. ¶¶ 2, 4, 43–51.) The Commonwealth followed up its police action with letters to all vehicle owners that they must self-quarantine and engage in certain government-supervised behaviors for 14 days or be subject to further sanction. (V.Compl. ¶¶ 52–55.) Also on Easter Sunday, however, the Walmart and Kroger shopping centers less than one mile from the Church accommodated hundreds of cars in their parking lots and persons inside their stores, but the Commonwealth did not target them for any enforcement action. (V.Compl. ¶¶ 64–68, Ex. I.)
During their Easter Sunday service, Appellants promoted, and their congregants strictly observed, the Orders’ social distancing and hygiene guidance, and will continue doing so for the duration of the COVID-19 period. (V.Compl. ¶¶ 57–59.) Appellants also conducted a “drive-in” service by broadcasting their service over a loudspeaker in the Church’s parking lot. (V.Compl. ¶¶ 60–62.) No
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person inside the Church or in its parking lot on Easter Sunday was known or observed to be infected by or symptomatic of COVID-19. (V.Compl. ¶ 63.)6
LEGAL ARGUMENT Determining whether to grant an IPA motion requires the same determinations as a motion for TRO or PI: that Appellants have a strong likelihood of success on the merits, that they will suffer irreparable injury absent the order, that the balance of the equities favors the order, and that the public interest is served by the Court’s issuing the order. See Overstreet, 305 F.3d at 572; Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007); EMW Women’s Surgical Ctr., P.S.C. v. Beshear, No. 3:19cv-178-DJH, 2019 WL 1233575, *1 (W.D. Ky. Mar. 15, 2019). Appellants satisfy each of these elements.
6 Today (April 30), Governor Beshear filed in the district court a Notice of Supplemental Fact Development (ECF 21), advising the court that “beginning on May 20, 2020 faith-based organizations will be permitted to have in-person services at a reduced capacity, with social distancing, and cleaning and hygiene measures implemented and followed.” The Notice did not, however, walk back any enforcement threats or actions already made or taken against Appellants, and three Sundays (and two Wednesdays) will elapse before the Governor’s undefined and unquantified “reduced capacity” permissions will take effect. The Notice also does not guarantee equal treatment for religious gatherings going forward, nor does it denounce or abandon the unconstitutional unequal treatment of religious gathering that has been, and continues to be, in effect. Thus, the Notice has no practical effect on Appellants’ need for an IPA.
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I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS THAT THE COMMONWEALTH’S ORDERS SHOULD BE RESTRAINED BECAUSE THEY VIOLATE APPELLANTS’ FREE EXERCISE RIGHTS UNDER THE FIRST AMENDMENT AND KENTUCKY RFRA. A. The Commonwealth’s Application of the Orders Burdens Appellants’ Free Exercise Rights Under the First Amendment and Kentucky RFRA. Appellants demonstrated below that they have sincerely held religious beliefs,
rooted in Scripture’s commands (e.g., Hebrews 10:25), that Christians are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis. (V.Compl. ¶¶ 123, 199, 226, 238.) And, as the district court recognized in On Fire, “many Christians take comfort and draw strength from Christ’s promise that ‘where two or three are gathered together in My name, there am I in the midst of them.’” 2020 WL 1820249, at *8 (quoting Matthew 18:20). Indeed, the court explained, “the Greek work translated church . . . literally means assembly.” Id. (cleaned up) (emphasis added). Governor Beshear’s threatened and executed prohibitions under the Orders unquestionably and substantially burden Appellants’ religious practice of assembling together for worship, according to their sincerely held beliefs, in violation of the First Amendment and the Kentucky Religious Freedom Restoration Act, Ky. Rev. Stat. § 446.350 [hereinafter KRFRA].
Though Governor Beshear might not view church attendance as fundamental to Appellants’ religious exercise—or “life-sustaining” on par with liquor store or
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supercenter shopping, or professional office work—his opinion is irrelevant because “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Rev. Bd. of Ind. Emp. Security Div., 450 U.S. 707, 714 (1981). “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) [hereinafter Lukumi] (emphasis added). Prohibiting Kentuckians from attending church services where other non-religious gatherings are permitted under similar circumstances “violat[es] the Free Exercise Clause beyond all question.” On Fire, 2020 WL 1820249, at *6 (emphasis added). Even in a time of crisis or disease, see Jacobson v. Massachusetts, 197 U.S. 11 (1905), the First Amendment does not evaporate. Indeed, “even under Jacobson, constitutional rights still exist. Among them is the freedom to worship as we choose.” On Fire, 2020 WL 1820249, at *8; see also Terminiello v. City of Chicago, 337 U.S. 1, 27, 31, 38 (1949).
Like the Free Exercise Clause, KRFRA also prohibits the Commonwealth from substantially burdening a person’s exercise of religion. And KRFRA defines “burden” to include “indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.”
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There can be no question that the Orders, on their face and as applied, impose direct penalties on Appellants for the act of attending church in conformance with their sincerely held religious beliefs. As shown in the Factual Grounds for Relief (supra pp. 7–8), not only did Governor Beshear threaten to penalize Easter Sunday worshippers who attended church, even for drive-in services, but the Kentucky State Police directly enforced the Orders against Appellants. Moreover, the Orders purport to exclude Appellants from their own facilities for worship services, while allowing the facilities to be used for charitable or other services approved by Governor Beshear. (AG Br. 4–5.) Such restrictions and penalties clearly and substantially burden Appellants’ religious practice, triggering First Amendment and KRFRA protections.
B. The Commonwealth’s application of the Orders to burden Appellants’ free exercise of religious beliefs is subject to strict scrutiny under the First Amendment and KRFRA.
The Commonwealth’s application of the Orders to burden Appellants’ religious practices must be subjected to strict scrutiny under KRFRA, which specifies that the Commonwealth may not substantially burden religious exercise unless it “proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.” Under the First Amendment, however, the Orders just as clearly must be subjected to strict scrutiny because they
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are not neutral or generally applicable, and therefore “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Lukumi, 508 U.S. at 531–32.
“Neutrality and general applicability are interrelated, and . . . failure to satisfy one requirement is a likely indication that the other has not been satisfied.” Lukumi, 508 U.S. at 531. A law is not neutral “if the object of the law is to infringe upon or restrict practices because of their religious motivation.” Lukumi, 508 U.S. at 533. Courts first look to the text, but “facial neutrality is not determinative. The Free Exercise Clause . . . extends beyond facial discrimination [and] forbids subtle departures from neutrality.” Id. at 533–34 (cleaned up). The First Amendment prohibits hostility that is “masked, as well as overt.” Id. The Orders are not facially neutral, but even if so, they covertly depart from neutrality by treating “faith-based” gatherings differently from non-religious gatherings.
Similarly, to determine general applicability courts focus on disparate treatment of similar conduct. Lukumi, 508 U.S. at 542. A law is not generally applicable where “inequality results” from the government’s “decid[ing] that the governmental interests it seeks to advance are worthy of being pursued only against conduct with religious motivation.” Id. at 543. Thus, a law “fall[s] well below the minimum standard necessary to protect First Amendment rights” when the government “fail[s] to prohibit nonreligious conduct that endangers these
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interests in a similar or greater degree” than the prohibited religious conduct. Id. (emphasis added).
The Orders fail neutrality on facial examination, and fail both neutrality and general applicability on actual enforcement. First, the orders facially prohibit “mass gatherings” broadly, including “faith-based” gatherings, but then expressly exempt a multitude of commercial and nonreligious activities involving crowds (e.g., shopping at liquor, warehouse, and supercenter stores). (V.Compl. ¶¶ 26–34, Exs. D–F.) Exempted gatherings are permitted if distancing and hygiene guidelines are followed (“when possible” and to the extent “practicable”), but “faith-based” gatherings are prohibited even if distancing and hygiene guidelines are followed religiously. (Id.) And, while a religious group can meet for secular purposes, it cannot have a “religious service.” (AG Br. 4–5.)
Second, the Orders were not applied neutrally or generally. Rather, Governor Beshear singled out religious worship gatherings in his Good Friday threats, and the Kentucky State Police were only dispatched to the Church on Easter Sunday, even as crowds and masses of cars and people populated nearby shopping centers. (See supra p. 8.) Where the government “has targeted religious worship” for disparate treatment—such as parking in the Church’s parking lot—while “not prohibit[ing] parking in parking lots more broadly—including, again, the parking lots of liquor stores,” there is no neutrality. On Fire, 2020 WL 1820249, at *6.
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On the same day the district court entered its TRO/PI Order, the District of Kansas issued a TRO enjoining as unconstitutional executive orders prohibiting religious gatherings of more than ten persons, even though the orders “begin with a broad prohibition against mass gatherings,” because “they proceed to carve out broad exemptions for a host of secular activities, many of which bear similarities to the sort of personal contact that will occur during in-person religious services.” First Baptist Church. v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, at *5 (D. Kan. Apr. 18, 2020) [hereinafter First Baptist]. The court found religious gatherings were “targeted for stricter treatment due to the nature of the activity involved, rather than because such gatherings pose unique health risks that mass gatherings at commercial and other facilities do not, or because the risks at religious gatherings uniquely cannot be adequately mitigated with safety protocols,” and, “the disparity has been imposed without any apparent explanation for the differing treatment of religious gatherings.” Id. at *7. Thus, the court concluded, “churches and religious activities appear to have been singled out among essential functions for stricter treatment. It appears to be the only essential function whose core purpose—association for the purpose of worship—had been basically eliminated.” Id. (emphasis added).
As demonstrated in On Fire and First Baptist—both COVID-19 era decisions on all fours with this case—if large gatherings at liquor, warehouse, and supercenter stores are not prohibited, even though bringing people together more than
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Appellants’ conscientiously distanced and sanitized worship services, then it is obvious the Commonwealth has neither neutrally nor generally applied the Orders, but instead has targeted “faith-based” gatherings for discriminatory treatment.
C. The Commonwealth’s Application of the Orders Cannot Withstand Strict Scrutiny and Should Be Restrained.
Because the Commonwealth’s discriminatory application of the Orders triggers strict scrutiny under the First Amendment and KRFRA (see supra pts. I.A– B), the Commonwealth is subject to “the most demanding test known to constitutional law,” Russell v. Lundergan-Grimes, 784 F.3d 1037, 1050 (6th Cir. 2015) (cleaned up), which is rarely passed. See Burson v. Freeman, 504 U.S. 191, 200 (1992) (“[W]e readily acknowledge that a law rarely survives such scrutiny . . . .”). “Strict-scrutiny review is strict in theory but usually fatal in fact.” Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1984) (cleaned up) (emphasis added). This is not that rare case.
To be sure, efforts to contain the spread of a deadly disease are “compelling interests of the highest order.” On Fire, 2020 WL 1820249, at *7. But where the Commonwealth permits regular large gatherings of persons for commercial and nonreligious purposes, while expressly prohibiting Appellants’ “faith-based” gatherings, the Commonwealth’s assertions of a compelling interest are substantially diminished. Indeed, the Orders “cannot be regarded as protecting an interest of the highest order . . . when [they leave] appreciable damage to that supposedly vital
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interest unprohibited.” Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002) (emphasis added).
Whatever interest the Commonwealth purports to claim, however, it cannot show the Orders and their enforcement are narrowly tailored to be the least restrictive means of protecting that interest. And it is the Commonwealth’s burden to make the showing because “the burdens at the preliminary injunction stage track the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). “As the Government bears the burden of proof on the ultimate question of . . . constitutionality, [Appellants] must be deemed likely to prevail unless the Government has shown that [Appellants’] proposed less restrictive alternatives are less effective than [the Orders].” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (emphasis added).
The Commonwealth cannot carry its burden because it cannot demonstrate that it seriously undertook to consider other, less-restrictive alternatives and ruled them out for good reason. To meet this burden, the Commonwealth must show that it “seriously undertook to address the problem with less intrusive tools readily available to it,” meaning that it “considered different methods that other jurisdictions have found effective.” McCullen v. Coakley, 134 S. Ct. 2518, 2539 (2014) (emphasis added). And the Commonwealth cannot meet its burden by showing “simply that the chosen route is easier.” Id. at 2540. Thus, the
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Commonwealth “would have to show either that substantially less-restrictive alternatives were tried and failed, or that the alternatives were closely examined and ruled out for good reason.” Bruni v. City of Pittsburgh, 824 F.3d 353, 370 (3d Cir. 2016) (emphasis added). Furthermore, “[i]t is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.” Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). “There must be a fit between the . . . ends and the means chosen to accomplish those ends.” Sorrell v. IMS Health, Inc., 564 U.S. 552, 572 (2011) (cleaned up).
The Commonwealth utterly fails this test. The Commonwealth tried nothing else. For religious gatherings, it considered nothing but a complete prohibition, while expansively exempting numerous businesses and non-religious entities, such as liquor, warehouse, and supercenter stores. (V.Compl. ¶¶ 24–34, EXS. D–F.) The Commonwealth has not and cannot state why or how crowds and masses of persons at a warehouse or supercenter store, where distancing and hygiene are only required if “practicable” and “when possible,” are any less “dangerous” to public health than a responsibly distanced and sanitized worship service, yet the Commonwealth exempted the non-religious gatherings and prohibited Appellants’ church services.
Examples abound of less restrictive approaches that the Commonwealth neither tried nor considered. One option tried successfully in other jurisdictions is to exempt religious worship from gathering prohibitions altogether. Florida, Indiana,
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and Ohio have declared religious worship among essential activities which may
continue. (V.Compl. ¶¶ 70–71, Exs. L, M; AG Br. 6–7.) Another less restrictive
alternative is allowing churches to continue in-person services provided they observe
distancing and hygiene practices. Arizona, Arkansas, Alabama, and Connecticut
have all taken this approach. (V.Compl. ¶¶ 72–75, Exs. N–Q.) Appellants have
demonstrated they already observe the distancing and hygiene guidance that the
Commonwealth deems sufficient (to the extent “practicable” and “when possible”)
for non-religious gatherings. (V.Compl. ¶¶ 19-36, 56–63.) There is no justification
for depriving Appellants of the same consideration or benefit.
Indeed, as the district court exquisitely stated in On Fire, the Commonwealth
is unlikely to be able to demonstrate that it deployed the least restrictive means
because the Orders, and their application,
are “underinclusive” and “overbroad.” They’re underinclusive because they don’t prohibit a host of equally dangerous (or equally harmless) activities that the Commonwealth has permitted . . . . Those . . . activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is “essential,” so is [church]. On Fire, 2020 WL 1820249, at *7 (emphasis added) (footnote omitted); see also
First Baptist, 2020 WL 1910021, at *7 (D. Kan. Apr. 18, 2020).
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The Commonwealth’s failure to tailor its gathering restrictions to closely fit the safety ends it espouses, and failure to try other, less restrictive alternatives that have worked and are working in other jurisdictions across the country, demonstrates that the Commonwealth cannot satisfy its burden to prove narrow tailoring. Thus, the Commonwealth’s enforcement of the Orders fails strict scrutiny, and the IPA is warranted. II. PLAINTIFFS HAVE SUFFERED, ARE SUFFERING, AND WILL
CONTINUE TO SUFFER IRREPARABLE INJURY ABSENT AN IPA RESTRAINING AND ENJOINING THE COMMONWEALTH. Not only is Governor Beshear’s choosing for Appellants to forego established constitutional rights to “attend virtual services” (AG Br.8 n.3) offensive and baseless as a matter of settled law, it also betrays the Governor’s failure to understand that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”7 Elrod v. Burns, 427 U.S. 347, 373 (1976); see also 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure §2948.1 (2d ed. 1995) (“When an alleged constitutional right is involved, most courts hold that no further showing of
7 Prescribing the manner of Kentuckians’ worship is also an Establishment Clause violation. See ACLU of Ohio v. Capital Square Rev. & Advisory Bd., 243 F.3d 289, 294 (6th Cir. 2001) (Establishment Clause forbids government’s “compel[ling] the citizens to worship under a stipulated form of discipline” (quoting Terret v. Taylor, 13 U.S. (9 Cranch) 43, 49 (1815)).
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irreparable injury is necessary.” (emphasis added)). Thus, demonstrating irreparable injury in this matter “is not difficult. Protecting religious freedom was a vital part of our nation’s founding, and it remains crucial today.” On Fire, 2020 WL 1820249, at *9 (emphasis added). III. THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST
WARRANT AN IPA. An IPA enjoining enforcement of the Orders on Appellants’ responsibly conducted church services will impose no harm on the Commonwealth. “[T]here can be no harm to [the government] when it is prevented from enforcing an unconstitutional statute . . . .” Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004). But for Appellants, “even minimal infringements upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.” Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009). Indeed, absent an IPA, Appellants “face an impossible choice: skip [church] service[s] in violation of their sincere religious beliefs, or risk arrest, mandatory quarantine, or some other enforcement action for practicing those sincere religious beliefs.” On Fire, 2020 WL 1820249, at *9. An IPA is in the public interest, too. “Injunctions protecting First Amendment freedoms are always in the public interest.” ACLU of Ill. v. Alvarez, 679 F.3d 583, 590 (7th Cir. 2012) (emphasis added). “First Amendment rights are not private rights of the appellants so much as they are rights of the general public. Those guarantees
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[are] for the benefit of all of us.” Machesky v. Bizzell, 414 F.2d 283, 288–90 (5th Cir. 1969) (cleaned up). “[T]he public has a profound interest in men and women of faith worshipping together [in church] in a manner consistent with their conscience.” On Fire, 2020 WL 1820249, at *9 (emphasis added). Thus, the balance of the equities tips decidedly in Appellants’ favor, and an IPA is in the public interest.
CONCLUSION For all of the foregoing reasons, Appellants respectfully request that the Court (1) issue injunction pending appeal, restraining and enjoining Governor Beshear, all Commonwealth officers, agents, employees, and attorneys, and all other persons in active concert or participation with them, from enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with the Orders (specifically the March 19 and 25 orders, V.Compl. Exs. D, F) or any other order to the extent any such order prohibits drive-in church services at the Church, or inperson church services at the Church if the Church meets the social distancing and hygiene guidelines pursuant to which the Commonwealth allows so-called “lifesustaining” commercial and non-religious entities (e.g., liquor stores, warehouse clubs, supercenters, and office buildings) to accommodate large gatherings, crowds, or masses of persons without numerical limit; and, or in the alternative, (2) order
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expedited briefing on a significantly shorter schedule than currently set, oral argument, and ultimate disposition of this appeal.

Respectfully submitted:

/s/ Roger K. Gannam Mathew D. Staver, Counsel of Record Horatio G. Mihet Roger K. Gannam Daniel J. Schmid LIBERTY COUNSEL P.O. Box 540774 Orlando, Florida 32854 (407) 875-1776 court@LC.org | hmihet@LC.org rgannam@LC.org | dschmid@LC.org
Attorneys for Plaintiffs–Appellants

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS
1. This document complies with the type-volume limitation of Fed. R.

App. P. 32(a)(7)(B). Not counting the items excluded from the length by Fed. R.

App. P. 32(f), this document contains 5,119 words.

2. This document complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6). This

document has been prepared using Microsoft Word in 14-point Times New Roman

font.

DATED this April 30, 2020.

/s/ Roger K. Gannam Roger K. Gannam Attorney for Plaintiffs–Appellants

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed via the Court’s ECF filing system and therefore service will be effectuated by the Court’s electronic notification system upon all counsel or parties of record:

DATED this April 30, 2020.

/s/ Roger K. Gannam Roger K. Gannam Attorney for Plaintiffs–Appellants

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No. 20-5427
UNITED STATES COURT OF APPEALS for the SIXTH CIRCUIT
MARYVILLE BAPTIST CHURCH, INC.; DR. JACK ROBERTS Plaintiffs-Appellants v. ANDY BESHEAR,
in his official capacity as Governor of the Commonwealth of Kentucky Defendant-Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY NO. 3:20-CV-00278 Before the Honorable David J. Hale
GOVERNOR ANDY BESHEAR’S RESPONSE IN OPPOSITION TO PLAINTIFFS-APPELLANTS’ EMERGENCY MOTION FOR INJUNCTION
Defendant-Appellee Andy Beshear, in his official capacity as Governor of the Commonwealth of Kentucky, hereby responds in opposition to Plaintiffs’Appellants’ Emergency Motion. Plaintiffs fail to carry their burden to warrant emergency or preliminary relief, and misrepresent the facts. Accordingly, this Court should deny Plaintiffs ’ motion.
EXHIBIT B

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FACTUAL BACKGROUND I. Kentucky Acts Quickly To Prevent The Spread Of COVID-19.
In Kentucky, Governor Beshear and the Cabinet for Health and Family Services (“CHFS”) began exercising their emergency powers under KRS Chapters 39A, 194A and 214 to contain the spread of the virus. On, March 6, the Governor declared a State of Emergency. (Ky. Exec. Order No. 2020-215).1 As the number of confirmed COVID-19 cases increased, the Governor and CHFS took additional steps to prevent its spread.
On March 19, 2020, CHFS issued an Order prohibiting all mass gatherings, defined to include “any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faithbased, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” (CHFS Order, Mar. 19, 2020).2 Governor Beshear has taken additional measures to stop the pandemic, including by also closing all businesses that are not life-sustaining. (Ky. Exec. Order No. 2020-257).3 Kentuckians have
1 Available at https://governor.ky.gov/attachments/20200306_ExecutiveOrder_2020-215.pdf (last visited on May 1, 2020). 2 Available at https://governor.ky.gov/attachments/20200319_Order_MassGatherings.pdf (last visited May 1, 2020). 3 Available at https://governor.ky.gov/attachments/20200325_ExecutiveOrder_2020-257_Healthy-at-Home.pdf (last visited May 1, 2020).
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answered the call of public officials. Data suggest social distancing is “flattening
the curve.”4
II. Following The Guidance Of President Trump And The CDC, The Commonwealth Prohibits All Mass Gatherings.
Like other emergency orders, the Order prohibiting mass gatherings was
issued based on the guidance and recommendations of public health officials and
the CDC and The White House, encouraging social distancing and recommending
that people avoid large and small gatherings in private places and public spaces.5,6,7
The CDC stresses that limiting face-to-face contact with others is the best way to
4 Shay McAlister and Andrea Ash, Are Kentucky and Indiana actually ‘flattening the curve?’ (WHAS11 News, Mar. 26, 2020) (last updated Mar. 27, 2020) (last visited Apr. 16, 2020); Garrett Wymer, In the middle of a ‘critical’ month, how does Kentucky’s ‘curve’ compare?, WKYT (Apr. 16, 2020), available at https://www.wkyt.com/content/ news/In-the-middle-of-a-critical-month-is-Kyflattening-the-curve-569701941.html (las visited May 1, 2020). 5 Social Distancing, Quarantine, and Isolation, Centers for Disease Control and Prevention, available at https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/social-distancing.html (last visited May 1, 2020). 6 Interim Guidance: Get Your Mass Gatherings or Large Community Events Ready for Coronavirus Disease 2019 (COVID-19), Centers for Disease Control and Prevention, available at https://www.cdc.gov/coronavirus/2019ncov/downloads/Mass-Gatherings-Document_FINAL.pdf (last visited May 1, 2020). 7 The President’s Coronavirus Guidelines for America: 30 Days to Stop the Spread, Do Your Part to Slow the Spread of the Coronavirus, available at https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_ coronavirusguidance_8.5x11_315PM.pdf (last visited May 16, 2020).
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reduce the spread of COVID-19.8 The CDC directs people to stay at least six feet
away from each other, not gather in groups, and stay out of crowded places and
avoid mass gatherings. Id. (See Affidavit of Dr. Steven Stack, Apr. 22, 2019, ¶¶
15-18 (attached as Exhibit A).) On March 29, 2020, the CDC revised its guidance
on mass gatherings based on the guidance of The White House. The CDC stated,
“During the next 30 days, individuals and organizations should cancel or postpone in-person events that consist of 10 people or more throughout the U.S.”9 The
White House recommended avoiding social gatherings in groups of 10 or more people.10
Epidemiological evidence shows mass gatherings can result in the spread of
COVID-19 and deaths. In mid-March, a mass gathering in Hopkins County
resulted in an outbreak of COVID-19, with more than 50 people becoming infected
8 Social Distancing, Quarantine, and Isolation, Centers for Disease Control and Prevention, available at https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/social-distancing.html (last visited May 1, 2020). 9 Interim Guidance: Get Your Mass Gatherings or Large Community Events Ready for Coronavirus Disease 2019 (COVID-19), Centers for Disease Control and Prevention, available at https://www.cdc.gov/coronavirus/2019ncov/downloads/Mass-Gatherings-Document_FINAL.pdf (last visited May 1, 2020). 10 The President’s Coronavirus Guidelines for America: 30 Days to Stop the Spread, Do Your Part to Slow the Spread of the Coronavirus, available at https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_ coronavirusguidance_8.5x11_315PM.pdf (last visited May 1, 2020).
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and, to date, the loss of six lives. (Stack Aff., ¶¶ 40-45.)11,12,13 On March 27, 2020,
Hopkins County had only two confirmed cases of COVID-19; two weeks later, it
had 83 confirmed cases, making it the fastest-growing county in the
Commonwealth.14 In Pulaski and Calloway counties, two different church
congregations of around 200 people went into self-quarantine after positive cases
were confirmed in those counties.15
11 Bailey Loosemore and Mandy McClaren, How a church revival in a small Kentucky town led to a deadly coronavirus outbreak, The Courier-Journal (Apr. 2, 2020), available at https://www.courierjournal.com/story/news/local/2020/04/02/coronavirus-kentucky-hopkins-countychurch-revival-led-outbreak/5111379002/ (last visited May 1, 2020). 12 Bailey Loosemore, Kentucky church responds to 'unjust criticism' about revival at center of COVID-19 outbreak, The Courier-Journal (Apr. 4, 2020), available at https://www.courier-journal.com/story/news/local/2020 /04/04/coronaviruskentucky-hopkins-county-church-responds-criticism/2947251001/ (last visited May 1, 2020). 13 Joe Sonka, et al., Coronavirus hot spots plague Western Kentucky, Southeast Indiana and Northern Tennessee, The Courier-Journal (Apr. 10, 2020), available at https://www.courier-journal.com/story/news/politics/2020/04/10/ coronavirus-hotspots-plague-kentucky-indiana-and-tennessee/5103043002/ (last visited May 1, 2020). 14 Joe Sonka, et al., Coronavirus hot spots plague Western Kentucky, Southeast Indiana and Northern Tennessee, The Courier-Journal (Apr. 10, 2020), available at https://www.courier-journal.com/story/news/politics/2020/04/10/ coronavirus-hotspots-plague-kentucky-indiana-and-tennessee/5103043002/ (last visited May 1, 2020). 15 Savannah Eadens, Dozens in quarantine after being exposed to COVID-19 at churches in Calloway, Pulaski county, The Courier-Journal (Mar. 20, 2020), available at https://www.courier-journal.com/story/news/2020/03/20/ coronaviruskentucky-members-multiple-churches-quarantine/2888205001/ (last visited Apr. 17, 2020).
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III. The Majority Of Kentuckians Comply With Measures.
In Kentucky, the vast majority of groups have complied with social
distancing measures and the prohibition on mass gatherings. Demonstrating the
general applicability of the March 19 Order, on April 10, 2020, the Tourism, Arts
and Heritage Cabinet continued its Order closing the Kentucky Performing Arts
Center pursuant to the Order and Executive Orders 2020-243 and 2020-257.16 The
Department of Fish and Wildlife suspended all fishing tournaments in Kentucky
and canceled all of its summer camps.17,18 Sporting events have also been canceled
during the pandemic. The Kentucky High School Athletic Association suspended
the state basketball tournaments and indefinitely suspended all spring sports.19
Amateur National Motocross events ky have been postponed indefinitely.20
16 Tourism, Arts and Heritage Cabinet Order (Apr. 10, 2020) (attached as Ex. B). 17 Available at https://fw.ky.gov/Fish/Pages/Tournament-Fishing.aspx (last visited May 1, 2020). 18 Available at https://fw.ky.gov/Education/Pages/Summer-Camps.aspx (last visited May 1, 2020). 19 Jason Frakes, KHSAA announces indefinite suspension of all spring sports because of coronavirus pandemic, The Courier-Journal (Mar. 31, 2020), available at https://www.courier-journal.com/story/sports/preps/kentucky/2020/03/31/ coronavirus-khsaa-announces-suspension-all-spring-sports/5096810002/ (last visited May 1, 2020). 20 Competition Bulletin 2020-5: Area Qualifiers Postponed Through March (Mar. 17, 2020), available at https://www.courier-journal.com/story/sports/preps/ kentucky/2020/03/31/coronavirus-khsaa-announces-suspension-all-springsports/5096810002/ (last visited May 1, 2020).
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Religious faiths of different denominations have held virtual services or
drive-in services that adhere to proper social distancing and CDC hygiene
measures. On Easter Sunday, multiple churches in Kentucky that had reportedly
planned to hold in-person services changed to virtual or drive-in services.
Churches in Harlan County that planned to hold in-person services opted for drivein services instead.21 Contrary to Plaintiffs’ representations in their emergency
motion, Governor Beshear and public health officials have repeatedly encouraged
drive-in and virtual faith-based services, so long as social distancing and hygiene measures are implemented and followed. (Stack Aff., ¶¶ 46.)22
On April 12, the Kentucky State Police received and responded to 42
complaints from concerned citizens and community leaders about non-compliance
with executive emergency orders on mass gatherings and social distancing
associated with faith-based organizations. (Affidavit of Commissioner Rodney
Brewer, Apr. 22, 2020, ¶¶ 6-9 (attached as Exhibit C).) In the end, only one of the
21 Sarah Ladd, Easter churchgoers defiant after Kentucky troopers write down their license plate numbers, The Courier-Journal (Apr. 12, 2020), available at https://www.courier-journal.com/story/news/2020/04/12/kentucky-churches-holdin-person-easter-services-despite-order/5127260002/ (last visited May 1, 2020). 22 See, e.g., Governor Andy Beshear, Update on COVID-19 in Kentucky – 3.20.2020 PM, YouTube (Mar. 20, 2020), at 46:45-47:15, available at https://youtu.be/vG_nreWckWw) (last visited May 1, 2020); Governor Andy Beshear, Update on COVID-19 in Kentucky – 4.11.2020, YouTube (Apr. 11, 2020), at 52:08-55:27, available at https://youtu.be/X_1NS02f0CI) (last visited May 1, 2020).
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subjects of those complaints refused to comply with the executive orders. (Id., ¶ 10-11.) That organization – Maryville Baptist Church in Bullitt County – held inperson church services on April 12, with about 50 people attending; it had held another in-person service the prior Wednesday, with more than 40 people attending. Id. Based on media reports, those who attended the service inside were not following CDC social distancing guidelines.23
Neither did those entering and exiting follow them or wear personal protective equipment.
23 See Eileen Street, Maryville Baptist Church Holds In-Person Service, Spectrum News 1 (Apr. 12, 2020), available at https://spectrumnews1.com/ky/lexington/ news/2020/04/13/maryville-baptist-church-easter-sunday-in-person-service (last visited Apr. 17, 2020).
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Id.
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Most attendees of the April 12 service were not Bullitt County residents.24 At least two people who attended the in-person service were residents of New Jersey, one of the epicenters of the pandemic in America, id., who were photographed shaking the pastor’s hand.
24 Shellie Sylvestri, Most attendees of Easter service in Maryville not Bullitt Co. residents, Wave 3 News (Apr. 14, 2020), available at https://www.wave3.com/2020/04/14/most-attendees-easter-service-maryville-notbullitt-co-residents/ (last visited Apr. 17, 2020).
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As of the date of this filing, New Jersey has more than 121,000 confirmed cases of COVID-19, and more than 7,000 deaths.25
The pastor recognized the danger to those attending in-person services, saying prior to April 12 that, “I’ve told my son, ‘Don’t come to church.’ I’ve told other folks, ‘Don’t come to church … watch the live stream.’”26 Yet the pastor still refused to comply with the mass gatherings Order and hold in-person services.
25 New Jersey COVID-19 Dashboard, available at https://covid19.nj.gov/#liveupdates (last visited May 1, 2020). 26 Jessie Cohen, Maryville Baptist Church holds Bible study against Gov. Beshear’s recommendation, WHAS 11 (Apr. 9, 2020), available at https://www.whas11.com/article/news/health/coronavirus/ maryville-baptistchurch-holds-wednesday-bible-study-against-beshear-recommendation/41722c63bd4-1875-4055-9a8d-47eb9235c572 (last visited May 1, 2020).
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Businesses and groups that have endangered Kentuckians’ lives by refusing to comply have faced consequences. Between April 1 and 21, the Department of Workplace Standards within the Labor Cabinet received referrals of 170 complaints from the KYSafer non-compliance citizen reporting hotline. (Affidavit of Commissioner Kimberlee C. Perry, Apr. 21, 2020, ¶ 5 (attached as Ex. D).) The Department performed in-person investigations of 130 of those complaints; of the remaining 40 complaints, the Department is awaiting investigation or has counseled the business on proper compliance. (Id., ¶ 7.) The investigations verified that 89 businesses or organizations were complying or that the complaints were not verified. (Id., ¶ 8.) As of April 21, the Department had issued 41 closure orders to businesses or organizations, including, but not limited to, ones that are not lifesustaining but continued to operate and others that had not implemented social distancing and hygiene measures as recommended by the CDC.27
From March 19 through April 21, 2020, the Kentucky State Police received approximately 70 complaints from concerned citizens about non-compliance with the March 19 Order. (Brewer Aff., ¶ 3.) The complaints referenced mass gatherings at various locations, including hair salons, gas stations, and flea
27 See Eileen Street, Attendees at Maryville Baptist Service Face No Charges, Spectrum News 1 (Apr. 13, 2020), available at https://spectrumnews1.com/ky/lexington/news/2020/04/13/kentucky-no-chargesmaryville-baptist-church-bullitt-county- (last visited Apr. 17, 2020); (Id., ¶ 9.)
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markets, and in neighborhoods and personal residences, and the majority of the groups dispersed prior to Troopers’ arrival. (Id., ¶¶ 4-5.) The Kentucky State Police has increased routine patrols, patrolling about 839 retail locations a total of 6,173 times. (Id., ¶¶ 12-13.) IV. Plaintiffs File Suit.
On April 17, 2020, Plaintiffs filed suit. The District Court denied the motion for temporary restraining order the next day. Plaintiffs appealed the District Court’s Order to this Court six days later and the same day filed in the District Court an emergency motion for injunction pending appeal. The District Court conducted a telephonic conference regarding that motion on April 30, 2020.
Plaintiffs blatantly misrepresent the facts of the action pending in the District Court on their motion for an emergency injunction pending appeal. First, during the telephonic conference with the Magistrate on April 30, Plaintiffs’ counsel actually asked for a delay in the deadline to file their reply, from May 7 until May 8, when the Magistrate suggested the reply be due on May 7 because of Plaintiffs’ counsel’s stated urgency for briefing on the motion. In addition, upon the Magistrate asking counsel for the parties if they desired oral argument, Plaintiffs’ counsel waived oral argument and the Magistrate stated she would inform the presiding Judge that the parties waived oral argument. At no point during the telephonic conference or between the Magistrate’s text Order scheduling it, did
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Plaintiffs or their counsel urge a decision on their motion prior to Sunday, May 3 or Wednesday, May 6. In fact, Plaintiffs’ counsel did not assert during the telephonic conference that their motion be decided without a response from Governor Beshear, and they did not object to Governor Beshear being provided an opportunity to be heard through a response. Contrary to Plaintiffs’ argument (see Doc. 4-1, Pages: 10-12), neither the District Court nor the Magistrate demonstrated a commitment to a particular resolution by scheduling expedited briefing on Plaintiffs’ motion below. Instead, Plaintiffs agreed upon the briefing schedule and, in turn, agreed that a decision on the motion would not come until after the ensuing Sunday and Wednesday.
As for Appellants’ contention that the District Court delay in entering an order after denying the temporary restraining order requires an emergency injunction here, the District Court denied the motion on April 18 (Doc. 4-1), and Plaintiffs waited until April 24 to file their notice of appeal (Doc. 4-3). At no time between – which included a Sunday and a Wednesday – did Appellant file any pleading in the District Court requesting that it enter an order setting an expedited briefing schedule on the motion for a preliminary injunction, or an order scheduling a telephonic conference, or requesting emergency relief.
In their motion, Plaintiffs claim the Governor “tacitly agreed” that the District Court lacks jurisdiction to hear the motion Plaintiffs filed and asked the
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District to Decide. (Doc. 4-1, Page 5 n. 3.) Plaintiffs again misrepresent the facts in an attempt to obtain emergency relief from this Court that is not warranted. During the telephonic conference with the Magistrate, Plaintiffs’ counsel argued the District Court lacked jurisdiction because of their notice of appeal, but asserted the District Court should decide the motion before they could file the same motion here. Counsel for Governor Beshear did not state any position on Plaintiffs’ jurisdiction argument; however, counsel did inform the Magistrate of the briefing schedule of this Court. Informing the Magistrate of the briefing schedule of this Court was not agreement with Plaintiffs’ argument on jurisdiction, tacitly or otherwise.
ARGUMENT Plaintiffs seek the extraordinary remedy of an emergency injunction pending their interlocutory appeal (IPA). This Court lacks jurisdiction to grant such relief. Not only is the remedy extraordinary by its own right, Plaintiffs seek the remedy before this Court while simultaneously seeking the same relief before the District Court. See Plaintiffs’ Emergency Motion for Injunction Pending Appeal, Maryville Baptist Church, et al. v. Beshear, Case 3:20-cv-00278-DJH, Doc. 17, PageID #: 254 (W.D.Ky Apr. 24, 2020). As required by Fed. R. App. P. 8(a)(1)(C), before seeking the IPA from this Court, Plaintiffs first sought the IPA from the District
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Court. Yet, before allowing the District Court a chance to rule on the motion, Plaintiffs filed this motion. The federal rules do not permit such relief.
Plaintiffs contend the IPA meets the requirements of Fed. R. App. P. 8(a)(2)(A), but their filing of emergency request for IPA before the District Court precludes the application of that Rule. Moreover, Plaintiffs cannot meet the standard set forth in Fed. R. App. P 8(a)(2)(A). Clearly, “moving first in the district court” was not “impracticable,” because the record indicates that Plaintiffs did move for this relief in the District Court. Nor has the District Court “denied the motion or failed to afford the relief requested[.]” Just yesterday, the parties participated in a scheduling conference and agreed to a briefing schedule on the emergency request for IPA in the District Court. Then, Plaintiffs sought – and received – additional time to brief their motion, beyond the schedule proposed by the District Court.
This Court should deny Plaintiffs’ motion while they seek the same relief from the lower court. Nevertheless, beyond the procedural pitfalls of their motion, Plaintiffs are not entitled to the requested relief because they cannot demonstrate a strong likelihood of success on the merits, irreparable injury or a balance of the equities in their favor.
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I. Plaintiffs Cannot Succeed On The Merits. As this Court recently noted, “We generally lack jurisdiction to hear an
appeal of a district court’s decision to grant or deny a TRO.” PRE-TERM Cleveland, et al. v. Attorney General of Ohio, et al., Case No. 20-3365, 2020 WL 1673310, *1 (6th Cir. Apr. 6, 2020). This Court stated it would only entertain “interlocutory appeals of TROs that threaten to inflict irretrievable harms or consequences before the TRO expires or, rather than preserving the status quo, act as a mandatory injunction requiring affirmative action.” Id. (citation omitted). The Court determined it lacked jurisdiction over an appeal of a temporary restraint of an Ohio order prohibiting constitutionally-protected elective procedures. Id.
Here, Plaintiffs do not attempt to demonstrate they can clear this jurisdictional hurdle. Their failure to argue an “irretrievable harm or consequence” or a requirement of “affirmative action” precludes this Court from exercising jurisdiction over the interlocutory appeal. See id., at *2. Instead, Plaintiffs argue the merits of the claims below as if that alone gets them access to this Court before the District Court has taken any action other than denying the motion for a temporary restraining order. Again, Plaintiffs attempt to jump the gun to bypass the
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lower court. Regardless, Plaintiffs’ arguments would still not meet the standard to warrant an injunction pending the interlocutory appeal.28
The Governor has authority to issue the emergency order challenged here. KRS 39A.100(1)(j) authorizes the Governor “to perform and exercise other functions, powers, and duties deemed necessary to promote and secure the safety and protection of the civilian population” during a declared state of emergency. KRS 39A.100(1)(f) authorizes the Governor “[t]o exclude all nonessential, unauthorized, disruptive, or otherwise uncooperative personnel from the scene of an emergency, and to command those groups assembled at the scene to disperse.” KRS 39A.100(1)(b) allows the Governor to require state agencies to respond to the emergency or disaster in the manner directed.
Here, in accordance with the authority under KRS Chapters 39A, 194A and 214, CHFS, as a designee of the Governor, issued the Order prohibiting all mass gatherings. The intent of the Order is to implement CDC guidelines to limit groups of people gathering in close proximity for a prolonged period. The Governor, the
28 Further, there is no need for an expedited briefing schedule in this appeal. As of May 20, 2020, in-person faith-based services will again be permitted in the Commonwealth. See Governor Beshear Outlines Road Ahead for Gradual Reopening of Businesses (Apr. 30, 2020), available at https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId =148 (last visited Apr. 30, 2020).
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Cabinet, and local officials have enforced the order uniformly, without discrimination.
Appellants fail in their claim that the Governor’s prohibition of mass gatherings to curb the spread of COVID-19 violates their right to practice their religion, because the order prohibits all mass gatherings in accordance with CDC guidelines, while also allowing alternative means to communally worship that the Governor and officials have encouraged.
The First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]” U.S. CONST., amend. I. The free exercise clause embodies a liberty applied to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). However, the clause “does not include liberty to expose the community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (citation omitted). Nor does the clause “relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n. 3 (1982)).
The clause “embraces two concepts – freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct
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remains subject to regulation for the protection of society.” Cantwell 310 U.S. at 303-04 (citing Reynolds v. United States, 98 U.S. 145 (1878); Davis v. Beason, 144 U.S. 33 (1890)). The holding of “religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” Minersville School Dist. Bd. of Ed. v. Gobitis, 30 U.S. 586, 594-95 (1940). Under the prevailing standard, “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing Smith, 494 U.S. 872).
State action is not neutral if the purpose “is to infringe upon or restrict practices because of their religious motivation,” or “the purpose . . . is the suppression of religion or religious conduct.” New Doe Child #1 v. Congress of United States, 891 F.3d 578, 591 (6th Cir. 2018) (quoting Lukumi, 508 U.S. at 533). “A law is not of general applicability if it ‘in a selective manner impose[s] burdens only on conduct motivated by religious belief[.]’” Michigan Catholic Conf. and Catholic Family Serv.’s v .Burwell, 755 F.3d 372 (6th Cir. 2014) (quoting Lukumi, 508 U.S. at 543).
The Governor’s Order – both on its face and in its application – is neutral and of general applicability. As the lower court correctly recognized, by its plain
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terms the Order prohibits “all mass gatherings,” not just religious gatherings. Maryville Baptist Church, Inc., Civil Action No. 3:20-cv-278-DJH, Order (W.D. Ky. Apr. 18, 2020) (Doc 4-1.) In fact and practice, its entire purpose and success hinges upon it to applying to all. Appellants present no evidence the Order targeted their mass gathering because of its religious nature. Rather, the Order targets any intent to gather in large groups. In its application, the Order has forced the closure of events with no religious affiliation, including movie theaters, concerts, and sporting events. The District Court recently acknowledged this fact. Id. at 5. State and local officials have ordered the closure of businesses for non-compliance with social distancing and hygiene measures, as well as businesses that are not lifesustaining but continued to operate in violation of orders. Thus, even though the Order may “burden” faith-based mass gatherings, it equally burdens all mass gatherings, regardless of the religious nature. Its purpose is to prevent the spread of a disease that is particularly infectious, with no cure or treatment. The Order does not discriminate or differentiate among groups, because COVID-19 does not differentiate or discriminate.
The Order does not exempt secular mass gatherings; nor is it applied in a manner that would exempt secular mass gatherings. In fact, the Order does not provide any exceptions at all. Cf. Ward v. Polite, 667 F.3d 727, 738-39 (6th Cir. 2012). Rather, the Order provides examples of what a “mass gathering” is and
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what it is not; the distinction is that it closes any event the purpose of which is to congregate person-to-person for an extended period to engage in a particular activity. The District Court recognized this distinction, writing that presence at a grocery or liquor store “is a single and transitory experience: individuals enter the store at various times to purchase items; they move around the store individually– subject to strict social-distancing guidelines set out by state and federal health authorities […]–and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose.” Maryville Baptist Church, Inc., et al., Order at 4. The Order prohibiting mass gatherings leaves open locations providing services necessary to maintain public health and safety, despite the fact that people are in transit in the location at the same time. However, even in some of those instances, the Governor has required social distancing and hygiene practices and imposed additional restrictions, such as limiting life-sustaining retail businesses to allow one adult per household in at a time.
The Governor’s encouragement of drive-in and online broadcast of faithbased services further demonstrates the Order’s neutrality and general applicability. These options allow the practice and observation of one’s faith without the risk of mass-spreading COVID-19.
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Because the Order is neutral and of general applicability, it is subject to “rational basis review[.]” Miller v. Davis, 123 F. Supp. 3d 924, 938 (E.D. Ky. 2015) (citing Seger v. Ky. High Sch. Athletic Ass’n, 453 Fed. Appx. 630, 634 (6th Cir. 2011) (interpreting Smith, 494 U.S. 872 and Lukumi, 508 U.S. 520)). Under rational basis review, an emergency order will be upheld if it is “rationally related to furthering a legitimate state interest.” Seger, 453 Fed. Appx. 635. An emergency order “subject to rational basis review is accorded a strong presumption of validity.” Id. It should be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). Plaintiffs carry the burden to negate “every conceivable basis which might support it[.]” Id. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).
The facts weighing against Appellants’ arguments are insurmountable. The White House and the CDC have recommended the closure of any establishment or event allowing for a mass gathering. National, state, and local public health officials describe the particular risks of spreading COVID-19 “among people who are in close contact with each other for a prolonged period.” (Stack Affidavit, ¶ 15.) Because the prohibition on mass gatherings is rationally related to the legitimate state interest in stopping the spread of disease, Appellants’ free exercise claim fails.
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II. Appellants Fail To Allege An Irreparable Injury. Generally, courts presume irreparable injury when a plaintiff alleges a
violation of a constitutional right. Overstreet v. Lexington–Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). However, when Supreme Court precedent rebuts the allegation, the presumption gives way to the alleged facts. Id. Appellants cannot demonstrate a strong likelihood of success on the merits and are not entitled to the presumption of irreparable injury.
Having solely relied on that presumption, Appellantss fail to set forth factual allegations to demonstrate an irreparable injury. They do not allege they are currently under a forced quarantine, or that they will miss a specific event due to the Order. They can attend virtual or drive-in church services provide by their own church. They do not allege a specific and forthcoming irreparable injury. As such, they fail to allege an irreparable injury to warrant preliminary injunctive relief. III. Issuance Of The Requested Injunction Would Cause Substantial Harm.
Appellants’ requested relief would cause substantial harm to the public health and safety. As to faith-based mass gatherings, the CDC and the White House have recommended avoiding social gatherings of 10n or more people. See infra. Epidemiological evidence demonstrates that mass gatherings have resulted in the spread of COVID-19. Importantly, those attending a mass gathering, such as in-person faith-based services, not only risk exposure to COVID-19 themselves,
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they also risk exposing anyone they later come into contact with. These risks are exacerbated by the fact that COVID-19 appears to have a long incubation period, and an infected person may spread the virus even if asymptomatic. Allowing inperson faith-based mass gatherings as Plaintiffs request could result in more illness, more deaths, and a higher spike in cases at any given time, resulting in our health care centers becoming overwhelmed.
Additionally, the efforts and sacrifices Kentuckians have made to engage in social distancing and limit their exposure to one another would be sacrificed, and the progress to flatten the curve could be reversed. Apppellants do not have an adequate argument in response. Instead, they argue that there are secular exceptions, which is not the case. There are no exceptions to the mass gatherings order, and activities currently permitted by other orders – shopping for lifesustaining good such as groceries, going through a restaurant drive-thru – are materially different in terms of risk of exposure.. Appellants cannot meet their burden. IV. Issuance Of The Requested Injunction Would Not Serve The Public
Interest. While, “[g]enerally speaking, ‘the public interest is served by preventing the violation of constitutional rights[,]’ . . . enjoining officials from pursuing their chosen policies is not without costs.” League of Women Voters v. Hargett, 400 F.Supp.3d 706, 733-34 (M.D.Tenn. Sept. 12, 2019) (quoting Chabad of S. Ohio &
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Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir. 2004)). Courts, then, are directed to weigh the plaintiffs’ interests against that of the public. Id.
As knowledge of COVID-19 and its spread is constantly evolving, and as cases of the virus continue to increase in the Commonwealth, state and local officials must be able to take rapid, decisive action. Here, the Governor, other constitutional officers, state officials, public health officials, state and federal courts, school districts, local officials, and citizens have all taken action to prevent the spread of COVID-19 – the type of collective action public health officials state is needed to protect public health and safety. The public interest in state officials’ ability to take these measures is significant and overrides the public’s interest in attending in-person faith-based mass gatherings – especially since other ways to worship – and religious services are not singled out or burdened differently from other mass gatherings in the March 19, 2020 Order.29
CONCLUSION Defendant-Appellee Governor Beshear respectfully asks the Court to deny Plaintiffs-Appellants’ Emergency Motion for Injunction Pending Appeal and to Expedite Appeal.
29 For the same reasons stated herein, the Court should reject the arguments the Attorney General raises in his amicus brief (Doc 6).
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Respectfully submitted, /s/ S. Travis Mayo La Tasha Buckner General Counsel S. Travis Mayo Chief Deputy General Counsel Taylor Payne Deputy General Counsel Laura Tipton Deputy General Counsel Marc Farris Deputy General Counsel Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 (502) 564-2611 LaTasha.Buckner@ky.gov travis.mayo@ky.gov taylor.payne@ky.gov laurac.tipton@ky.gov marc.farris@ky.gov Counsel for Governor Andy Beshear
CERTIFICATE OF SERVICE I hereby certify that on May 1, 2020, I electronically filed the foregoing Response via the Court’s CM/ECF system, causing all counsel of record to be served.
/s/ S. Travis Mayo S. Travis Mayo
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Case: 20-5427 Document: 13-3 Filed: 05/01/2020 PageE:X1HIBIT C

ANDY BESHEAR GOVERNOR
JACQUELINE COLEMAN

TOURISM, ARTS AND HERITAGE CABINET
MAYO-UNDERWOOD BUILDING, 5TH FLOOR 500 MERO STREET
FRANKFORT, KENTUCKY 40601 502-564-4270 – OFFICE 502-564-1079 – FAX

MICHAEL E. BERRY

April 10, 2020
Pursuant to the March 6, 2020 Executive Order of Governor Andy Beshear declaring a State of Emergency in the Commonwealth of Kentucky, and subsequent Executive Orders including, but not limited to: a) the March 18, 2020 Executive Order 2020-243 empowering state agencies to take all reasonable and necessary steps to ensure appropriate social distancing and to avoid overcrowding to prevent exposure to and the spread of COVID-19; b) the March 19, 2020 Order prohibiting mass gatherings; and c) the March 25, 2020 Executive Order 2020-257, closing all businesses that are not life-sustaining so that Kentuckians stay healthy at home; I hereby direct and order the Kentucky Performing Arts to continue to keep its facilities closed through Tuesday, June 30, 2020.

____________________________ Michael E. Berry, Secretary Tourism, Arts and Heritage Cabinet

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Case 3:20-cv-00278-DJH-RSE Document 25-3 Filed 05/04/20 Page 1 of 5 PageID #: 380

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MARYVILLE BAPTIST CHURCH, INC., )

and DR. JACK ROBERTS,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity as )

Governor of the Commonwealth of Kentucky, )

)

Defendant.

)

CASE NO. 3:20-cv-00278-DJH

DECLARATION OF DR. JACK ROBERTS 1. I am over the age of 18 years, I have personal knowledge of the matters set forth in this declaration, and I would testify competently as to such matters if called to do so. 2. I am a resident of Bullitt County, Kentucky. 3. I am the pastor of Maryville Baptist Church. 4. I was present at Maryville Baptist Church, 130 Smith Lane, Louisville, KY on Easter Sunday, April 12, 2020, from 9:45 A.M. to 11:45 A.M. E.D.T. 5. I was present at Maryville Baptist Church, 130 Smith Lane, Louisville, KY on Sunday, May 3, 2020, from 9:45 A.M. to 11:45 A.M. E.D.T.; and again from 5:30 P.M. to 7:30 PM E.D.T. 6. I personally witnessed the Easter Sunday Service and the Sunday, May 3, 2020 services held at Maryville Baptist Church, both inside the church building, and the “drive-in” services outside in the parking lot.

1
EXHIBIT C

Case 3:20-cv-00278-DJH-RSE Document 25-3 Filed 05/04/20 Page 2 of 5 PageID #: 381 7. The following photograph accurately depicts the service inside the church on Easter
Sunday, April 12, 2020:
2

Case 3:20-cv-00278-DJH-RSE Document 25-3 Filed 05/04/20 Page 3 of 5 PageID #: 382 8. The following photograph accurately depicts the service inside the church on
Sunday, May 3, 2020:
3

Case 3:20-cv-00278-DJH-RSE Document 25-3 Filed 05/04/20 Page 4 of 5 PageID #: 383 9. The following photograph accurately depicts the parking lot outside the church,
showing every other parking space blocked off for drive-in service, on Sunday, May 3, 2020:
4

Case 3:20-cv-00278-DJH-RSE Document 25-3 Filed 05/04/20 Page 5 of 5 PageID #: 384 I DECLARE under penalty of perjury that the foregoing is true and correct. EXECUTED this May 4, 2020. /s/ Jack Roberts Dr. Jack Roberts
5

 
 Case 3:20-cv-00278-DJH-RSE Document 32 Filed 05/07/20 Page 1 of 9 PageID #: 488

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MARYVILLE BAPTIST CHURCH, INC., )

and DR. JACK ROBERTS,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity as )

Governor of the Commonwealth of Kentucky, )

)

Defendant.

)

CASE NO. 3:20-cv-00278-DJH

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF RENEWED EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL
Plaintiffs, MARYVILLE BAPTIST CHURCH, INC. (“Maryville Baptist Church” or the
“Church”), and DR. JACK ROBERTS (“Dr. Roberts”), pursuant to the Court’s Memorandum of
Conference and Order dated May 5, 2020 (ECF 28), file this brief in support of Plaintiffs’ Renewed
Emergency Motion for Injunction Pending Appeal (ECF 25, “Renewed IPA Motion”) and in reply
to Governor Beshear’s Response in Opposition (ECF 31, “Renewed IPA Response”).
THE COURT SHOULD GRANT PLAINTIFFS’ RENEWED IPA MOTION BECAUSE GOVERNOR BESHEAR HAS NOT BROUGHT THIS COURT ANY NEW REASONS OR ANSWERS TO JUSTIFY ENFORCEMENT OF THE COMMONWEALTH’S ORDERS PROHIBITING PLAINTIFFS’ IN-PERSON WORSHIP SERVICES.
The Sixth Circuit’s Determinations of Likelihood of Success, Irreparable Harm, Balancing of Harms, and Public Interest Are Binding on This Court as Law of the Case.
This Court is bound by what the Sixth Circuit has already decided with respect to an IPA
enjoining the Governor’s enforcement of the Commonwealth’s Orders prohibiting in-person
worship services:

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It is clear that when a case has been remanded by an appellate court, the trial court is bound to proceed in accordance with the mandate and law of the case as established by the appellate court. The law of the case doctrine precludes a court from reconsideration of identical issues. Issues decided at an early stage of the litigation, either explicitly or by necessary inference from the disposition, constitute the law of the case. Hanover Ins. Co. v. Am. Eng'g Co., 105 F.3d 306, 312 (6th Cir. 1997) (cleaned up) (emphasis added). Governor Beshear’s IPA Response acknowledges the existence of the 6th Circuit IPA Order (ECF 23) but pretends the Sixth Circuit did not say what it said. This Court, however, is bound by what was already decided in the 6th Circuit IPA Order. As shown in Plaintiffs Renewed IPA motion, the Sixth Circuit has already concluded, “The Church is likely to succeed on its state and federal claims” (6th Cir. IPA Order 3 (emphasis added)), because, “The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.” (6th Cir. IPA Order 8 (emphasis added); Renewed IPA Mot. 5.) Indeed, the Sixth Circuit wrote, “The Commonwealth has no good answers.” (6th Cir. IPA Order 8; Renewed IPA Mot. 5.) Having concluded the Commonwealth’s COVID-19 Orders likely do not survive strict scrutiny review on the merits as to drive-in and in-person worship services, the Sixth Circuit concluded it unnecessary “to dwell on the remaining three factors” as to drive-in services. (6th Cir. IPA Order 9.) As to in-person services, however, the court proceeded to evaluate the other three factors: As for harm to the claimants, the prohibition on attending any worship service this Sunday and the Sundays through May 20
2

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assuredly inflicts irreparable harm.[1] As for harm to others, an injunction appropriately permits religious services with the same risk-minimizing precautions as similar secular activities, and permits the Governor to enforce social distancing rules in both settings. As for the public interest, treatment of similarly situated entities in comparable ways serves public health interests at the same time it preserves bedrock free-exercise guarantees. (6th Cir. IPA Order 9 (citation omitted).) But the Sixth Circuit stopped short of issuing the IPA as
to in-person services, observing, “The balance is more difficult when it comes to in-person
services” (6th Cir. IPA Order 10), “[i]n view of the fast-moving pace of this litigation and in view
of the lack of additional input from the district court, whether of a fact-finding dimension or not.”
(Id.) But the Sixth Circuit “urge[d] 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”
(6th Cir. IPA Order 10), with the admonition, “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.” (Id.)
Having confirmed its jurisdiction over Plaintiffs’ appeal of this Court’s April 18, 2020
Order (ECF9, “TRO/OI Order”) (6th Cir. IPA Order 2), and having determined Plaintiffs’
likelihood of success on the merits, irreparable harm, and satisfaction of the balancing of harms
and public interest factors as to in-person worship services (6th Cir. IPA Order 9), the Sixth Circuit
relinquished jurisdiction to this Court only for “additional input” with respect to the balancing of

1

The May 20 date is significant because Governor Beshear has represented to the Court that

“beginning on May 20, 2020 faith-based organizations will be permitted to have in-person services

at a reduced capacity, with social distancing, and cleaning and hygiene measures implemented and

followed.” (ECF 21, Governor Beshear’s Not. Supp. Fact Devel., at 1.) Although Governor

Beshear has not offered any other details or defined “reduced capacity,” and Plaintiffs do not

concede that Governor Beshear’s May 20 plan will resolve any of Plaintiffs’ claims herein, the

Sixth Circuit’s reference to May 20 necessarily means that the court had the Governor’s current

prohibition of in-person services in mind in the court’s irreparable harm and subsequent IPA factor

determinations.

3

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the IPA factors for in-person services. (6th Cir. Oder 10.) And given the Sixth Circuit’s unequivocal conclusions that the Governor provided the 6th Circuit no good reasons or answers justifying the Commonwealth’s prohibitions on worship services that comply with the same distancing and hygiene guidelines as “life sustaining” businesses, this Court can only consider new reasons offered by the Governor. But, as shown below, Governor Beshear’s Renewed IPA Response simply repackages what the Governor already gave the Sixth Circuit and the Sixth Circuit found wanting. Thus, Governor Beshear still has offered no good reason or answer, and this Court should grant Plaintiffs’ Renewed IPA Motion.
The Governor’s Renewed IPA Response Substantively Contains Nothing New. Although the Sixth Circuit gave Governor Beshear an opportunity to present new reasons to this Court to justify the Commonwealth’s COVID-19 Orders, the Governor utterly failed to do so. Thus, this Court need go no further, and should grant Plaintiffs’ Renewed IPA Motion in aid of the appellate proceeding in the Sixth Circuit. A comparison of the Governor’s Renewed IPA Response filed in this Court, with the Governor’s 6th Circuit IPA Motion Response filed in the Sixth Circuit (and filed by Plaintiffs herein at ECF 25-2), shows that the Governor has offered no legitimate response to the Sixth Circuit’s conclusions that the Governor had no good reasons or answers to justify the Commonwealth’s Orders prohibiting worship services. The exhibits to the Governor’s Renewed IPA Response reveal what the Governor wants to present as new, but the new material does not carry the Governor’s burden. For example, the Affidavit of Dr. Steven J. Stack, M.D. (ECF 31-2) is identical to the Affidavit of Dr. Steven J. Stack, M.D. filed in the Sixth Circuit (ECF 25-2 PageID ## 366–371), save one new paragraph (¶ 46) presenting an irrelevant count of total COVID-19 cases in Hopkins County, purportedly connected to a church event on March 15–16 (¶¶ 41–45 (early in the COVID-19 era)), but without
4

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providing whether the church observed distancing and hygiene precautions such as those Plaintiffs are willing to observe.
As another example, the Declaration of Leiutenant [sic] Colonel Phillip Burnett, Jr. (ECF 31-4) of the Kentucky State Police appears new, but is in reality a repackaging of the same information in the Affidavit of Commissioner Rodney Brewer (ECF 25-2 PageID ## 373–74) of the Kentucky State Police. The Burnett Declaration, however, though not providing anything new, does refute a falsehood in the Governor’s Renewed IPA Response to this Court, where the Governor stated, “[n]either the Governor nor the Commonwealth have taken any enforcement action against Plaintiffs or any person who participated in Plaintiffs’ mass gathering on April 12, 2020.” (Renewed IPA Resp. 2.) The Burnett Declaration directly contradicts this statement, for it states that uniformed Kentucky State Police officers went to Maryville Baptist Church on Easter Sunday, recorded the license plates of vehicles in the parking lot, posted notices of criminal violation of the Commonwealth’s orders on the vehicles, and provided the license plate information to local health officials. (Burnett Decl. ¶¶ 6–10.) The enforcement actions of the Kentucky State Police against Plaintiffs, and the falsity of the Governor’s Renewed IPA Response, is further confirmed in the parties’ Stipulation of Facts Not in Dispute (ECF 29), which confirms the enforcement actions in the Burnett Declaration, and further provides the notices of criminal violation were placed on both occupied and unoccupied vehicles, resulting in letters and selfquarantine agreements being sent to Plaintiff Dr. Roberts and others on Kentucky Cabinet for Health and Family Services Department for Public Health letterhead. (Stip. ¶¶ 4–5.) Moreover, the Stipulation provides that the executive orders pursuant to which the Kentucky State Police acted remain in full force and effect, and Governor Beshear has not since Easter Sunday
5

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announced any voluntary change in his COVID-19 policies or enforcement regarding churches that would take effect prior to May 20, 2020. (Stip. ¶¶ 8–9.)
Still another example is the Declaration of Kimberlee C. Perry (ECF 31-5), Commissioner of the Department of Workplace Standards within the Kentucky Labor Cabinet, which is a repackaging of the same declaration filed in the Sixth Circuit (ECF 25-2 PageID ##375–77). The new Perry Declaration updates the numbers of Department investigations of businesses for not complying with the Commonwealth’s COVID-19 Orders (Perry Decl. ¶¶ 5–10) but does not provide any new categories of information. To be sure, the Perry Declaration bolsters the Sixth Circuit’s conclusion that there is no reason why churches should not be allowed to operate pursuant to the same CDC distancing guidelines as are available to “life-sustaining” businesses, with Commonwealth enforcement performed on a case-by-case basis. (6th Cir. IPA Order 8–9 (“If any group fails, as assuredly some groups have failed in the past, the Governor is free to enforce the social-distancing rules against them for that reason.”).) To this end, the Perry Declaration provides that her Department “has approved a total of 18 life-sustaining businesses or organizations to reopen after those entities provided evidence that they will properly implement CDC protocols regarding social distancing in the future.” (Perry Decl. ¶ 10.)
The only “new” exhibits included with the Governor’s Renewed IPA Response are trial court orders that do not in any way displace the binding 6th Circuit IPA Order, and are therefore inapposite to this case.2 (ECF 1, 6, 7.) To be sure, the Governor depends heavily on the Western

2

There is an additional new exhibit, an order of the Secretary of the Tourism, Arts and

Heritage Cabinet, ordering the closure of certain state parks. (ECF 31-3.) This exhibit not only

provides nothing material for this Court’s consideration, but also appears not to be the exhibit the

Governor intended to attach. (Renewed IPA Resp. 8 (referencing “Order closing the Kentucky

Performing Arts Center”).)

6

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District of Kentucky Memorandum and Order in Roberts v. Neace, No. 2:20cv054 (WOB-CJS) (W.D.K.Y. May 4, 2020), denying a preliminary injunction against enforcement of the Commonwealth’s Orders prohibiting in-person services at Maryville Baptist Church. (ECF 31-1; Renewed IPA Resp. 20–22, 25.) (The lead plaintiff in Roberts is not the same person as Plaintiffs Dr. Roberts in this case.) But this Court is bound by the 6th Circuit IPA Order, not the inconsistent Roberts order arising from different parties and different claims.
Given that the Governor has presented this Court with nothing new, the Governor has utterly failed to overcome his lack of good reasons and answers in the Sixth Circuit. Accordingly, the Court should grant Plaintiffs’ Renewed IPA Motion.
THE GOVERNOR’S REASONS REJECTED BY THE SIXTH CIRCUIT AND REPACKAGED FOR THIS COURT DO NOT JUSTIFY HIS BURDENING PLAINTIFFS’ RIGHTS OR DENIAL OF THE IPA. Because the Governor has not presented this Court with any substantive new facts or argument to overcome his lack of good reasons or answers in the Sixth Circuit, this Court should grant Plaintiffs’ Renewed IPA Motion. Some of the Governor’s failed arguments to the Sixth Circuit are worth noting here: • Plaintiffs Have Suffered Irreparable Harm. Disregarding the Sixth Circuit’s unequivocal determination that Plaintiffs are suffering irreparable harm (6th Cir. IPA Order 9), the Governor protests that Plaintiffs cannot show irreparable harm because the Kentucky State Police did not arrest anyone on Easter Sunday and have not returned to the Church. (Renewed IPA Resp. 26–27.) This argument has no merit because, as shown above and stipulated by the parties, the Kentucky State Police certainly did take enforcement action against Plaintiffs’ and their congregants’ free exercise rights on Easter Sunday, and the Governor’s enforcement policies have not changed. No more is required. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (“With regard to the factor of irreparable injury, for example, it is well-settled that ‘loss
7

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of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
• Governor Beshear Cannot Meet His Narrow Tailoring Burden. It is Governor Beshear’s burden to prove narrow tailoring. (6th Cir. IPA Motion, ECF 25-1, at 17.) Given all the examples of less restrictive COVID-19 state regulations demonstrated by Plaintiffs (6th Cir. IPA Motion, ECF 25-1, at 18–19), it is the Governor’s burden to prove Kentucky’s more restrictive prohibitions are necessary to address some problem peculiar to Kentucky, which the Governor has failed to do. Furthermore, the Governor’s attempt to use hearsay “media reports” and misleading, long-range and one-off photographs (Renewed IPA Resp. 10–13) to refute Plaintiffs’ verified allegations as to distancing and hygiene must fail.
CONCLUSION For all of the foregoing reasons, and the reasons in Plaintiffs’ Renewed IPA Motion, there is no need to for the Court to receive any further evidence or argument, and the Court should grant Plaintiffs’ Renewed IPA Motion forthwith, so that Plaintiffs may proceed with their Sunday, May 10 worship service under the Court’s protection, or seek further immediate relief in the Sixth Circuit.
8

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Respectfully submitted, s/ Roger K. Gannam Mathew D. Staver Horatio G. Mihet Roger K. Gannam Daniel J. Schmid LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 (407) 875-1776 court@LC.org hmihet@LC.org rgannam@LC.org dschmid@LC.org Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed via the Court’s ECF system which will effect service upon all counsel or parties of record. DATED this May 7, 2020.
s/ Roger K. Gannam Roger K. Gannam Attorney for Plaintiffs
9

 
 Case 3:20-cv-00278-DJH-RSE Document 38 Filed 05/12/20 Page 1 of 2 PageID #: 593

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH

GOVERNOR BESHEAR’S FIRST AMENDED MOTION TO DISMISS

Comes now, Defendant Governor Andy Beshear, in his official capacity, by and through

counsel, and moves this Court pursuant to Fed. R. Civ. P (“FRCP”) 12(b)(1) and (6) to dismiss

Plaintiffs’ claims. Due to a change in circumstances, Plaintiffs’ claims are now moot, depriving

this Court of subject matter jurisdiction. In addition, under the doctrine of sovereign immunity,

this Court lacks subject matter jurisdiction over Plaintiffs’ claim under the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”) and claims under state law. (Doc. 1.).

Alternatively, Plaintiffs fail to plead a claim under the RLUIPA. Finally, all of the claims should

be dismissed pursuant to FRCP 12(b)(6) for the reasons set forth in Governor Beshear’s

Response to the Renewed Emergency Motion for Injunction Pending Appeal (Doc. 31), which is

incorporated fully herein by reference. Those reasons have been applied by other District Courts

to deny similarly requested relief. See Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-832

JAM/CKD, --- F.Supp.3d ---, 2020 WL 2121111 (E.D. Cal. May 5, 2020); Legacy Church, Inc.

v. Kunkel, No. CIV 20-0327 JB/SCY, --- F.Supp.3d ---, 2020 WL 1905586 (D. N.M. April 17,

2020).

Case 3:20-cv-00278-DJH-RSE Document 38 Filed 05/12/20 Page 2 of 2 PageID #: 594
A Memorandum of Law and Proposed Order are attached.
Respectfully submitted,
/s/ S. Travis Mayo La Tasha Buckner General Counsel S. Travis Mayo Chief Deputy General Counsel Taylor Payne Deputy General Counsel Laura Tipton Deputy General Counsel Marc Farris Deputy General Counsel Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 (502) 564-2611 LaTasha.Buckner@ky.gov travis.mayo@ky.gov taylor.payne@ky.gov laurac.tipton@ky.gov marc.farris@ky.gov
Counsel for Governor Andy Beshear
CERTIFICATE OF SERVICE
I hereby certify that on May 12, 2020, I electronically filed the foregoing Amended Motion to Dismiss, Memorandum of Law, and Proposed Order via the Court’s CM/ECF system, causing all counsel of record to be served.
/s/ S. Travis Mayo S. Travis Mayo

Case 3:20-cv-00278-DJH-RSE Document 38-1 Filed 05/12/20 Page 1 of 13 PageID #: 595

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH

GOVERNOR BESHEAR’S MEMORANDUM OF LAW IN SUPPORT OF FIRST AMENDED MOTION TO DISMISS

Pursuant to Fed. R. Civ. P (“FRCP”) 12(b)(1) and (6), this Court should dismiss

Plaintiffs’ claims. Due to a change in circumstances, Plaintiffs’ claims are now moot, depriving

this Court of subject matter jurisdiction. In addition, under the doctrine of sovereign immunity,

this Court lacks subject matter jurisdiction over Plaintiffs’ claim under the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”) and claims under state law. (Doc. 1.).

Alternatively, Plaintiffs fail to plead a claim under the RLUIPA. Finally, all of the claims should

be dismissed pursuant to FRCP 12(b)(6) for the reasons set forth in Governor Beshear’s

Response to the Renewed Emergency Motion for Injunction Pending Appeal (Doc. 31), which is

incorporated fully herein by reference. Those reasons have been applied by other District Courts

to deny similarly requested relief. See Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-832

JAM/CKD, --- F.Supp.3d ---, 2020 WL 2121111 (E.D. Cal. May 5, 2020); Legacy Church, Inc.

v. Kunkel, No. CIV 20-0327 JB/SCY, --- F.Supp.3d ---, 2020 WL 1905586 (D. N.M. April 17,

2020).

Case 3:20-cv-00278-DJH-RSE Document 38-1 Filed 05/12/20 Page 2 of 13 PageID #: 596
BACKGROUND I. Procedural Background
This action stems from a dispute over the application of a March 19, 2020 Executive Order issued by the then-Acting and now current Secretary of the Kentucky Cabinet for Health and Family Services, acting as the Governor’s designee. Aimed at addressing the COVID-19 pandemic and declared state of emergency in the Commonwealth of Kentucky, the Order prohibits “all mass gatherings[,]” defined as “any event or convening that brings together groups of individuals, including, but not limited to community, civic, public, leisure, faith-based, or sporting events, parades; concerts; festivals; conventions; fundraisers; and similar activities.” (Doc. 1-5, PageID # 66.)
On April 17, 2020, Plaintiffs filed a Verified Complaint for Declaratory Relief, Temporary Restraining Order, Preliminary and Permanent Injunctive Relief and Damages against the Governor in his official capacity challenging the mass gatherings order. (Doc. 1.) The Complaint sets forth seven federal claims: four claims under the First Amendment, a claim under Article IV of the United States Constitution, an equal protection claim, and an alleged violation of RLUIPA. (Doc. 1.) Plaintiffs also allege five state law claims, including four claims arising under the Kentucky Constitution and a claim that the Order violates the Kentucky Religious Freedom Restoration Act. (Doc. 1.)
Also on April 17, Plaintiffs filed an Emergency Motion for Temporary Restraining Order. (Doc. 3.) This Court denied the motion. (Doc. 9.) Plaintiffs appealed the denial of the motion to the Sixth Circuit Court of Appeals. (Doc. 16.) That appeal is pending.
2

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In the meantime, Plaintiffs filed Emergency Motions for Preliminary Injunction Pending Appeal in both this Court and the Sixth Circuit. (Doc. 17); Maryville Baptist Church, Inc. v. Beshear, No. 20-5427 (6th Cir. May 2, 2020), ECF No. 4-1. In a per curiam order, the Sixth Circuit granted the motion in part to enjoin the mass gatherings order to the extent it applied to or was enforced against drive-in faith-based services. (Doc. 23.) The Sixth Circuit’s Order did not enjoin the mass gatherings order as it applied to in-person faith-based services. (Id.) Of note, in closing, the Sixth Circuit requested that this Court “prioritize resolution of the claims[.]” (Id. at 295.) To that end, the Governor filed a Motion to Dismiss (Doc. 33.)
After filing that Motion to Dismiss, an Eastern District of Kentucky District Court issued a statewide temporary restraining order preventing the Governor or any Commonwealth official from enforcing the prohibition on mass gatherings as to in-person services of faith-based organizations. See Opinion and Order (Doc. 24), Tabernacle Baptist Church v. Beshear, No. 3:20-cv-00033-GFVT (E.D.Ky. May 8, 2020). This Court also preliminarily enjoined enforcement of the prohibition on mass gatherings “as to in-person services at Maryville Baptist Church so long as the church, its ministers, and its congregants adhere to public health requirements set by state officials.” (Doc. 35, PageID #: 580.)
In response to these orders, the Secretary of the Cabinet for Health and Family Services amended the March 19, 2020 order prohibiting mass gatherings. On May 9, 2020, the Secretary issued an Order amending the prohibition on mass gatherings. (Doc. 36-1.) Pursuant to that Order, the prohibition on mass gatherings no longer applies to in-person services of faith-based organizations. (Id.) The Order requires faith-based organizations that have in-person services to implement and follow the Guidelines for Places of Worship that the Order attaches and incorporates by reference. (Id.). The Guidelines provide that places of worship will be expected
3

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to meet the Healthy at Work Minimum Requirements for all entities in Kentucky and, in addition, should follow the guidelines for places of worship in order to reopen and remain open. (Id.) The Guidelines are mostly permissive, but, consistent with the Court’s May 8, 2020 Order, require that places of worship having in-person services adhere to social distancing and hygiene guidelines of the CDC and public health officials. (Id.) II. Factual Background
The Governor adopts by incorporation and reference the Response in Opposition to Plaintiffs’ Renewed Emergency Motion for Injunction Pending Appeal as to the necessary factual background regarding the spread of COVID-19 and the Commonwealth’s response. (See Doc. 31. PageID #: 406 – 421.)
Since those filings, Maryville Baptist Church held in-person services on May 10, 2020, but did not comply with the requirements set forth in this Court’s preliminary injunction Order. As shown by the video of the in-person service, the service began with members of the choir standing well within six (6) feet of one another, not adhering to social distancing guidelines.1 Later during the in-person service, members of the congregation, including some members of the vulnerable population at higher risk during the COVID-19 pandemic, stood with the pastor, side by side, not adhering to social distancing, without any face coverings, and at times touched or hugged one another. (Id. at 25:30-37:02.)
Defendants now amend their prior Motion to Dismiss (Doc. 33) to include these procedural and factual developments.
1 Video of Maryville Baptist Church Service, May 10, 2020, at 0:01-20:36, available at https://www.facebook.com/maryville.baptist/videos/3165718850157409/ (last visited May 11, 2020).
4

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ARGUMENT In light of recent factual developments, Plaintiffs’ claims are now moot. Furthermore, the Court should deny Plaintiffs’ requested relief due to their unclean hands. In addition, this Court lacks jurisdiction over Plaintiffs’ state law claims and RLUIPA claim; sovereign immunity applies to these claims. Finally, Plaintiffs fail to plead a claim under RLUIPA and with respect to their Complaint as a whole. The Governor therefore requests that this Court dismiss Plaintiffs’ Complaint. I. Legal Standard FRCP 12(b)(1) requires a court to dismiss a complaint when it lacks subject matter jurisdiction over the case. A federal court lacks subject matter jurisdiction over moot claims. Kentucky v. United States ex rel. Hagel, 759 F.3d 588, 595 (6th Cir. 2014). Similarly, a federal court lacks subject matter jurisdiction over claims against a State rightfully asserting its sovereign immunity. Alden v. Maine, 527 U.S. 706 (1999). Alternatively, FRCP 12(b)(6) permits a district court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” For purposes of ruling on a Motion to Dismiss pursuant to FRCP 12(b)(6), the court construes the complaint in a light most favorable to the plaintiff and accepts as true all well-pled allegations in the complaint. Robert N. Clemens Trust, 485 F.3d at 845 (citation omitted). The “factual allegations must be enough to raise a right to relief above a speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (citations omitted). However, a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944, 92 L.Ed.2d 209 (1986) (citation omitted).
5

Case 3:20-cv-00278-DJH-RSE Document 38-1 Filed 05/12/20 Page 6 of 13 PageID #: 600
II. The Governor’s Actions Amending The Prohibition On Mass Gatherings Renders Plaintiffs’ Claims Moot. This Court’s jurisdiction is limited to “cases and controversies.” U.S. CONST. art. III, § 2.
The issue of mootness addresses whether an actual, live controversy exists during the litigation or whether an intervening event will render the Court’s final adjudication merely advisory. Calderon v. Moore, 518 U.S. 149, 150 (1996). In other words, a court that at one point had jurisdiction may lose that jurisdiction if the case becomes moot because an intervening event has “completely and irrevocably eradicated the effects of the alleged violation.” Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (citations omitted).
The Sixth Circuit treats “cessation of the allegedly illegal conduct by government officials ... with more solicitude ... than similar action by private parties.” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012). Therefore, government “self-correction provides a secure foundation for a dismissal based on mootness so long as it appears genuine.” Id. “Legislative repeal or amendment of a challenged statute while a case is pending on appeal usually eliminates this requisite case-or-controversy because a statute must be analyzed by the ... court in its present form.” Id.
This case became moot on May 9, 2020, when Governor Beshear amended the March 19, 2020 Executive Order prohibiting mass gatherings. That order – the only order at issue in this matter – no longer applies to in-person services of faith-based organizations. The Sixth Circuit recognized the issue of mootness in its per curiam order, stating, “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.” Maryville Baptist Church v. Beshear, --- F.3d --- (6th Cir. 2020). This remains true even though the Governor initiated the May 20 reopening plan on May 9. In other words, the case that would have been moot on May 20 is now moot as of May 9.
6

Case 3:20-cv-00278-DJH-RSE Document 38-1 Filed 05/12/20 Page 7 of 13 PageID #: 601
Moreover, any opinion from this Court on the merits of Plaintiffs’ claims would amount to an advisory opinion, which Article III of the Constitution prohibits. Fialka –Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 715 (6th Cir. 2011). To address the merits, the Court would have to operate under the hypothetical that the mass gatherings order still applied to faithbased organizations or that the Governor will enact these same measures again. Employment of such hypotheticals is the hallmark of a prohibited advisory opinion. Chafin v. Chafin, 568 U.S. 165, 172 (2013).
This Court should dismiss Plaintiffs’ Complaint as moot. III. The Court Should Deny Further Injunctive Relief Due To Plaintiffs’ Unclean
Hands. The Court should also dismiss these Plaintiffs’ claims for equitable relief because Plaintiffs have demonstrated unclean hands by conducting in-person services without respecting CDC guidelines for social distancing, as required by this Court’s May 8, 2020 Order. In fact, Plaintiffs’ entire request for relief was predicated on their assertion they would comply with the measures applicable to life-sustaining businesses, including social distancing and hygiene guidelines. (See generally Complaint, Doc. 1.) The unclean hands doctrine “closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the opposing party.” Cleveland Newspaper Guild, Local 1 v. Plain Dealer Pub. Co., 839 F.2d 1147, 1155 (6th Cir. 1988) (quotation marks and citation omitted). The unclean hands doctrine has been invoked to bar relief where, as here, Plaintiffs have engaged in action in violation of the law while the case is pending. As the Seventh Circuit has explained, “[p]arties who believe that a statute or ordinance is unconstitutional must wait for that to happen before treating the challenged law as nonexistent. They do not have free rein to
7

Case 3:20-cv-00278-DJH-RSE Document 38-1 Filed 05/12/20 Page 8 of 13 PageID #: 602
invoke a court’s jurisdiction over a challenge to an ordinance, but to then act like the law does not exist before the court reaches the merits of its challenge.” GEFT Outdoors, LLC v. City of Westfield, 922 F.3d 357, 370 (7th Cir. 2019).
In this case, Plaintiffs secured the preliminary relief they sought – a limitation on the mass gatherings order’s application to in-person services that comply with social distancing requirements. Among those requirements is that family groups maintain six feet of separation. (Doc. 35, PageID #: 580.) The Eastern District of Kentucky and Sixth Circuit reached similar results.
Yet Plaintiffs promptly held an in-person service during which individuals – including individuals who are plainly among the high-risk groups for COVID-19 – were well within six feet of each other and even touched each other, as the video recording indisputably shows.2 Thus, Plaintiffs chose to flagrantly violate that part of the mass gatherings order that every court has upheld.
Plaintiffs’ wrongful conduct bars further injunctive relief, especially given that Defendants have already revised the mass gatherings order in conformity with this Court’s decision. In GEFT Outdoors, the Seventh Circuit affirmed a District Court’s denial of injunctive relief against an ordinance that the plaintiff alleged violated the First Amendment, where the plaintiff chose to violate the ordinance while the motions were pending. Id. As that court explained, “[t]he district court, faced with a situation where GEFT had invoked the court’s power over its dispute with Westfield, but then unilaterally acted in violation of a still-valid ordinance, did not abuse its discretion in determining that these actions supported denying GEFT’s motion for equitable relief.” Id.
2 Video of Maryville Baptist Church Service, May 10, 2020, at 0:01-20:36, available at https://www.facebook.com/maryville.baptist/videos/3165718850157409/ (last visited May 11, 2020).
8

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Indeed, Plaintiffs’ conduct is more unconscionable than the conduct that barred injunctive relief in GEFT Outdoors, because Plaintiffs here did not simply act before the Court could rule – they instead violated the plain language of this Court’s order, which upheld the social distancing requirements.
In light of Plaintiffs’ unlawful conduct and Defendants’ good-faith effort to comply with the orders of this Court, the Eastern District of Kentucky, and the Sixth Circuit, the Court should dismiss the Complaint. There is simply no risk that Plaintiffs’ constitutional rights will be violated, assuming arguendo that this Court and the Sixth Circuit have correctly articulated those rights, and Plaintiffs’ willful failure to comply with the orders of this Court and of the Eastern District of Kentucky bars any relief. IV. The Eleventh Amendment Prohibits Plaintiffs’ State Claims And RLUIPA Claims
Against The Governor. The Eleventh Amendment to the United States Constitution bars suits against the state. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984). State officials sued in their official capacities are “arms of the state” entitled to assert the State’s sovereign immunity on their own behalf. See Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005). The Supreme Court acknowledges three exceptions: suits against state officials for injunctive relief challenging the constitutionality of the official’s action, see Ex parte Young, 209 U.S. 123 (1908), suits to which states consent, see Pennhurst, 465 at 98, and suits invoking Congressional statutes pursuant to the Fourteenth Amendment, see Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001). These exceptions are not applicable to Plaintiffs’ state law claims and RLUIPA claim asserted in the Complaint. As to the state law claims, “because the purposes of Ex parte Young do not apply to a lawsuit designed to bring a State into compliance with state law, the States' constitutional immunity from suit prohibits all state-law claims filed against a State in federal court, whether
9

Case 3:20-cv-00278-DJH-RSE Document 38-1 Filed 05/12/20 Page 10 of 13 PageID #: 604
those claims are monetary or injunctive in nature.” Ernst v. Rising, 427 F.3d 351, 368 (6th Cir. 2005) (citing Pennhurst, 465 U.S. at 106). Nor has the Commonwealth consented to suit in federal court on the state law claims. The Kentucky Constitution provides that the Commonwealth cannot waive immunity except by express legislative action. KY. CONST. § 231. See also Edelman v. Jordan, 415 U.S. 651, 673 (1977) (a state must specify “by the most express language” its intent to waive Eleventh Amendment immunity and subject itself to suit in federal court.) The Commonwealth has not done so.
As to the RLUIPA claim, that Act does not expressly abrogate a state’s sovereign immunity. See Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1025-26 (D.C. Cir. 2006).
Plaintiffs’ claims also cannot survive as requests for declaratory judgment. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (holding that the Declaratory Judgment Act does not extend the jurisdiction of federal courts.)
Accordingly, sovereign immunity bars Plaintiffs’ claims against the Governor in his official capacity for damages, prospective injunctive and declaratory relief under state law and RLUIPA. V. Plaintiffs Fail To Plead A Claim Under The Religious Land Use And
Institutionalized Persons Act. The Court should dismiss Plaintiffs’ RLUIPA claim for the additional reason that they have not stated a claim under that statute. Plaintiffs assert a violation of 42 U.S.C. § 2000cc(a)(1) of RLUIPA. That section states that “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.” 42 U.S.C. § 2000cc(a)(1). It applies in any situation in which:
10

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(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability; (B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or (C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved. 42 U.S.C. § 2000cc(a)(2). RLUIPA defines “land use regulation” as “a zoning or landmarking law, or the application of such a law.” 42 U.S.C. § 2000cc-5(5). The mass gatherings order regulates conduct, not land use. Plaintiffs fail to allege the Governor imposed or implemented a “land use regulation.” (See Doc. 1, PageID # 44-46.) Moreover, they disregard the application of 42 U.S.C. § 2000cc(a)(2) to their claim. Plaintiffs do not allege the burden was imposed “in a program or activity that receives Federal financial assistance[;] . . . [that it] affect[s] commerce with foreign nations, among the several States, or with Indian tribes;” or that it was imposed in a manner that allows the government to “make, individualized assessments of the proposed uses for the property involved.” Neither do Plaintiffs cite to any decision upholding a challenge under RLUIPA to a conduct-regulating statute. Interpreting RLUIPA to regulate conduct in such a way would raise constitutional questions about RLUIPA’s congruence and proportionality. See Cross Country Christian Ctr. v. Newsom, -- F.3d --, 2020 WL 2121111, at *7 (E.D. Calif. Mar. 5, 2020) ((citing Guru Nanak Sikh Soc. Of Yuba City v. County of Sutter, 456 F.3d 978, 986 (9th Cir. 2006) (citing Cutter v. Wilkinson, 544 U.S. 709, 1161 L.Ed.2d 1020 (2005) (“To avoid RFRA’s fate, Congress wrote that RLUIPA would apply only to regulations regarding land use and prison conditions.”))
11

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Under the canon of constitutional avoidance, RLUIPA does not, by its plain terms, apply to the mass gatherings order.
Plaintiffs fail to plead this claim with the particularity required to survive a motion to dismiss. VI. This Court Should Dismiss The Complaint Entirely For Plaintiffs’ Failure to State a
Claim. Plaintiffs cannot prevail on any of their claims. The Governor’s order prohibiting mass gatherings was a lawful response to a worldwide public health emergency. The Governor’s Response to Plaintiff’s Renewed Emergency Motion for Injunction Pending Appeal addresses these points, which is incorporated in this Motion. These points have been adopted by other District Courts to uphold similar orders in other states. See Cross Culture Christian Ctr., No. 2:20-cv-832, --- F.Supp.3d ---, 2020 WL 2121111; Legacy Church, Inc., No. CIV 20-0327 JB/SCY, --- F.Supp.3d ---, 2020 WL 1905586.
CONCLUSION For the foregoing reasons, Governor Beshear respectfully asks the Court to dismiss Plaintiffs’ Complaint as moot. Alternatively, the Governor respectfully requests that this Court apply the unclean hands doctrine to deny Plaintiffs’ the relief sought. The Governor further requests that this Court dismiss Plaintiffs’ state law claims and the claim asserted under the Religious Land Use and Institutionalized Persons Act pursuant to the doctrine of sovereign immunity. Additionally, Governor Beshear respectfully asks this Court to dismiss the Complaint in its entirety for Plaintiff’s failure to state a claim as set forth herein and in Governor Beshear’s Response to Plaintiffs’ Renewed Emergency Motion for Injunction Pending Appeal.
12

Case 3:20-cv-00278-DJH-RSE Document 38-1 Filed 05/12/20 Page 13 of 13 PageID #: 607
Respectfully submitted, /s/ S. Travis Mayo La Tasha Buckner General Counsel S. Travis Mayo Chief Deputy General Counsel Taylor Payne Deputy General Counsel Laura Tipton Deputy General Counsel Marc Farris Deputy General Counsel Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 (502) 564-2611 LaTasha.Buckner@ky.gov travis.mayo@ky.gov taylor.payne@ky.gov laurac.tipton@ky.gov marc.farris@ky.gov Counsel for Governor Andy Beshear
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Case 3:20-cv-00278-DJH-RSE Document 38-2 Filed 05/12/20 Page 1 of 1 PageID #: 608

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH

ORDER

This matter having come before the Court on the Governor’s Amended Motion to

Dismiss, and the Court having reviewed the Amended Motion and being sufficiently advised, it

is hereby ORDERED that the Amended Motion to Dismiss is GRANTED.

So Ordered this ___ day of ________________, 2020.

__________________________________ JUDGE DAVID J. HALE United States District Court for the Western District of Kentucky

 
 Case 3:20-cv-00278-DJH-RSE Document 33 Filed 05/08/20 Page 1 of 2 PageID #: 497

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH

GOVERNOR BESHEAR’S MOTION TO DISMISS

Comes now, Defendant Governor Andy Beshear, in his official capacity, by and through

counsel, and moves this Court pursuant to Fed. R. Civ. P (“FRCP”) 12(b)(1) and (6) to dismiss

Plaintiffs’ claims. In particular, this Court lacks subject matter jurisdiction over Plaintiffs’ claim

under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and claims under

state law. (Doc. 1.) Additionally, Plaintiffs fail to plead claims that warrant relief from this Court

for the reasons set forth in this Motion and memorandum of law in support, as well as Governor

Beshear’s Response to Plaintiff’s Renewed Emergency Motion for Injunction Pending Appeal

(Doc. 31), which is incorporated fully herein by reference.

A Memorandum of Law and Proposed Order are attached.

Respectfully submitted,
/s/ Taylor Payne La Tasha Buckner General Counsel S. Travis Mayo Chief Deputy General Counsel Taylor Payne Deputy General Counsel Laura Tipton Deputy General Counsel

Case 3:20-cv-00278-DJH-RSE Document 33 Filed 05/08/20 Page 2 of 2 PageID #: 498
Marc Farris Deputy General Counsel Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 (502) 564-2611 LaTasha.Buckner@ky.gov travis.mayo@ky.gov taylor.payne@ky.gov laurac.tipton@ky.gov marc.farris@ky.gov
Counsel for Governor Andy Beshear
CERTIFICATE OF SERVICE
I hereby certify that on May 8, 2020, I electronically filed the foregoing Motion to Dismiss, Memorandum of Law, and Proposed Order via the Court’s CM/ECF system, causing all counsel of record to be served.
/s/ Taylor Payne Taylor Payne

Case 3:20-cv-00278-DJH-RSE Document 33-1 Filed 05/08/20 Page 1 of 7 PageID #: 499

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH

GOVERNOR BESHEAR’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

Pursuant to Fed. R. Civ. P (“FRCP”) 12(b)(1) and (6), this Court should dismiss

Plaintiffs’ claims. This Court lacks subject matter jurisdiction over Plaintiffs’ claim under the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and claims under state law.

(Doc. 1.) Additionally, Plaintiffs fail to plead the elements of a claim under the RLUIPA.

Finally, all of the claims should be dismissed pursuant to FRCP 12(b)(6) for the reasons set forth

in Governor Beshear’s Response to the Renewed Emergency Motion for Injunction Pending

Appeal (Doc. 31), which is incorporated fully herein by reference. Those reasons have been

applied by other District Courts to deny similarly requested relief. See Cross Culture Christian

Ctr. v. Newsom, No. 2:20-cv-832 JAM/CKD, --- F.Supp.3d ---, 2020 WL 2121111 (E.D. Cal.

May 5, 2020) (attached herein as Exhibit A); Legacy Church, Inc. v. Kunkel, No. CIV 20-0327

JB/SCY, --- F.Supp.3d ---, 2020 WL 1905586 (D. N.M. April 17, 2020) (attached herein as

Exhibit B).

Case 3:20-cv-00278-DJH-RSE Document 33-1 Filed 05/08/20 Page 2 of 7 PageID #: 500
BACKGROUND I. Procedural Background
This action stems from a dispute over the application of a March 19, 2020 Executive Order issued by the then-Acting and now current Secretary of the Kentucky Cabinet for Health and Family Services, acting as the Governor’s designee. Aimed at addressing the COVID-19 pandemic and declared state of emergency in the Commonwealth of Kentucky, the Order prohibits “all mass gatherings[,]” defined as “any event or convening that brings together groups of individuals, including, but not limited to community, civic, public, leisure, faith-based, or sporting events, parades; concerts; festivals; conventions; fundraisers; and similar activities.” (Doc. 1-5, PageID # 66.)
On April 17, 2020, Plaintiffs filed a Verified Complaint for Declaratory Relief, Temporary Restraining Order, Preliminary and Permanent Injunctive Relief and Damages against the Governor in his official capacity challenging the mass gatherings Order. (Doc. 1.) The Complaint sets forth seven federal claims: four claims under the First Amendment, a claim under Article IV of the United States Constitution, an equal protection claim, and an alleged violation of RLUIPA. (Doc. 1.) Plaintiffs also allege five state law claims, including four claims arising under the Kentucky Constitution and a claim that the Order violates the Kentucky Religious Freedom Restoration Act. (Doc. 1.)
Also on April 17, Plaintiffs filed an Emergency Motion for Temporary Restraining Order. (Doc. 3.) This Court denied the motion. (Doc. 9.) Plaintiffs appealed the denial of the motion to the Sixth Circuit Court of Appeals. (Doc. 16.) That appeal is pending.
In the meantime, Plaintiffs filed Emergency Motions for Preliminary Injunction Pending Appeal in both this Court and the Sixth Circuit. (Doc. 17); Maryville Baptist
2

Case 3:20-cv-00278-DJH-RSE Document 33-1 Filed 05/08/20 Page 3 of 7 PageID #: 501
Church, Inc. v. Beshear, No. 20-5427 (6th Cir. May 2, 2020), ECF No. 4-1. In a per curiam order, the Sixth Circuit granted the motion in part to enjoin the mass gathering Order to the extent it applied to or was enforced against drive-in faith-based services. (Doc. 23.) The Sixth Circuit’s Order did not enjoin the mass gathering Order as it applied to in-person faith-based services. (Id.) Of note, in closing, the Sixth Circuit requested that this Court “prioritize resolution of the claims[.]” (Id. at 295.)
To that end, the Governor now files this Motion to Dismiss. II. Factual Background
The Governor adopts by incorporation and reference the Response in Opposition to Plaintiffs’ Renewed Emergency Motion for Injunction Pending Appeal as to the necessary factual background regarding the spread of COVID-19 and the Commonwealth’s response. (See Doc. 31. PageID #: 406 – 421.)
ARGUMENT This court lacks jurisdiction over Plaintiffs’ state law claims and RLUIPA claim. Sovereign immunity applies to these claims. Additionally, Plaintiffs fail to plead a claim under RLUIPA and with respect to their Complaint as a whole. The Governor therefore requests that this Court dismiss Plaintiffs’ Complaint. I. Legal Standard FRCP 12(b)(1) requires a court to dismiss a complaint when it lacks subject matter jurisdiction over the case. A federal court lacks subject matter jurisdiction over claims against a State rightfully asserting its sovereign immunity. Alden v. Maine, 527 U.S. 706 (1999). Alternatively, FRCP 12(b)(6) permits a district court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” For purposes of ruling on a Motion to Dismiss
3

Case 3:20-cv-00278-DJH-RSE Document 33-1 Filed 05/08/20 Page 4 of 7 PageID #: 502
pursuant to FRCP 12(b)(6), the court construes the complaint in a light most favorable to the plaintiff and accepts as true all well-pled allegations in the complaint. Robert N. Clemens Trust, 485 F.3d at 845 (citation omitted). The “factual allegations must be enough to raise a right to relief above a speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (citations omitted). However, a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944, 92 L.Ed.2d 209 (1986) (citation omitted). II. The Eleventh Amendment Prohibits Plaintiffs’ State Claims And RLUIPA Claims
Against The Governor. The Eleventh Amendment to the United States Constitution bars suits against the state. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984). State officials sued in their official capacities are “arms of the state” entitled to assert the State’s sovereign immunity on their own behalf. See Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005). The Supreme Court acknowledges three exceptions: suits against state officials for injunctive relief challenging the constitutionality of the official’s action, see Ex parte Young, 209 U.S. 123 (1908), suits to which states consent, see Pennhurst, 465 at 98, and suits invoking Congressional statutes pursuant to the Fourteenth Amendment, see Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001). These exceptions are not applicable to Plaintiffs’ state law claims and RLUIPA claim asserted in the Complaint. As to the state law claims, “because the purposes of Ex parte Young do not apply to a lawsuit designed to bring a State into compliance with state law, the States' constitutional immunity from suit prohibits all state-law claims filed against a State in federal court, whether those claims are monetary or injunctive in nature.” Ernst v. Rising, 427 F.3d 351, 368 (6th Cir. 2005) (citing Pennhurst, 465 U.S. at 106). Nor has the Commonwealth consented to suit in
4

Case 3:20-cv-00278-DJH-RSE Document 33-1 Filed 05/08/20 Page 5 of 7 PageID #: 503
federal court on the state law claims. The Kentucky Constitution provides that the Commonwealth cannot waive immunity except by express legislative action. KY. CONST. § 231. See also Edelman v. Jordan, 415 U.S. 651, 673 (1977) (a state must specify “by the most express language” its intent to waive Eleventh Amendment immunity and subject itself to suit in federal court.) The Commonwealth has not done so.
As to the RLUIPA claim, that Act does not expressly abrogate a state’s sovereign immunity. See Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1025-26 (D.C. Cir. 2006).
Plaintiffs’ claims also cannot survive as requests for declaratory judgment. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (holding that the Declaratory Judgment Act does not extend the jurisdiction of federal courts.)
Accordingly, sovereign immunity bars Plaintiffs’ claims against the Governor in his official capacity for damages, prospective injunctive and declaratory relief under state law and RLUIPA. III. Plaintiffs Fail To Plead A Claim Under The Religious Land Use And
Institutionalized Persons Act. The Court should dismiss Plaintiffs’ RLUIPA claim for the additional reason that they have not stated a claim under that statute. Plaintiffs assert a violation of 42 U.S.C. § 2000cc(a)(1) of RLUIPA. That section states that “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.” 42 U.S.C. § 2000cc(a)(1). It applies in any situation in which: (A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
5

Case 3:20-cv-00278-DJH-RSE Document 33-1 Filed 05/08/20 Page 6 of 7 PageID #: 504
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or (C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved. 42 U.S.C. § 2000cc(a)(2). RLUIPA defines “land use regulation” as “a zoning or landmarking law, or the application of such a law.” 42 U.S.C. § 2000cc-5(5). The mass gatherings order regulates conduct, not land use. Plaintiffs fail to allege the Governor imposed or implemented a “land use regulation.” (See Doc. 1, PageID # 44-46.) Moreover, they disregard the application of 42 U.S.C. § 2000cc(a)(2) to their claim. Plaintiffs do not allege the burden was imposed “in a program or activity that receives Federal financial assistance[;] . . . [that it] affect[s] commerce with foreign nations, among the several States, or with Indian tribes;” or that it was imposed in a manner that allows the government to “make, individualized assessments of the proposed uses for the property involved.” Neither do Plaintiffs cite to any decision upholding a challenge under RLUIPA to a conduct-regulating statute. Interpreting RLUIPA to regulate conduct in such a way would raise constitutional questions about RLUIPA’s congruence and proportionality. See Cross Country Christian Ctr. v. Newsom, -- F.3d --, 2020 WL 2121111, at *7 (E.D. Calif. Mar. 5, 2020) ((citing Guru Nanak Sikh Soc. Of Yuba City v. County of Sutter, 456 F.3d 978, 986 (9th Cir. 2006) (citing Cutter v. Wilkinson, 544 U.S. 709, 1161 L.Ed.2d 1020 (2005) (“To avoid RFRA’s fate, Congress wrote that RLUIPA would apply only to regulations regarding land use and prison conditions.”)) Under the canon of constitutional avoidance, RLUIPA does not, by its plain terms, apply to the mass gatherings order.
6

Case 3:20-cv-00278-DJH-RSE Document 33-1 Filed 05/08/20 Page 7 of 7 PageID #: 505
Plaintiffs fail to plead this claim with the particularity required to survive a motion to dismiss. IV. This Court Should Dismiss The Complaint Entirely For Plaintiffs’ Failure to State a
Claim. Plaintiffs cannot prevail on any of their claims. The Governor’s order prohibiting mass gatherings was a lawful response to a worldwide public health emergency. The Governor’s Response to Plaintiff’s Renewed Emergency Motion for Injunction Pending Appeal addresses these points, which is incorporated in this Motion. These points have been adopted by other District Courts to uphold similar orders in other states. See Cross Culture Christian Ctr., No. 2:20-cv-832, --- F.Supp.3d ---, 2020 WL 2121111 (Exhibit A); Legacy Church, Inc., No. CIV 20-0327 JB/SCY, --- F.Supp.3d ---, 2020 WL 1905586 (Exhibit B).
CONCLUSION For the foregoing reasons, Governor Beshear respectfully asks the Court to dismiss Plaintiffs’ state law claims and the claim asserted under the Religious Land Use and Institutionalized Persons Act pursuant to the doctrine of sovereign immunity. Additionally, Governor Beshear respectfully asks this Court to dismiss the Complaint entirely for Plaintiff’s failure to state a claim as set forth herein and in Governor Beshear’s Response to Plaintiff’s Renewed Emergency Motion for Injunction Pending Appeal.
7

Case 3:20-cv-00278-DJH-RSE Document 33-2 Filed 05/08/20 Page 1 of 12 PageID #: 506
Cross Culture Christian Center v. Newsom, --- F.Supp.3d ---- (2020) 2020 WL 2121111

2020 WL 2121111 Only the Westlaw citation is currently available.
United States District Court, E.D. California.
CROSS CULTURE CHRISTIAN CENTER, a California Non-profit Corporation; Pastor Jonathan Duncan, an individual, Plaintiffs,
v. Gavin NEWSOM, in his official capacity as Governor of California; Xavier Becerra, in his official capacity
as the Attorney General of California; Sonia Angell, in her capacity as California Public Health
Officer; Maggie Park, in her official capacity as Public Health Officer, San Joaquin County; Marcia
Cunningham, in her official capacity as Director of Emergency Services, San Joaquin County; City of Lodi; Tod Patterson, in his official capacity as
Chief of Police of Lodi, California, Defendants.

[4] plaintiffs were not likely to succeed on merits of claim that orders violated Free Exercise Clause under rational basis review; and
[5] orders were not “land use regulation” subject to Religious Land Use and Institutionalized Persons Act (RLUIPA).
Application denied.
West Headnotes (33)
[1] Evidence A court may take judicial notice of court filings and other matters of public record including government documents available from reliable sources on the internet. Fed. R. Evid. 201(b).

No. 2:20-cv-00832-JAM-CKD |
Signed 05/05/2020
Synopsis Background: Church and its pastor filed action against city, police chief, and state and county officials, alleging that stayat-home orders enacted by California Governor and county during COVID-19 pandemic impermissibly infringed upon their constitutional and statutory rights to speak, assemble, and practice religion. Plaintiffs filed ex parte application for temporary restraining order (TRO), which defendants opposed.

[2] Evidence
District court would judicially notice contents, but not truth of contents, of various filings, rulings, and hearing transcripts related to motions for temporary restraining orders (TROs) in other cases, and of various documents issued by California and federal governments, including executive order issued by Governor of California, in considering TRO application by church and pastor seeking order enjoining enforcement of state and county stay-at-home orders issued during COVID-19 pandemic. Fed. R. Evid. 201(b).

Holdings: The District Court, John A. Mendez, J., held that:
[1] plaintiffs were not likely to succeed on merits of claim that orders were impermissible exercises of emergency police powers;
[2] orders were neutral on their face and in their application, as required for orders to be subject to rational basis review in determining whether they violated Free Exercise Clause;

[3] Injunction
A party seeking a temporary restraining order (TRO) must establish (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm absent preliminary relief; (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest.

[3] orders were generally applicable, as required for orders to be subject to rational basis review in determining whether they violated Free Exercise Clause;

[4] Injunction

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

1

Case 3:20-cv-00278-DJH-RSE Document 33-2 Filed 05/08/20 Page 2 of 12 PageID #: 507
Cross Culture Christian Center v. Newsom, --- F.Supp.3d ---- (2020) 2020 WL 2121111

Courts may issue temporary restraining orders (TROs) when there are serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff, so long as two other factors are present, namely the balance of equities tips in favor of the plaintiff and an injunction is in the public interest.
[5] Injunction When applying a test to determine whether a temporary restraining order (TRO) is warranted, courts operate with the understanding that a TRO, much like a preliminary injunction, is an extraordinary and drastic remedy.

Under normal circumstances, state and local regulations enacted pursuant to a general police power must, always yield in case of conflict to both the Constitution and permissible exercises of federal authority.
[10] States When a state or locality exercises emergency police powers to enact an emergency public health measure, courts will uphold it unless (1) there is no real or substantial relation to public health, or (2) the measures are beyond all question a plain, palpable invasion of rights secured by fundamental law.

[6] Injunction Propriety of a temporary restraining order (TRO) hinges on a significant threat of irreparable injury that must be imminent in nature.
[7] Injunction Portion of application for temporary restraining order (TRO) by church and pastor that sought to temporarily enjoin prohibition of drive-in church services under stay-at-home orders issued by California state and county during COVID-19 pandemic was rendered moot by subsequent clarification by state and county officials that drive-in services were permitted under stay-athome orders provided that congregants refrained from direct or indirect physical contact and did not leave their cars.
[8] States A state's police power entails the authority to enact quarantine laws and health laws of every description—even under normal circumstances; states may invest this authority to counties and cities within their province.
[9] States

[11] Injunction
Church and pastor seeking temporary restraining order (TRO) enjoining enforcement of stayat-home orders issued by California state and county during COVID-19 pandemic, which banned mass gatherings such as sporting events, concerts, dining rooms, and in-person church services, were not likely to succeed on merits of claim that orders were impermissible exercises of emergency police powers; orders bore real and substantial relation to public health goal of preventing widespread transmission of COVID-19, orders flowed from information provided by experts, including Centers for Disease Control and Prevention (CDC), and plaintiffs presented no evidence that their inperson gatherings posed little threat to increasing COVID-19's spread.
[12] States
Under the rare conditions of a public health crisis, the judiciary must afford more deference to officials' informed efforts to advance public health in determining whether those efforts are valid exercises of emergency powers—even when those measures encroach on otherwise protected conduct and thoughtful minds could disagree about how to best balance the scales.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

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Cross Culture Christian Center v. Newsom, --- F.Supp.3d ---- (2020) 2020 WL 2121111

[13] Constitutional Law Free Exercise Clause guards individuals from state interference when exercising sincerely-held religious beliefs. U.S. Const. Amend. 1.
[14] Constitutional Law Religious beliefs need not be acceptable logical, consistent, or comprehensible to others in order to merit First Amendment protection under the Free Exercise Clause. U.S. Const. Amend. 1.
[15] Constitutional Law Laws and ordinances that single out a religious practice for discriminatory treatment must undergo the most rigorous of scrutiny under the Free Exercise Clause. U.S. Const. Amend. 1.
[16] Constitutional Law The freedom to exercise sincerely-held religious beliefs under the Free Exercise Clause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability. U.S. Const. Amend. 1.
[17] Constitutional Law When a neutral law of general application places incidental limits on a religious exercise, the right to practice religion freely under the Free Exercise Clause does not include liberty to expose the community to communicable disease. U.S. Const. Amend. 1.
[18] Constitutional Law Courts look to both the text and the effect of a law that places incidental limits on religious exercise to determine whether it is neutral and generally applicable, as necessary for the law to be subject to rational basis review in determining whether it violates the Free Exercise Clause. U.S. Const. Amend. 1.

[19] Constitutional Law Stay-at-home orders issued by California state and county during COVID-19 pandemic, directing all residents to stay home “except as needed to maintain continuity of operations” for state- and locally-designated sectors, and dubbing “[f]aith based services that are provided through streaming or other technology” as essential, were neutral on their face and in their application, as required for orders to be subject to rational basis review in determining whether they violated Free Exercise Clause, though church and pastor asserted that orders ignored comparable secular assemblies like grocery stores; face of orders prohibited all nonessential gatherings, secular and non-secular, in-person church services were designed to be communal experiences, unlike shopping, and comparable events like concerts were also temporarily prohibited. U.S. Const. Amend. 1.
[20] Constitutional Law Facial neutrality of a law, as necessary for the law to be subject to rational basis review in determining whether it violates the Free Exercise Clause, does not require freedom from any mention of religion; rather it prohibits laws from targeting religious practices, conduct, beliefs, or motivations. U.S. Const. Amend. 1.
[21] Constitutional Law Facial neutrality of a law is not determinative of whether it violates the Free Exercise Clause; the Free Exercise Clause also forbids subtle departures from neutrality. U.S. Const. Amend. 1.
[22] Constitutional Law Apart from the text, the effect of a law in its real operation is strong evidence of its object, for purposes of determining whether the law is neutral, as would warrant rational basis review in determining whether the law violates the Free Exercise Clause. U.S. Const. Amend. 1.

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[23] Constitutional Law Courts will not endorse a law as neutral, as would warrant rational basis review in determining whether the law violates the Free Exercise Clause, if, by design, the law works to target religious conduct. U.S. Const. Amend. 1.
[24] Constitutional Law Stay-at-home orders issued by California state and county during COVID-19 pandemic, directing all residents to stay home “except as needed to maintain continuity of operations” for state- and locally-designated sectors, and dubbing “[f]aith based services that are provided through streaming or other technology” as essential, were generally applicable, for purposes of determining whether orders violated Free Exercise Clause, though church and pastor, against whom city enforced the orders, asserted that orders permitted non-religious assembly at commercial and transportation locations; inperson religious service gatherings were more akin to events like attending movies and concerts, which were prohibited, and there was no indication that city enforced order only against religious entities. U.S. Const. Amend. 1.
[25] Constitutional Law All laws are selective to some extent, but categories of selection are of paramount concern under the Free Exercise Clause when a law has the incidental effect of burdening religious practice. U.S. Const. Amend. 1.
[26] Constitutional Law Selectivity strips a law of its general application, and thus the law would not be subject to rational basis review in determining whether it violates the Free Exercise Clause, when the law's restrictions substantially underinclude non-religiously motivated conduct that might endanger the same governmental interest that the law is designed to protect. U.S. Const. Amend. 1.

[27] Constitutional Law Courts suspect impermissible animus toward religion, as prohibited under the Free Exercise Clause, when the government interest advanced in support of a law is worthy of being pursued only against conduct with a religious motivation. U.S. Const. Amend. 1.
[28] Constitutional Law Courts only compare the prohibited religious conduct with analogous secular conduct when assessing underinclusivity, for purposes of determining whether a law is of general application, as would warrant rational basis review in determining whether the law violates the Free Exercise Clause. U.S. Const. Amend. 1.
[29] Constitutional Law Church and pastor seeking temporary restraining order (TRO) enjoining enforcement of California state and county stay-at-home orders issued during COVID-19 pandemic, which banned mass gatherings, including in-person church services, were not likely to succeed on merits of claim that orders, which were neutral and generally applicable, violated Free Exercise Clause under rational basis review; incidental, albeit uncomfortable, burden state and county orders placed on exercise of religion did not engender type of religious discrimination the Constitution aimed to prevent. U.S. Const. Amend. 1.
[30] Constitutional Law Rational basis review for a neutral law of general applicability under the Free Exercise Clause requires the law be rationally related to a legitimate governmental purpose. U.S. Const. Amend. 1.
[31] Constitutional Law

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Plaintiffs have the burden to negate every conceivable basis which might support the law on rational basis review under the Free Exercise Clause. U.S. Const. Amend. 1.
[32] Constitutional Law Free Exercise Clause commits government to religious tolerance. U.S. Const. Amend. 1.
[33] Civil Rights California state and county stay-at-home orders issued during COVID-19 pandemic, which banned mass gatherings, including in-person church services, were not “land use regulation,” within meaning of Religious Land Use and Institutionalized Persons Act (RLUIPA), which restricted ability of state and local governments to impose or implement land use regulation in manner that imposed substantial burden on exercise of religion, and thus RLUIPA did not apply to orders; stay-at-home orders regulated conduct, not land use. Religious Land Use and Institutionalized Persons Act of 2000 §§ 2, 8, 42 U.S.C.A. §§ 2000cc(a)(1)(A, B), 2000cc-5(5).
Attorneys and Law Firms
Dean Robert Broyles, National Center for Law & Policy, Escondido, CA, Robert H. Tyler, Advocates for Faith & Freedom, Murrieta, CA, for Plaintiffs.
ORDER DENYING EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER
JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE
*1 Cross Culture Christian Center (“Cross Culture Christian” or the “Church”) and its pastor, Jonathan Duncan, filed a ten-count complaint against the City of Lodi, its police chief, and several State and County officials. Compl., ECF No. 1. They allege the stay-at-home orders Governor Newsom and San Joaquin County enacted to slow the spread of COVID-19 (“State Order” and “County Order”)

impermissibly infringe upon their constitutional and statutory rights to speak, assemble, and practice religion as they choose. Plaintiffs then filed an ex parte application for a temporary restraining order. Ex parte Application for TRO (“TRO”), ECF No. 4. They request the Court enjoin enforcement of the State and County orders against Cross Culture Christian so long as the church complies with the CDC's social distancing guidelines while conducting its in-person services. 1 TRO at 2. The State Defendants opposed Plaintiffs' motion. Opp'n by Sonia Angell, Xavier Becerra, Gavin Newsom (“State Opp'n), ECF No. 15. The County and City Defendants filed a joint opposition. Opp'n by City of Lodi, et al. (“Local Opp'n”). The Court also granted leave for Americans United for the Separation of Church and State to file a brief as amicus curiae in support of Defendants. ECF No. 18. Plaintiffs then filed a reply. ECF No. 21.
For the reasons set forth below, the Court DENIES Plaintiffs' request for a temporary restraining order.
I. FACTUAL BACKGROUND
Cross Culture Christian is a church in Lodi, California led by Pastor Duncan. Compl. ¶¶ 17, 18. Cross Culture Christian used to hold Wednesday and Sunday services in the sanctuary of a building it rented from Bethel Open Bible Church. Compl. ¶ 56. But in March 2019, Governor Newsom and San Joaquin County began issuing stay at home orders to combat the rapid spread of COVID-19. Compl. ¶¶ 31, 36. The Lodi Police Department, enforcing these orders, eventually required the Church to stop holding in-person services. Compl. ¶ 75.
In early March, Governor Newsom enacted Executive Order N-33-20, a statewide “stay at home order.” Compl. ¶ 31. The order directed California residents to “stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure services.” Compl. ¶ 32; Ex. A to Compl., ECF No. 1-1. Governor Newsom reserved authority to “designate additional sectors as critical [to] protect the health and well-being of all Californians.” Id. On March 21, San Joaquin County followed suit. Compl. ¶ 36. It issued a stay at home order directing “all businesses and governmental agencies to cease nonessential operations at physical locations in the county” and prohibiting “all non-essential gatherings of any number of individuals.” Ex. 2 to Compl., ECF No. 1-2. The County order

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also incorporated Executive Order N-33-20 by reference. Id. at 1.
As COVID-19 continued to spread, Governor Newsom and County officials issued amendments containing increasingly stringent restrictions. Compl. ¶¶ 31-46. California's March 22 order set forth with more specificity its list of “Essential Critical Infrastructure Workers.” Compl. ¶ 33; Ex. 6 to Compl., ECF No. 1-6. The amendment designates “[f]aith based services that are provided through streaming or other technology” as an essential part of the “Other CommunityBased Government Operations and Essential Functions” sector. Ex. 6 to Compl. at 11. The list otherwise makes no mention of faith, churches, religion, religious workers, Christianity, worship, or prayer. The County's March 26 order removed an exemption in the earlier order that allowed six or fewer nonrelatives to meet at someone's home or place of residence. Ex. 3 to Compl., ECF No. 1-3. Cross Culture Christian nevertheless continued to hold in-person services throughout the month of March. Compl. ¶¶ 63-65.
*2 In response to the Church's continued operation, three Lodi police officers posted a notice on the building, explaining that its non-essential use of the facility was a public nuisance. Compl. ¶ 73. Two days later, on April 3, a County Public Health Officer issued an Order Prohibiting Public Assembly to the Church's lessor, Bethel Open Bible Church. Compl. ¶ 43; Ex. 4 to Compl., ECF No. 1-4. The order stated that allowing a tenant to hold in-person services violated the State and County stay at home orders. The order concluded, “[a]ny person who refuses or willfully neglects to comply with this emergency order is guilty of a misdemeanor, punishable by fine and/or imprisonment.” Id. Bethel Open Bible Church could, however, continue to operate its childcare facility “consistent with the order of the State Public Health Officer.” Id.

can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). To this end, a court may take judicial notice “of court filings and other matters of public record,” Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006), including “government documents available from reliable sources on the internet,” California River Watch v. City of Vacaville, No. 2:17-cv-00524-KJM-KJN, 2017 WL 3840265, at *2 n.1 (E.D. Cal. Sept. 1, 2017).
[2] The State Defendants request the Court take judicial notice of various filings, rulings, and hearing transcripts related to motions for temporary restraining orders in the following cases: Gish v. Newsom, No. 5:20-cv-00755-JGBKK (C.D. Cal.); Abiding Place Ministries v. Wooten, No. 3:20-cv-00683-BAS-AHG (S.D. Cal.); Nigen v. New York, No. 1:20-cv-01567-EK-PK (E.D.N.Y.); Tolle v. Northam, No. 1:20-cv-00363-LMB-MSN (E.D. Va.); Binford v. Sununu, NO. 217-2020-cv-00152 (N.H. Sup. Ct.); On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-cv-264-JRW (W.D. Ky.); Temple Baptist Church v. City of Greenville, No. 4:20cv-00064-DMB-JMV (N.D. Miss.). Grabarsky Decl. to State Opp'n ¶¶ 8-14, ECF No. 15-1. The City and County Defendants (“Local Defendants”) request judicial notice of the following documents issued by the state and federal government:
• State of California's Proclamation of a Statewide Emergency, from the Executive Department, State of California, signed by Governor Gavin Newsom on March 4, 2020;
• State of California Department – Health and Human Services Agency, California Department of Public Health, Public Guidance for the Prevention of COVID-19 Transmission for Gatherings, dated March 16, 2020;

The following Sunday, Duncan returned to Cross Culture Christian. His landlord had changed the locks. Compl. ¶ 75. Lodi law enforcement barred access to the property under threat of citation. Compl. Id.
II. OPINION
A. Judicial Notice [1] District courts may take judicial notice of “a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2)

• Executive Order N-33-20, from the Executive Department of the State of California, signed by Governor Gavin Newsom on March 19, 2020;
• U.S. Department of Homeland Security Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, from Director Christopher C. Krebs, dated March 28, 2020; and
• State of California Public Health Officer Designation of Essential Critical Infrastructure Workers, dated April 28, 2020.

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Local Defendants' Request for Judicial Notice, ECF No. 17.

services” and would “keep their assemblies under 50 persons until the dangers posed by COVID-19 pass.” TRO at 22. 2

The court filings and government documents Defendants reference are all proper subjects of judicial notice. The Court therefore GRANTS Defendants' requests. In doing so, the Court judicially notices “the contents of the documents, not the truth of those contents.” Gish v. Newsom, No. EDCV 20-755-JGB(KKx), 2020 WL 1979970, at *2 (C.D. Cal. April 23, 2020).

But as Defendants argue, Plaintiffs cannot show they are likely to succeed on the merits of the two claims referenced in their motion for temporary restraining order. See TRO at 6-18. As an initial matter, both stay at home orders flow from valid exercises of state and local emergency police powers. Moreover, Plaintiffs are unlikely to show the orders violate the Free Exercise Clause or even implicate RLUIPA's

protections. For the same reasons, Plaintiffs also fail to raise

B. Legal Standard

serious questions going to the merits of these two claims. As

*3 [3] [4] [5] [6] A party seeking a temporarya result, the Ninth Circuit's “serious question” analysis does

restraining order must establish (1) he is likely to succeed on not provide them an alternative avenue for preliminary relief.

the merits; (2) he is likely to suffer irreparable harm absent

preliminary relief; (3) the balance of equities tips in his favor,

and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); see also Stuhlbarg Intern Sales Co., Inc.

1. Likelihood of Success on the Merits / Serious Questions going to the Merits

v. John D. Brush and Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). In the Ninth Circuit, courts may also issue temporary

a. Emergency Powers

restraining orders when there are “serious questions going to the merits” and a “balance of hardships that tips sharply towards the plaintiff” so long as the remaining two Winter factors are present. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). When applying either test, courts operate with the understanding that a temporary restraining order, much like a preliminary injunction, is an “extraordinary and drastic remedy.” Cf. Munaf v. Geren, 553 U.S. 674, 690, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). “The propriety of a temporary restraining order, in particular, hinges on a significant threat of irreparable injury [ ] that must be imminent in nature.” Gish, No. EDCV 20-755-JGB(KKx), 2020 WL 1979970, at *3 (April 23, 2020) (citing Simula, Inc.

[8] [9] Over a hundred years ago, the Supreme Court upheld a state's exercise of its general police powers to promote public safety during a public health crisis. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 49 L.Ed. 643 (1905). A state's police power entails the authority “to enact quarantine laws and ‘health laws of every description’ ”—even under normal circumstances. Id. States may invest this authority to counties and cities within their province. Id. Under normal circumstances, however, state and local regulations enacted pursuant to a general police power must, “always yield in case of conflict” to both the Constitution and permissible exercises of federal authority. Id.

v. Autoliv, Inc., 175 F.3d. 716, 725 (9th Cir. 1999); Caribbean Marine Serv. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)).

*4 [10] But sometimes, normalcy is lost. When that occurs, “[t]he authority to determine for all what ought to be done in [ ] an emergency must [be] lodged somewhere or in

some body.” Id. at 27, 25 S.Ct. 358. It is not “unusual nor

C. Analysis [7] Plaintiffs request the Court enjoin Defendants from enforcing the State and County stay at home orders against the Church's biweekly in-person services. TRO at 1-2. Plaintiffs contend they satisfy each of the four conventional Winter factors. If allowed to resume in-person services, Plaintiffs maintain they would “follow CDC guidelines and San Joaquin County social distancing protocols in the use of their sanctuary for assemblies and their parking lot for drive-in

[ ] unreasonable or arbitrary” to invest that authority in the state, for “[a] community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. In view of this principle, when a state or locality exercises emergency police powers to enact an emergency public health measure, courts will uphold it unless (1) there is no real or substantial relation to public health, or (2) the measures are “beyond all question” a “plain, palpable invasion of rights secured by [ ] fundamental law.” Id. at 30, 25 S.Ct. 358. 3

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[11] This Court finds the State and County stay at home orders being challenged here bear a real and substantial relation to public health. Arguing otherwise, Plaintiffs contend Cross Culture Christian's biweekly services “do not pose a unique or unacceptable threat to public health and safety”—“[i]n fact, the Church ... is much safer than shopping at Costco, Walmart, or Home Depot in Lodi.” TRO at 20. This argument is unpersuasive for the following reasons. First, it assumes that the State and County's designation of essential activities turns solely upon people's ability to comply with the CDC guidelines while engaged in those activities. Not so. The State's order expressly states it took other considerations into account, i.e., continuing non-COVID-19 emergency services, providing clean water, protecting the state's supply chains, etc. See Ex. 6 to Compl.
Second, Plaintiffs' argument ignores Jacobson's mandate that, during public health crises, “it is no part of the function of a court... to determine which of two modes was likely to be the most effective for the protection of the public against disease.” Jacobson, 197 U.S. at 30, 25 S.Ct. 358; see also In re Abbott, 954 F.3d at 777. Starting in December 2019, “California began working closely with the national Centers for Disease Control and Prevention, the United States Health and Human Services Agency, and local health departments to monitor and plan for the potential spread of COVID-19.” State Opp'n at 3 (citing Grabarsky Decl). The State and County orders flow from the information those experts provided. Id. at 3-4. To successfully argue the State and County orders do not reflect reasoned responses to the COVID-19 pandemic, plaintiffs must do more than contend they would have done things differently. Jacobson, 197 U.S. at 30, 25 S.Ct. 358. Plaintiffs here did not carry that burden.
Finally, Plaintiffs failed to produce any evidence that their inperson gatherings pose little threat of increasing COVID-19's spread. “Because asymptomatic and pre-symptomatic carriers of the virus can infect others,” Plaintiffs' belief that the Church's congregants “have never had or contracted [ ] coronavirus ... never been at any time exposed to the danger of contracting it, and [ ] never been in any locality where [ ] coronavirus ... has [ ] existed,” is “largely meaningless.” Gish, 2020 WL 1979970, at *4. Indeed, the known reality of how unknown carriers transmit this highly-infectious disease further belies Plaintiffs' argument. See State Opp'n at 9; Brief of Amicus Curiae Americans United for Separation of Church and State at 17-18 (“Americans United Amicus”), ECF No. 9-1; see also Hilda Flores, One-third of COVID-19

cases in Sac County tied to church gatherings, officials say, KCRA (Apr. 1, 2020, 2:55 PM) 4 ; Tony Bizjak, et al., 71 infected with coronavirus at Sacramento church. Congregation tells county ‘leave us alone’, SACRAMENTO BEE (Apr. 2, 2020) 5 ; Richard Read, A choir decided to go ahead with rehearsal; Now dozens of members have COVID-19 and two are dead, L.A. TIMES (March 29, 2020) 6 ; Bailey Loosmore & Mandy McLaren, Kentucky county ‘hit really, really hard’ by church revival that spread deadly COVID-19, LOUISVILLE COURIER JOURNAL (updated Apr. 2, 2020) 7 . Plaintiffs claim their in-person gatherings pose no greater threat to life than the activities the State and County orders permit. TRO at 20. But as the Central District of California recently explained: even if holding inperson services is just as safe as keeping grocery stores open, people will die. Gish, 2020 WL 1979970, at *6 (citing Dalvin Brown, COVID-19 Claims Lives of 30 Grocery Store Workers, Thousands More May Have It, Union Says, USA TODAY, (last accessed April 23, 2020)) 8 .
*5 [12] Even in times of health, government officials must often strike the delicate balance between ensuring public safety and preserving the Constitution's fundamental guarantees. The judiciary plays an important role in ensuring that balance is permissibly struck. But during public health crises, new considerations come to bear, and government officials must ask whether even fundamental rights must give way to a deeper need to control the spread of infectious disease and protect the lives of society's most vulnerable. Under these rare conditions, the judiciary must afford more deference to officials' informed efforts to advance public health—even when those measures encroach on otherwise protected conduct; even when thoughtful minds could disagree about how to best balance the scales. See Jacobson, 197 U.S. at 28-32, 34-38, 25 S.Ct. 358; Gish, 2020 WL 1979970, at *4-5.
The State and County bans on mass gatherings such as sporting events, concerts, dining rooms, and in-person church services flow from a larger goal of substantially reducing inperson interactions. See State Opp'n at 14. Plaintiffs fail to show this goal, and the means used to achieve it, do not bear a “real and substantial relationship” to preventing widespread transmission of COVID-19. See Jacobson, 197 U.S. at 30, 25 S.Ct. 358. Moreover, as explained below, Plaintiffs do not show the orders are “beyond all question” a “plain, palpable invasion of rights secured by [ ] fundamental law.” Id. at 30, 25 S.Ct. 358. The Court finds Plaintiffs are not likely

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to succeed on the merits of their challenge to the State and County orders direct all residents to stay home “except as

County stay at home orders as impermissible exercises of needed to maintain continuity of operations” for state- and

emergency police powers.

locally-designated sectors. Exs. 5-6 to Compl. The orders

then dub “[f]aith based services that are provided through

streaming or other technology” as essential. Id. They do

b. Free Exercise Clause

not, however, include in-person religious assemblies in their list of exemptions. Now properly situated, the Court does

[13] [14] [15] The First Amendment, as incorporated not find this qualifies as facially discriminatory text. “Facial against states through the Fourteenth Amendment, protects neutrality does not require freedom from any mention of the “free exercise” of religion. U.S. CONST. Amend. 1; religion.” Gish, 2020 WL 1979970, at *6. Rather it prohibits Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. laws from targeting “religious practice[s], conduct, belief[s], 900, 84 L.Ed. 1213 (1940). The Free Exercise Clause guards or motivation[s].” Stormans, 794 F.3d at 1076. The face individuals from state interference when exercising sincerely- of the orders prohibit all non-essential gatherings. Exs. 5-6 held religious beliefs. Church of the Lukumi Babalu Aye, to Compl. The exempted categories of “essential” conduct Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, include religious and secular activities; as do the non124 L.Ed.2d 472 (1993). “[R]eligious beliefs need not be exempted categories. Exs. 1, 5-6 to Compl. Looking only to acceptable logical, consistent, or comprehensible to others the text of the orders, the Court does not find that the orders' in order to merit First Amendment protection.” Id. (quoting exemptions discriminate on the basis of religion.

Thomas v. Review Bd. of Indiana Employ. Sec. Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). Laws and ordinances that “single[ ] out” a religious practice for discriminatory treatment “must undergo the most rigorous of scrutiny.” Id. at 538, 546, 113 S.Ct. 2217.

*6 [21] [22] [23] Admittedly, “[f]acial neutrality is not determinative”; the Free Exercise Clause also “forbids subtle departures from neutrality.” Masterpiece Cakeshop v. Colorado Civil Rights Commission, ––– U.S. ––––, 138 S. Ct. 1719, 1731, 201 L.Ed.2d 35 (2018) (quoting Church

[16] [17] [18] But the understandably cherished freedom of Lukumi, 508 U.S. at 534, 113 S.Ct. 2217). “Apart from to exercise sincerely-held religious beliefs “does not relieve the text, the effect of a law in its real operation is strong an individual of the obligation to comply with a valid and evidence of its object.” Church of Lukumi, 508 U.S. at 535, neutral law of general applicability.” County Opp'n at 10 113 S.Ct. 2217. Courts will not endorse a law as neutral (quoting Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075-76 if, by design, the law works to target religious conduct. (9th Cir. 2015); State Opp'n at 13 (same). More specifically, Id. Plaintiffs contend the State and County order so target when a neutral law of general application places incidental in-person church services. TRO at 10. They argue that, limits on a religious exercise, “the right to practice religion by proscribing faith-based gatherings and assemblies but freely does not include liberty to expose the community ... permitting “a host of comparable secular places where people to communicable disease.” Legacy Church, ––– F.Supp.3d gather and assemble,” the orders have fashioned a “religious at ––––, 2020 WL 1905586, at *30 (quoting Prince v. gerrymander” akin to the one struck down in Church of Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 88 L.Ed. Lukumi, 508 U.S. at 534, 113 S.Ct. 2217.

645 (1944)). Courts look to both the text and the effect of a law to determine whether it is neutral and generally applicable. Parents for Privacy v. Barr, 949 F.3d 1210, 1234 (9th Cir. 2020).

But when Plaintiffs argue that church “is the only [ ] ‘essential service’ on the state list that is required to limit its core practice [ ] to electronic communication”, Reply at 1, they ignore that all comparable assemblies

[19] [20] The Court first finds that the State and County are completely prohibited. Grocery stores, liquor stores, orders are neutral. [T]he minimum requirement of neutrality and marijuana dispensaries are not the proper point of is that a law not discriminate on its face.” Church of comparison. “[I]ndividuals enter [these stores] at various Lukumi, 508 U.S. at 533, 113 S.Ct. 2217. Plaintiffs contend times to purchase various items; they move around the store the State and County orders facially discriminate against individually ... and they leave when they have achieved religious gatherings because they “prohibit all ‘faith based’ their purpose.” Maryville Baptist Church, Inc. v. Beshear, assemblies even if they strictly follow CDC and social No. 3:20-cv-278-DJH, ––– F.Supp.3d ––––, ––––, 2020 WL distancing guidelines.” TRO at 8. To be clear, the State and 1909616, at *2 (W.D. Ky Apr. 18, 2020). In-person church

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services, on the other hand, are “by design a communal have not produced any evidence that the City only enforced

experience, one for which a large group of individuals come the stay at home orders against religious entities. See Local

together at the same time in the same place for the same Opp'n at 12-13. Indeed, the City contends it issued Orders

purpose.” Id. By Plaintiffs' own admission, they seek to Precluding Public Assembly “to any property owner in the

assemble, in part, for the sake of assembling. Compl. ¶ County where the County [had] knowledge that a gathering

58 (“The Church has a sincerely and deeply held religious in violation of the Public Health Orders likely took place.”

belief that it is essential for them as Christians to assemble Local Opp'n at 12. On the admittedly thin record before

and regularly gather together in person for the teaching the Court, nothing supports a finding that Lodi targeted the

of God's Word, prayer, worship, baptism, communion, and Church because of its religious status rather than because

fellowship.”). Consequently, “a more apt comparison ... is it violated the law. See Americans United Amicus at 10.

a restaurant[,] entertainment venue ... movie, concert, or The Court therefore finds the State and County orders are

sporting event.” Id. Like in-person church services, the State generally applicable.

and County orders temporarily prohibit all these activities.

State Opp'n at 14-15; County Opp'n at 11-12. The State and [29] [30] [31] Being neutral laws of general applicability,

County orders are neutral both on their face and in their the State and County stay at home orders are only subject to

application.

rational basis review. Church of Lukumi, 508 U.S. at 543,

113 S.Ct. 2217. This standard requires a law be “rationally

[24] [25] [26] [27] The Court also finds the ordersrelated to a legitimate governmental purpose.” Stormans, 794

are generally applicable. “All laws are selective to some F.3d at 1084. “Plaintiffs ‘have the burden to negat[e] every

extent, but categories of selection are of paramount concern conceivable basis which might support [the rules].’ ” Id.

when a law has the incidental effect of burdening religious (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315,

practice.” Church of Lukumi, 508 U.S. at 542, 113 S.Ct. 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Plaintiffs did not

2217. Selectivity strips a law of its general application meet that burden here. Accordingly, they are not likely to

when the law's restrictions “substantially underinclude non- succeed on their Free Exercise claim.

religiously motivated conduct that might endanger the same

governmental interest that the law is designed to protect.” [32] “The Free Exercise Clause commits government [ ] to

Stormans, 794 F.3d at 1079. Courts suspect impermissible religious tolerance.” Church of Lukumi, 508 U.S. at 547, 113

animus toward religion when the government interest S.Ct. 2217. “[E]ven slight suspicion that proposals for state

advanced “is worthy of being pursued only against conduct intervention stem from animosity to religion or distrust of its

with a religious motivation.” Church of Lukumi, 508 U.S. at practices, all officials must pause to remember their own high

542, 113 S.Ct. 2217.

duty to the Constitution and to the rights it secures.” Church

of Lukumi, 508 U.S. at 547, 113 S.Ct. 2217. This Court

[28] Plaintiffs claim “people are regularly gathering and has so paused. But the incidental— albeit uncomfortable—

assembling at numerous commercial and transportation burden the State and County orders place on the exercise

locations,” and that the State and County orders “allow[ ] of religion simply do not engender the type of religious

them to do so all day long.” TRO at 11. These gatherings, discrimination the Constitution aims to prevent. The State

they argue, are non-religiously motivated conduct that and County orders are not unconstitutional. Rather they are

endangers the same governmental interest the orders claim to permissible exercises of emergency police powers especially

protect. Id. But courts only “compare the prohibited religious given the extraordinary public health emergency facing the

conduct with analogous secular conduct when assessing State. Plaintiffs are not entitled to a temporary restraining

underinclusivity.” Gish, 2020 WL 1979970, at *6 (citing order enjoining the application of State and County orders

Stormans, 794 F.3d at 1079) (emphasis added). And as protecting the public health from a virulently infectious

previously explained, the type of gathering that occurs at in- and frequently deadly disease. Their challenge to these

person religious services is much more akin to conduct the COVID-19-related public health orders is therefore denied.

orders prohibit—attending movies, restaurants, concerts, and

sporting events—than that which the orders allow.

*7 The orders are no less generally applicable because the City of Lodi enforced them against Pastor Duncan. Plaintiffs

c. Religious Land Use and Institutionalized Persons Act (RLUIPA)

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[33] RLUIPA restricts state and local governments' ability to “impose or implement land use regulation in a manner that imposes a substantial burden on the religious exercise of a person.” 42 U.S.C. § 2000cc(a)(1). If a land use regulation imposes a “substantial burden,” the government must show the imposition of that burden is the least restrictive means of furthering a compelling government interest. 42 U.S.C. § 2000cc(a)(1)(A),(B). RLUIPA defines “land use regulation” as “a zoning or landmarking law, or the application of such a law.” 42 U.S.C. § 2000cc-5(5). The State and County stay at home orders regulate conduct, not land use. See Exs. 5-6 to Compl. Plaintiffs fail to identify any cases where a court has upheld a challenge under this provision to a conductregulating statute. Indeed, interpreting RLUIPA to regulate conduct in this way would raise constitutional questions about the law's congruence and proportionality. See Guru Nanak Sikh Soc. Of Yuba City v. County of Sutter, 456 F.3d 978, 986 (9th Cir. 2006) (citing Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005))(“To avoid RFRA's fate, Congress wrote that RLUIPA would apply only to regulations regarding land use and prison conditions.”) Employing the canon of constitutional avoidance, this Court finds RLUIPA, by its own terms, does not apply to the State and County orders. Plaintiffs are therefore unlikely to succeed on the merits of this claim.

2. Remaining Factors
*8 A district court may not grant a plaintiff's motion for a temporary restraining order if the request fails to show the plaintiff is likely to succeed on the merits of a claim or, at least, raises serious questions going to the merits of that claim. See Winter, 555 U.S. at 20, 129 S.Ct. 365; Alliance for Wild Rockies, 632 F.3d at 1135. Plaintiffs here did not make either showing. The Court need not consider the remaining factors in denying their request. Gish, 2020 WL 1979970, at *7.
III. ORDER
For the reasons set forth above, the Court DENIES Plaintiffs ex parte application for a temporary restraining order.
IT IS SO ORDERED.
All Citations
--- F.Supp.3d ----, 2020 WL 2121111

Footnotes

1

Plaintiffs' ex parte application was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g).

2

After Plaintiffs filed this suit, the State and County both clarified that drive-in services are permitted under the stay at

home orders provided congregants “refrain from direct or indirect physical contact” and “do not leave their cars.” See

State Opp'n at 4; Ex. 13 to Grabarsky Decl.; County Opp'n at 5; Ex. N to Park Decl., ECF No. 17-1. The Court denies as

moot the portion of Plaintiffs' motion that seeks to temporarily enjoin either order's prohibition of drive-in services. See

Bd. of Trustees of Glazing Health and Welfare Trust v. Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019).

3

Even with a hundred years of hindsight, courts continue to adopt Jacobson's benchmark when reviewing emergency

public health measures enacted pursuant to emergency police powers. See, e.g., Gish, 2020 WL 1979970, at *5 (citing

Jacobson, 197 U.S. at 31, 25 S.Ct. 358); Robinson v. Attorney General, No. 20-11401-B, ––– Fed.Appx. ––––, ––––,

2020 WL 1952370, at *8 (11th Cir. April 23, 2020) (same); In re Abbott, No. 20-50296, 956 F.3d 696, at ––––, 2020

WL 1911216, at *16 (5th Cir. 2020); Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB/SCY, ––– F.Supp.3d ––––,

––––, 2020 WL 1905586, at *40 (D. N.M. April 17, 2020) (same); Hickox v. Christie, 205 F.Supp.3d 579, 591-93 (D.

N.J. 2016) (same).

4

Available at https://www.kcra.com/article/sacramento-county-one-third-of-covid-19-cases-tied-church-gatherings-

officials-say/32011107#.

5

Available at https://www.sacbee.com/news/coronavirus/article241715346.html.

6

Available at https://www.latimes.com/world-nation/story/2020-03-29/coronavirus-choir-outbreak.

7

Available at https://www.courier-journal.com/story/news/2020/04/01/coronavirus-kentucky-church-revival-leads-28-

cases-2-deaths/5108111002/

8

Available at https://www.usatoday.com/story/money/2020/04/14/coronavirus-claims-lives-30-grocery-store-workers-

union-says/2987754001/.

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End of Document

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2020 WL 1905586 Only the Westlaw citation is currently available.
United States District Court, D. New Mexico.
LEGACY CHURCH, INC., Plaintiff, v.
Kathyleen M. KUNKEL and the State of New Mexico, Defendants.

preliminary injunction are not binding at trial on the merits. Fed. R. Civ. P. 52(a)(2).
[2] Injunction Evidence Injunction Hearing procedure The Federal Rules of Evidence do not apply to temporary restraining order (TRO) or preliminary injunction hearings.

No. CIV 20-0327 JB\SCY |
Filed 04/17/2020
Synopsis Background: Church brought § 1983 action for injunctive relief against State of New Mexico and Secretary of New Mexico Department of Health, asserting violations of Free Exercise Clause and First Amendment right to peaceably assemble, relating to Secretary's emergency order, issued during COVID-19 pandemic, removing exemption, for places of worship, from order prohibiting mass gatherings without social distancing, i.e., gatherings of five or more people in spaces in which individuals were within six feet of each other. Church filed motion for temporary restraining order (TRO).

[3] Injunction of remedy

Extraordinary or unusual nature

Injunction Entitlement to Relief

Injunction of remedy

Extraordinary or unusual nature

Injunction Entitlement to relief;  likelihood of success

Injunctive relief, pursuant to a temporary restraining order (TRO) or a preliminary injunction, is an extraordinary remedy, and the movant must demonstrate a clear and unequivocal right to have a request granted.

Holdings: The District Court, James O. Browning, J., held that: [1] state had Eleventh Amendment immunity from suit; [2] church was not likely to succeed on merits of free exercise claim; and [3] church was not likely to succeed on merits of assembly claim.
Complaint dismissed in part; motion denied.
West Headnotes (65)

[4] Injunction Preservation of status quo Injunction Preservation of status quo The purpose of a temporary restraining order (TRO) or a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.
[5] Injunction Irreparable harm Injunction Adequacy of remedy at law “Irreparable injury,” as element for establishing the right to a temporary restraining order (TRO), is harm that cannot be undone, such as by an award of compensatory damages or otherwise. Fed. R. Civ. P. 65(b).

[1] Injunction Operation and effect
The findings of fact and conclusions of law made by a court when granting or denying a temporary restraining order (TRO) or a

[6] Injunction factors

Grounds in general;  multiple

A party moving for a temporary restraining order (TRO) must establish that he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that a TRO is in the public interest.

[7] Injunction Entitlement to relief;  likelihood of success
Injunction Irreparable harm
The likelihood-of-success and irreparable-harm factors are the most critical in the analysis of whether a temporary restraining order (TRO) should be granted.

[8] Injunction Entitlement to relief;  likelihood of success
Injunction Irreparable harm
To obtain a temporary restraining order (TRO), it is insufficient that a moving party demonstrate that there is only a possibility of either success on the merits or irreparable harm.

[9] Injunction Discretion of court
Courts have wide discretion in determining whether to require security from the party seeking a temporary restraining order (TRO) and may, therefore, impose no bond requirement. Fed. R. Civ. P. 65(c).

[10] Constitutional Law Religion

Free Exercise of

Under the Free Exercise Clause, while freedom of religious belief is absolute, freedom of religious practice is subject to restraint, and permitting unconstrained freedom of religious practice would make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself; government could exist only in name under such circumstances. U.S. Const. Amend. 1.

[11] Constitutional Law Religion

Free Exercise of

A state may not, by statute, wholly deny the right to preach or to disseminate religious views; plainly such a previous and absolute restraint would violate the terms of the Free Exercise Clause. U.S. Const. Amend. 1.

[12] Constitutional Law Religion

Free Exercise of

Constitutional Law Freedom to believe

The Free Exercise Clause embraces two concepts, freedom to believe and freedom to act, and the first is absolute but, in the nature of things, the second cannot be, and conduct remains subject to regulation for the protection of society. U.S. Const. Amend. 1.

[13] Constitutional Law Religion

Free Exercise of

The Free Exercise Clause does not require the government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. U.S. Const. Amend. 1.

[14] Constitutional Law  compelling interest

Strict scrutiny;

Under the Free Exercise Clause, not all governmental actions which make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs require government to bring forward a compelling justification for its otherwise lawful actions. U.S. Const. Amend. 1.

[15] Constitutional Law Religion

Free Exercise of

The Free Exercise Clause is written in terms of what the government cannot do to the individual,

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not in terms of what the individual can exact from government. U.S. Const. Amend. 1.

[16] Constitutional Law applicability

Neutrality;  general

Under the Free Exercise Clause, generally applicable, neutrally applied laws that incidentally restrict religious exercise need be only rational and legitimate exercises of governmental power. U.S. Const. Amend. 1.

It is a general rule under the Free Exercise Clause that religious and philosophical objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law, but in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views neutral and respectful consideration. U.S. Const. Amend. 1.

[17] Constitutional Law  compelling interest

Strict scrutiny;

Requiring strict scrutiny of generally applicable, neutrally applied laws that incidentally restrict religious exercise would endanger myriad important legislation in the nation's cosmopolitan, religiously diverse society, and accordingly, the religious adherent asserting a claim under the Free Exercise Clause holds the burden to demonstrate that across-the-board, neutrally applied laws are irrational or beyond the government's authority. U.S. Const. Amend. 1.

[18] Constitutional Law Religion

Free Exercise of

Under the Free Exercise Clause, the government may not impose special disability or withhold government benefits on the basis of one's religion. U.S. Const. Amend. 1.

[19] Constitutional Law Religion

Free Exercise of

The Free Exercise Clause commands that government may not base laws or regulations on hostility to a religion or religious viewpoint. U.S. Const. Amend. 1.

[20] Constitutional Law applicability

Neutrality;  general

[21] Constitutional Law applicability

Neutrality;  general

A law may not be generally applicable, so that rational basis review applies in a Free Exercise Clause challenge, where the law has built-in exemptions that do not extend to accommodate religious exercise; if the state has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without a compelling reason. U.S. Const. Amend. 1.

[22] Constitutional Law First Amendment
The First Amendment right to assemble is applicable to state action, because the Due Process Clause of the Fourteenth Amendment incorporates the right to assemble. U.S. Const. Amends. 1, 14.

[23] Constitutional Law Right of Assembly
The First Amendment right to assemble cannot be denied without violating the fundamental principles which lie at the base of all civil and political institutions. U.S. Const. Amend. 1.

[24] Constitutional Law in General

Constitutional Rights

Constitutional Law Right of Assembly

Constitutional rights may at times, under the pressure of great dangers, be restricted as the safety of the general public may demand, and

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this allows the state to restrict, for example, one's right to assemble. U.S. Const. Amend. 1.

[25] Constitutional Law association

Expressive

Expressive association is the right to associate for the purpose of engaging in those activities protected by the First Amendment, i.e., speech, assembly, petition for the redress of grievances, and the exercise of religion. U.S. Const. Amend. 1.

[26] Constitutional Law Political speech, beliefs, or activity in general
The First Amendment protects political expression manifested through conduct as well as through speech. U.S. Const. Amend. 1.

The First Amendment's protection of expressive association is not reserved for advocacy groups, but to come within its ambit, a group must engage in some form of expression, whether it be public or private. U.S. Const. Amend. 1.
[30] Federal Courts Waiver by State;  Consent In absence of waiver of Eleventh Amendment immunity, State of New Mexico could not be sued under § 1983 in federal court, by church, for allegedly violating the Free Exercise Clause and the First Amendment right to peaceably assemble, relating to emergency order of Secretary of New Mexico Department of Health, issued during COVID-19 pandemic and removing exemption, for places of worship, from earlier order prohibiting mass gatherings of five or more people without social distancing. U.S. Const. Amends. 1, 11; 42 U.S.C.A. § 1983; N.M. Stat. Ann. §§ 9-7-6(B)(5), 24-1-3(E).

[27] Constitutional Law association

Expressive

Expressive association is not an absolute right under the First Amendment, because there may be countervailing principles that prevail over the right of association, and infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. U.S. Const. Amend. 1.

[28] Constitutional Law association

Expressive

Although it is possible to find some kernel of expression in almost every activity a person undertakes, such a kernel is not sufficient to bring the activity within the First Amendment's protection of expressive association. U.S. Const. Amend. 1.

[29] Constitutional Law association

Expressive

[31] Federal Courts Suits Against States;  Eleventh Amendment and Sovereign Immunity State sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself. U.S. Const. Amend. 11.
[32] Federal Courts Suits Against States;  Eleventh Amendment and Sovereign Immunity Federal Courts Waiver by State;  Consent Despite the Eleventh Amendment's text, States are immune from suit in federal courts that their own citizens bring, and from suits by their own citizens in their own courts without their consent. U.S. Const. Amend. 11.
[33] Federal Courts Civil rights and discrimination in general Federal Courts Waiver by State;  Consent Federal Courts Suits for injunctive or other prospective or equitable relief;  Ex parte Young doctrine

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Federal Courts Agencies, officers, and public employees
There are only three ways for private plaintiffs to circumvent a state's immunity under the Eleventh Amendment from suit in federal court: (1) suits against state officials for injunctive relief, and, in some cases, money damages; (2) suits to which states consent; and (3) suits invoking Congressional statutes pursuant to the Fourteenth Amendment. U.S. Const. Amends. 11, 14.

from suit in federal court. U.S. Const. Amend. 11.
[38] Federal Courts Civil rights and discrimination in general The enactment of § 1983 does not provide sufficient indication that Congress intended to override the Eleventh Amendment immunity of states from suits in federal court. U.S. Const. Amend. 11; 42 U.S.C.A. § 1983.

[34] Federal Courts Suits for injunctive or other prospective or equitable relief;  Ex parte Young doctrine Federal Courts Agencies, officers, and public employees The Eleventh Amendment permits federal courts to grant injunctions against state officials, even when compliance will cost the state great expense in the future. U.S. Const. Amend. 11.
[35] Federal Courts Waiver by State;  Consent An explicit waiver of a state's Eleventh Amendment immunity from suit in federal court requires the state to expressly agree to be sued in federal court, and a state's consent to be sued in its own courts is not enough. U.S. Const. Amend. 11.
[36] Federal Courts By constitution or statute For a state statute or constitutional provision to validly waive the state's Eleventh Amendment immunity from suit in federal court, it must specify the state's intention to subject itself to suit in federal court. U.S. Const. Amend. 11.
[37] Federal Courts Implied or Constructive Waiver or Consent Constructive consent, such as by failing to object to a federal court's jurisdiction, is not enough to waive a state's Eleventh Amendment immunity

[39] Civil Rights States and territories and their agencies and instrumentalities, in general States are not “persons” within the meaning of § 1983, which authorizes civil rights suits against persons who, under color of state law, deprive citizens of federal constitutional rights. 42 U.S.C.A. § 1983.
[40] Injunction Prohibitory nature;  preservation of status quo Injunction Mandatory injunctions;  restoration of status quo Injunction Scope of Relief in General Three disfavored injunctions, which a district court should more closely scrutinize to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course, are: (1) mandatory rather than prohibitory injunctions; (2) injunctions that change the status quo; and (3) injunctions that grant all the relief that the moving party could expect to win at trial.
[41] Injunction Mandatory injunctions;  restoration of status quo An injunction is a “mandatory injunction,” so that it is a disfavored injunction which a district court should more closely scrutinize to assure that the exigencies of the case support the granting of an extraordinary remedy, if the requested relief affirmatively requires the nonmovant to act in a particular way, and as a

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result places the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction.
[42] Civil Rights Preliminary Injunction Temporary restraining order (TRO) requested by church was prohibitory, in contrast to mandatory injunctive relief which would be disfavored and would require closer scrutiny to assure that the exigencies of the case supported the granting of an extraordinary remedy, in § 1983 action asserting violations of Free Exercise Clause and First Amendment right to peaceably assemble, relating to emergency order of Secretary of New Mexico Department of Health, issued during COVID-19 pandemic and removing exemption, for places of worship, from earlier order prohibiting mass gatherings of five or more people without social distancing; if TRO was granted, state would only have to refrain from enforcing the emergency order against churches and other places of worship, state would not be ordered to affirmatively act, and enforcement of the emergency order was a black-and-white issue that would not require legal review or continuous supervision. U.S. Const. Amend. 1; 42 U.S.C.A. § 1983; N.M. Stat. Ann. §§ 9-7-6(B) (5), 24-1-3(E).
[43] Injunction Factors Considered in General When evaluating whether the issuance of a requested injunction would alter the status quo between the parties, so that it is a disfavored injunction which a district court should more closely scrutinize to assure that the exigencies of the case support the granting of an extraordinary remedy, the court should look at the reality of the existing status and relationships between the parties, regardless of whether the existing status and relationships may ultimately be found to be in accord or not in accord with the parties' legal rights.
[44] Civil Rights Preliminary Injunction

Temporary restraining order (TRO) requested by church would not alter the status quo, as would be disfavored injunctive relief that would require closer scrutiny to assure that the exigencies of the case supported the granting of an extraordinary remedy, in § 1983 action asserting violations of Free Exercise Clause and First Amendment right to peaceably assemble, relating to emergency order of Secretary of New Mexico Department of Health, issued during COVID-19 pandemic and removing exemption, for places of worship, from earlier order prohibiting mass gatherings of five or more people without social distancing; the last peaceable uncontested status had existed when earlier order had exempted churches from prohibition of mass gatherings, and church's requested TRO would not alter that status. U.S. Const. Amend. 1; 42 U.S.C.A. § 1983; N.M. Stat. Ann. §§ 9-7-6(B)(5), 24-1-3(E).
[45] Civil Rights Preliminary Injunction
Temporary restraining order (TRO) requested by church would supply it with all the relief it could hope to win from a full trial, so that the TRO was disfavored injunctive relief that would require closer scrutiny to assure that the exigencies of the case supported the granting of an extraordinary remedy, in § 1983 action asserting violations of Free Exercise Clause and First Amendment right to peaceably assemble, relating to emergency order of Secretary of New Mexico Department of Health, issued during COVID-19 pandemic and removing exemption, for places of worship, from earlier order prohibiting mass gatherings of five or more people without social distancing; while complaint sought costs and reasonable attorney fees and expenses, those items were incidental to temporary and permanent injunctive relief. U.S. Const. Amend. 1; 42 U.S.C.A. § 1983; N.M. Stat. Ann. §§ 9-7-6(B)(5), 24-1-3(E).
[46] Civil Rights Preliminary Injunction
Church was not likely to succeed on merits, as factor against issuance of temporary restraining order (TRO), on its claim in § 1983 action that emergency order issued during COVID-19

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pandemic by Secretary of New Mexico Department of Health, removing exemption, for places of worship, from earlier order prohibiting mass gatherings of five or more people without social distancing, violated Free Exercise Clause; emergency order was subject to rational basis review because it was neutral and generally applicable and because there was no evidence of animus against Christianity in particular or against religion in general, emergency order served important government interests, and state's process for determining what businesses were essential did not involve state's subjective, case-by-case judgment of merits of religious activities. U.S. Const. Amend. 1.; 42 U.S.C.A. § 1983; N.M. Stat. Ann. §§ 9-7-6(B)(5), 24-1-3(E).

[47] Health State and local regulations States Police power When a state faces a major public health threat, its Tenth Amendment police powers and public health powers are at a maximum. U.S. Const. Amend. 10.
1 Cases that cite this headnote

[48] Constitutional Law Health Care The First Amendment right to practice religion freely does not include liberty to expose the community to communicable disease, ill health, or death. U.S. Const. Amend. 1.
1 Cases that cite this headnote

[49] Constitutional Law Religion

Free Exercise of

Under the Free Exercise Clause, the government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. U.S. Const. Amend. 1.

[50] Constitutional Law Religion

Free Exercise of

The Free Exercise Clause protects religious observers against unequal treatment, and impermissible inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation. U.S. Const. Amend. 1.

[51] Constitutional Law or ethnicity

Race, national origin,

Strict scrutiny for an equal protection violation applies when the government discriminates on the basis of race, and the court asks whether that discrimination is narrowly tailored. U.S. Const. Amend. 14.

[52] Civil Rights Preliminary Injunction
Even if strict scrutiny rather than rational basis review was applicable, church was not likely to succeed on merits, as factor against issuance of temporary restraining order (TRO), on its claim in § 1983 action that emergency order issued during COVID-19 pandemic by Secretary of New Mexico Department of Health, removing exemption, for places of worship, from earlier order prohibiting mass gatherings of five or more people without social distancing, violated Free Exercise Clause; emergency order was narrowly tailored to furthering state's compelling governmental interests under its Tenth Amendment police powers and public health powers, because religious organizations could broadcast their services to followers via the internet and over television. U.S. Const. Amends. 1, 10; 42 U.S.C.A. § 1983; N.M. Stat. Ann. §§ 9-7-6(B)(5), 24-1-3(E).

[53] Constitutional Law Religion

Establishment of

Under the Establishment Clause, the government may not pick and choose religious winners and religious losers. U.S. Const. Amend. 1.

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[54] Constitutional Law Religion

Free Exercise of

Fear of violating the Establishment Clause is not a compelling interest that justifies infringing Free Exercise Clause rights. U.S. Const. Amend. 1.

[55] Civil Rights Preliminary Injunction
Church was not likely to succeed on merits, as factor against issuance of temporary restraining order (TRO), on its claim in § 1983 action that emergency order issued during COVID-19 pandemic by Secretary of New Mexico Department of Health, removing exemption, for places of worship, from earlier order prohibiting mass gatherings of five or more people without social distancing, violated First Amendment right to peaceably assemble; under strict scrutiny, mitigating a state pandemic was a compelling interest, and emergency order was narrowly tailored, with sufficient alternatives for church to assemble, e.g., church could broadcast its services to followers via the internet and over television. U.S. Const. Amend. 1; 42 U.S.C.A. § 1983; N.M. Stat. Ann. §§ 9-7-6(B)(5), 24-1-3(E).

[56] Constitutional Law association

Expressive

Religious gatherings in which individuals come together for the purpose of engaging in religious activities are expressive association activities protected by the First Amendment. U.S. Const. Amend. 1.

[58] Injunction of remedy

Extraordinary or unusual nature

Injunction Irreparable injury

Injunction Clear showing or proof

The preliminary injunction standard requires plaintiffs to demonstrate that irreparable injury is likely in the absence of an injunction, and issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with the characterization of injunctive relief as an extraordinary remedy that may be awarded only upon a clear showing that the plaintiff is entitled to such relief.

[59] Civil Rights Preliminary Injunction
Church did not show likelihood of irreparable harm, as factor against issuance of temporary restraining order (TRO), in § 1983 action alleging that emergency order issued during COVID-19 pandemic by Secretary of New Mexico Department of Health, removing exemption, for places of worship, from earlier order prohibiting mass gatherings of five or more people without social distancing, violated Free Exercise Clause and First Amendment right to peaceably assemble; while the harms alleged by church were incapable of calculation and were not redressable with money damages, church did not show likelihood of success on merits, and without a constitutional violation to point to, church had not presented a likelihood of actual or significant injury in absence of TRO. U.S. Const. Amend. 1; 42 U.S.C.A. § 1983; N.M. Stat. Ann. §§ 9-7-6(B)(5), 24-1-3(E).

[57] Constitutional Law association

Expressive

The First Amendment right to expressive association is not an absolute right, and it can be infringed upon if that infringement is: (1) unrelated to the suppression of expressive association; (2) due to a compelling government interest; and (3) narrowly tailored. U.S. Const. Amend. 1.

[60] Injunction Effect

Injury, Hardship, Harm, or

To show that the balance of equities tips in the movant's favor, as factor for determining whether to issue a temporary restraining order (TRO), the movant must show that the threatened injury to the movant outweighs any injury to non-movants caused by granting the TRO.

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[61] Civil Rights Preliminary Injunction
Church did not show that balance of equities, as factor for determining whether to issue a temporary restraining order (TRO), weighed in its favor, in § 1983 action alleging that emergency order issued during COVID-19 pandemic by Secretary of New Mexico Department of Health, removing exemption, for places of worship, from earlier order prohibiting mass gatherings of five or more people without social distancing, violated Free Exercise Clause and First Amendment right to peaceably assemble; church framed the harms it would suffer exclusively in terms of the alleged constitutional violations, but church was not likely to succeed on merits of its constitutional claims, while state's alleged harms from potential escalation of COVID-19 cases were not insignificant. U.S. Const. Amend. 1; 42 U.S.C.A. § 1983; N.M. Stat. Ann. §§ 9-7-6(B) (5), 24-1-3(E).

The public interest factor for determining whether to issue a temporary restraining order (TRO) is another way of inquiring whether there are policy considerations that bear on whether the TRO should issue.
[64] Injunction Entitlement to relief;  likelihood of success Injunction Public interest considerations In evaluating the public's interest, as factor for determining whether to issue a temporary restraining order (TRO), a court must consider whether the movant has demonstrated a likelihood of success on the merits.
[65] Civil Rights Preliminary Injunction Injunction Public interest considerations Where a movant has demonstrated that the nonmovant has violated the law or constitutional rights, the public interest weighs in favor of granting a temporary restraining order (TRO).

[62] Civil Rights Preliminary Injunction Public interest was factor weighing against issuing the temporary restraining order (TRO) requested by church, in § 1983 action alleging that emergency order issued during COVID-19 pandemic by Secretary of New Mexico Department of Health, removing exemption, for places of worship, from earlier order prohibiting mass gatherings of five or more people without social distancing, violated Free Exercise Clause and First Amendment right to peaceably assemble; church relied on vindicating its constitutional rights as the interest at stake but church did not demonstrate a likelihood of success on the merits, and public's compelling interest in limiting the COVID-19 outbreak in the state outweighed the right to gather. U.S. Const. Amend. 1; 42 U.S.C.A. § 1983; N.M. Stat. Ann. §§ 9-7-6(B)(5), 24-1-3(E).
[63] Injunction Public interest considerations

Attorneys and Law Firms
Colin Hunter, Jordy Stern, The Barnett Law Firm, P.A., Albuquerque, New Mexico, Attorneys for the Plaintiff
Nicholas M. Sydow, Civil Appellate Chief, Office of the New Mexico Attorney General, Albuquerque, New Mexico, Attorneys for Defendant State of New Mexico
Matthew L. Garcia, Chief General Counsel to Governor Michelle Lujan Grisham, Jonathan J. Guss, Deputy General Counsel to Governor Michelle Lujan Grisham, Santa Fe, New Mexico, Attorneys for Defendant Kathyleen Kunkel
A. Blair Dunn, Western Agricultural Resource and Business Advocates, LLP, Albuquerque, New Mexico --and-- Mark L. Rienzi, William J. Haun, Peter M. Torstensen, Jr., The Becket Fund for Religious Liberty, Washington, D.C., Counsel for Amicus Curiae

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MEMORANDUM ORDER AND OPINION
James O. Browning, United States District Judge
*1 THIS MATTER comes before the Court on the Motion for Temporary Restraining Order, filed April 14, 2020 (Doc. 8)(“Motion”). The Court held hearings on April 13 and 16, 2020. The primary issues are: (i) whether Plaintiff Legacy Church, Inc. (“Legacy Church”) is likely to succeed on the merits in demonstrating that Defendant Kathyleen M. Kunkel's Public Health Emergency Order (4-11-20-PHO) (“Order”), which restricts places of worship from gathering more than five people within a single room or connected space, violates Plaintiff Legacy Church's rights under the Free Exercise Clause of the First Amendment to the Constitution of the United States of America; and (ii) whether Legacy Church is slikely to succeed on the merits in demonstrating that the Order violates Legacy Church's rights to peaceably assemble under the First Amendment. The Court concludes that: (i) the Order does not violate Legacy Church's First Amendment religious freedom rights, because the Order is neutral and generally applicable; and (ii) the Order is a reasonable time, place, and manner restriction, and so does not violate Legacy Church's First Amendment rights to assemble. Accordingly, the Court denies the Motion.

of Carpenters and Joiners of Am., Local Union No. 1505, 252 F. Supp. 3d 1132, 1140 (D.N.M. 2017)(Browning, J.). The United States Court of Appeals for the Tenth Circuit notes “that when a district court holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, “[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. S. Salt Lake City, 348 F.3d at 1188. Accordingly, the Court finds as follows:
1. Legacy Church is a Christian church that provides church services at three locations in Bernalillo County and at one location in Santa Fe County. See Plaintiff's Original Complaint, Request for Temporary Restraining Order, and Permanent Injunction ¶ 1, at 1, filed April 11, 2020 (Doc. 1)(“Complaint”); Locations/Times, Legacy Church, https:// www.legacychurchnm.com/locations/times (last visited April 15, 2020).
*2 2. Legacy Church is a “mega church” with nearly 20,000 church members. Legacy Church Profile, USA Churches, http://www.usachurches.org/church/legacy-church.htm (last visited April 14, 2020). See Coronavirus updates, April 14, Albuquerque J., https://www.abqjournal.com/1443415/ coronavirus-updates-april-14.html (last visited April 14, 2020).

3. Legacy Church offers one to three church services each

FINDINGS OF FACT

Sunday at its two locations in Albuquerque, New Mexico;

at its one location in Rio Rancho, New Mexico; and at its [1] [2] “A temporary restraining order requires the Court to one location in Edgewood, New Mexico. See Locations/ make predictions about the plaintiff's likelihood of success.” Times, Legacy Church, https://www.legacychurchnm.com/ Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d 1174, locations/times (last visited April 15, 2020). 1179 (D.N.M. 2011)(Browning, J.). Rule 52 of the Federal

Rules of Civil Procedure states: “In granting or refusing an interlocutory injunction, the court must [ ] state the findings and conclusions that support its action.” Fed. R. Civ. P. 52(a) (2). “ ‘[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.’ ” Herrera v. Santa Fe Pub. Sch.,

4. Legacy Church's location at 7201 Central Ave. NW, Albuquerque, New Mexico 87121 (“Central Campus”) has an auditorium that is 31,000 square feet and that holds over 2,500 people. Declaration of Steve Smothermon ¶¶ 5, 7, at 1, filed April 14, 2020 (Doc. 15)(“Smothermon Decl.”). 1

792 F. Supp. 2d at 1179 (quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)) (alteration in Herrera v. Santa Fe Public Schools only). See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)(“[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.”); Firebird Structures, LCC v. United Bhd.

5. Legacy Church's three Sunday services at the Central Campus are aired on broadcast television and livestreamed on Legacy Church's website. See Smothermon Decl. ¶ 7, at 1; T.V. Broadcast, Legacy Church, https://www.legacychurchnm.com/tvbroadcast (last visited April 14, 2020); Live Stream, Legacy Church, https:// www.legacychurchnm.com/livestream (last visited April 15, 2020).

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6. Legacy Church's location at 4701 Wyoming Blvd., Albuquerque, New Mexico 87109 (“East Campus”) has an auditorium that is approximately 21,000 square feet. Smothermon Decl. ¶ 11, at 2.
7. Legacy Church's Central Campus also holds a church service on Wednesday nights, and the East Campus holds church services on Tuesday and Saturday nights. See Smothermon Decl. ¶¶ 5-6, at 1.

14. Approximately eighty percent of people who are infected with the coronavirus experience mild symptoms, but about twenty percent of people suffer more severe symptoms. See Answers To Your Coronavirus Questions at 40, The New York Times, https://static01.nyt.com/files/2020/ebooks/coronavirus-questions/nyt-coronavirus-answers.pdf (last visited April 15, 2020)(“NYT Answers”).
*3 15. On January 11, 2020, China reported its first death caused by the coronavirus. See NYT Answers at 6-7.

8. In 2006, Legacy Church established the Legacy Academy, which is a school serving preschool through high school students. See Our Story, Legacy Church, https:// www.legacychurchnm.com/our-story (last visited April 15, 2020).
9. Kathyleen M. Kunkel is the Secretary for the New Mexico Department of Health (“Secretary Kunkel”). Complaint ¶ 2, at 1. See Office of the Secretary, New Mexico Department of Health, https://nmhealth.org/about/asd/ots/ (last visited April 14, 2020).

16. In Wuhan, China, of the people who have been infected with coronavirus, the death rate is about two percent. See NYT Answers at 32.
17. On January 20, 2020, the United States Centers for Disease Control and Prevention (“CDC”) reported the United States' first case of coronavirus in the State of Washington. First Case of 2019 Novel Coronavirus in the United States, The New England Journal of Medicine (January 31, 2020), https://www.nejm.org/doi/full/10.1056/ NEJMoa2001191 (last visited April 15, 2020).

10. Michelle Lujan Grisham is the Governor of the State of New Mexico. See About the Governor, Office of the Governor, https://www.governor.state.nm.us/ (last visited April 15, 2020).
11. In early January, 2020, Wuhan, China experienced an outbreak of the coronavirus disease 2019, also known as COVID-19, which is caused by the severe acute respiratory syndrome coronavirus 2, also known as SARSCoV-2. See Coronavirus disease 2019 (COVID-19), Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/ coronavirus/symptoms-causes/syc-20479963 (last visited April 15, 2020)(“Mayo Clinic”).
12. The coronavirus is a contagious disease that is spread through respiratory droplets that are released when infected individuals cough, sneeze, or talk. See Mayo Clinic.
13. Symptoms of the coronavirus include fever, coughing, and shortness of breath. See Symptoms of Coronavirus, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/symptoms-testing/symptoms.html (last visited April 15, 2020).

18. Throughout late January, 2020, and February, 2020, the coronavirus spread to countries throughout Asia, Europe, Africa, and Latin America.
19. On February 29, 2020, the United States reported its first death caused by the coronavirus near Seattle, Washington. See Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, The New York Times (April 14, 2020), https://www.nytimes.com/article/coronavirustimeline.html (last visited April 15, 2020)(“NYT Timeline”).
20. On March 11, 2020, the New Mexico Department of Health reported the first case in which a New Mexico resident tested positive for the coronavirus. See New Mexico Announces First Presumptive Positive COVID-19 Cases, New Mexico Department of Health (March 11, 2020), https://cv.nmhealth.org/2020/03/11/new-mexicoannounces-first-presumptive-positive-covid-19-cases/ (last visited April 15, 2020).
21. On March 11, 2020, Governor Lujan Grisham and the New Mexico Department of Health declared a state of emergency “to maximize the resources available to the state in order to fight the potential spread of the virus and minimize public health risks for New Mexicans.” Updated: Governor, Department of

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Health announce first positive COVID-19 cases in New Mexico, Press Releases, Office of the Governor (March 11, 2020), https://www.governor.state.nm.us/2020/03/11/ updated-governor-department-of-health-announce-firstpositive-covid-19-cases-in-new-mexico/ (last visited April 15, 2020)(“Emergency Declaration”).
22. Throughout March, 2020, Governor Lujan Grisham urged New Mexico residents to avoid public gatherings, avoid non-essential travel, and engage in social distancing. See Emergency Declaration; Marjorie Childress, Celia Raney, and Trip Jennings, Officials predict dire consequences if state doesn't practice social distancing, New Mexico In Depth (March 31, 2020), http://nmindepth.com/2020/03/31/officials-predictdire-consequences-if-state-doesnt-practice-social-distancing/ (last visited April 15, 2020).
23. Social distancing “refers to measures that are taken to increase the physical space between people to slow the spread of the virus.” NYT Answers at 18.
24. On March 11, 2020, “the World Health Organization declared the coronavirus outbreak a pandemic after it spread across six continents and more than 100 countries.” NYT Answers at 15.
25. On March 13, 2020, President Donald J. Trump declared that the coronavirus outbreak in the United States constitutes a national emergency. See Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (March 13, 2020), White House, https://www.whitehouse.gov/presidential-actions/ proclamation-declaring-national-emergency-concerningnovel-coronavirus-disease-covid-19-outbreak/ (last visited April 15, 2020).
*4 26. As of March 13, 2020, 1,896 people in the United States had been infected with the coronavirus. See Cases in U.S., Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-in-us.html (last visited April 17, 2020)(“U.S. Statistics”).
27. In the United States, of the people who are infected with coronavirus, the death rate is about 4.1 percent. See Aylin Woodward and Shayanne Gal, The US is the hardest-hit country in the coronavirus pandemic -- but its 4% death rate is far lower than that

of many other countries, Business Insider (April 14, 2020), https://www.businessinsider.com/coronavirus-deathrate-in-us-uk-italy-china-compared-2020-4 (last visited April 15, 2020).
28. On March 18, 2020, Legacy Church posted a message on its website telling its members “that the church was making its services available online, encouraging those who were traveling, not feeling well, or felt more comfortable at home, to continue worshipping online.” Smothermon Decl. ¶ 14, at 2. See Coronavirus (COVID-19) Updates, Legacy Church (March 18, 2020), https://www.legacychurchnm.com/coronavirus (last visited April 15, 2020).
29. The Muslim holiday Lailat Al Miraj occurred on March 22, 2020. See Faith Communities of Victoria, http://www.faithvictoria.org.au/component/ rseventspro/event/1430-lailat-al-miraj-islam (last visited April 17, 2020).
30. On March 24, 2020, Secretary Kunkel issued the Public Health Order, New Mexico Department of Health (March 23, 2020), https://www.governor.state.nm.us/wp-content/ uploads/2020/03/COVID-19-DOH-Order-fv.pdf (last visited April 15, 2020)(“March 24 Order”), which ordered all nonessential businesses to close, ordered all of the state's nonessential workforce to work from home, and ordered New Mexico citizens to “stay at home and undertake only those outings absolutely necessary for their health, safety, or welfare.” March 24 Order at 5.
31. The March 24 Order prohibits all “mass gatherings,” which it defines as
any public or private gathering that brings together five (5) or more individuals in a single room or connected space, confined outdoor space or an open outdoor space where individuals are within six (6) feet of each other, but does not include the presence of five (5) or more individuals where those individuals regularly reside.
March 24 Order ¶ 6, at 4. See March 24 Order ¶ 1, at 4.

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32. The March 24 Order's prohibition of mass gatherings does not apply to “ ‘individuals’ congregated in a church, synagogue, mosque, or other place of worship.” March 24 Order ¶ 6, at 4.
33. The March 24 Order allows essential businesses to remain open. See March 24 Order ¶ 2, at 4.
34. The March 24 Order provides twenty-two categories of essential businesses, which are businesses that provide goods and services “related to health, safety and wellbeing, such as medical facilities, child care centers and any business that assists in the production, distribution or sale of food and medical products.” Tony Raap, Bike shops riding out virus storm, Santa Fe New Mexican (April 5, 2020), https://www.santafenewmexican.com/news/ adventure/bike-shops-riding-out-virus-storm/ article_f5c5b7b8-75d1-11ea-9fba-87f099306b93.html (last visited April 15, 2020)(“Bike Article”); March 24 Order at 2-4.
35. The March 24 Order initially required bike repair shops to close, but after conversations with bike repair shop owners and Allen Webber, the Mayor of Santa Fe, Governor Lujan Grisham decided to allow bike repair shops to remain open for business. See Bike Article.
*5 36. On March 25, 2020, the New Mexico Department of Health announced New Mexico's first death that coronavirus caused. See New Mexico COVID-19 update: One death, New Mexico Department of Health (March 25, 2020), https://cv.nmhealth.org/2020/03/25/new-mexicocovid-19-update-one-death/ (last visited April 15, 2020).
37. On March 27, 2020, Governor Lujan Grisham ordered individuals traveling to New Mexico through an airport to self-quarantine for a period of at least fourteen days. See Executive Order 2020-013, Executive Orders, Office of the Governor (March 27, 2020), https://www.governor.state.nm.us/wp-content/ uploads/2020/03/MLG_EO_2020_013.pdf (last visited April 15, 2020).
38. Self-quarantine “refers to the separation and restriction of movement of people who were exposed to the virus to see if they become sick.” NYT Answers at 18.

39. On Palm Sunday, April 5, 2020, over 13,000 people viewed Legacy Church's live-streaming of its church services. See Complaint ¶ 19, at 3.
40. On April 6, 2020, Secretary Kunkel issued the Public Health Order, New Mexico Department of Health (April 6, 2020), https://cv.nmhealth.org/wp-content/uploads/2020/04/ PHO-4-6-2020.pdf (last visited April 14, 2020)(“April 6 Order”). 2 See Complaint ¶ 6, at 2.
41. The April 6 Order states: “All Mass Gatherings are hereby prohibited under the powers and authority set forth in the New Mexico Public Health Act, [N.M. Stat. Ann. §§ 24-1-1 to -40] and all regulations promulgated pursuant thereto.” April 6 Order ¶ 1, at 5.
42. The April 6 Order defines mass gatherings as
any public or private gathering that brings together five (5) or more individuals in a single room or connected space, confined outdoor space or an open outdoor space where individuals are within six (6) feet of each other, but does not include the presence of five (5) or more individuals where those individuals regularly reside.
April 6 Order ¶ 6, at 5.
43. The April 6 Order's prohibition of mass gatherings does not apply to “individuals congregated in a church, synagogue, mosque, or other place of worship.” April 6 Order ¶ 6, at 5. See Complaint ¶ 6, at 2.
44. As of April 6, 2020, 686 New Mexico residents had tested positive for COVID-19, and twelve New Mexico resident had died from COVID-19. See Coronavirus updates, April 6, Albuquerque J., https://www.abqjournal.com/1440588/ coronavirus-updates-april-6.html (last visited April 15, 2020).
45. On April 7, 2020, Governor Lujan Grisham and the New Mexico Department of Health noted that Passover, Holy Week, and Ramadan were quickly approaching, and offered the following guidance for faith-based communities:

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Livestream your service and make sure members understand they should not attend in person. Viewers can send a comment via the online/livestream platform or an email or text to let you know they were watching. This also may involve permission or guidance about the use of electronic devices at times when that practice is usually not permitted, such as Jewish Sabbath.

Consider a “drive-in” service so people can participate separately, yet together. Attendees can drive up in their cars, park and watch the video service on their cellphones or on a giant screen while listening via a radio station.

Governor, Department of Health answer

questions from faith-based communities, New

Mexico

Department

of

Health

(April

7, 2020), https://cv.nmhealth.org/2020/04/07/governor-

department-of-health-answer-questions-from-faith-based-

communities/ (last visited April 15, 2020).

*6 46. The New Mexico Department of Health reports the total number of coronavirus cases and coronavirus-caused deaths in New Mexico over time:

New recorded COVID-19 cases in NM by day, Albuquerque J., Albuquerque J., https://www.abqjournal.com/coronavirus (last visited April 17, 2020)(“N.M. Daily Increase Chart”). 48. On April 7, 2020, the New Mexico Department of Health reported that 108 New Mexico residents had tested positive for coronavirus, which was New Mexico's largest daily increase in coronavirus cases at that time. See N.M. Daily Increase Chart.
49. Passover, one of the most important festivals in Judaism, began the evening of Wednesday, April 8, 2020, and ended the evening of Thursday, April 16, 2020. See What is Passover (Pesach)?, Chabad, https://www.chabad.org/holidays/ passover/pesach_cdo/aid/871715/jewish/What-Is-PassoverPesach.htm (last visited April 15, 2020).

50. On April 9, 2020, the New Mexico Department of Health reported that 121 New Mexico residents had tested positive for coronavirus, which was New Mexico's largest daily increase in coronavirus cases at that time. See N.M. Daily Increase Chart.

Total reported COVID-19 cases in NM over time, Albuquerque J., https://www.abqjournal.com/coronavirus (last visited April 15, 2020)(“N.M. Daily Totals Chart”). 47. The New Mexico Department of Health reports the number of New Mexico residents who test positive for coronavirus and who die from coronavirus each day:

51. On Holy Saturday, April 11, 2020, at around 5:00 p.m. Mountain Standard Time, Secretary Kunkel issued the Public Health Order, New Mexico Department of Health (April 11, 2020), https://cv.nmhealth.org/wp-content/ uploads/2020/04/04_11_20_PHO_Amended.pdf (last visited April 14, 2020)(“April 11 Order”). 3 See Complaint ¶ 7, at 2.
52. On April 11, 2020, at 5:15 p.m. Mountain Standard Time, Governor Lujan Grisham announced on her Twitter page that, pursuant to the April 11 Order, houses of worship would no longer be exempt from New Mexico's prohibition of mass gatherings. See Michelle Lujan Grisham

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(@GovMLG), Twitter (April 11, 2020, 5:15 PM), https:// store or a hardware store[ ].” April 11 Order ¶ 1, at 3 (internal

twitter.com/GovMLG/status/1249113771076767744.

quotation marks omitted).

53. As of April 11, 2020, 1,174 New Mexico residents had tested positive for COVID-19, and twenty New Mexico residents had died from COVID-19. See Coronavirus updates, April 11, Albuquerque J., https://www.abqjournal.com/1442624/ coronavirus-updates-april-11.html (last visited April 15, 2020).
54. The April 11 Order prohibits mass gatherings of five or more individuals, but it does not include an exception for individuals gathering at houses of worship. See April 11 Order ¶ 6, at 5; Complaint ¶ 8, at 2.
55. The April 11 Order defines mass gatherings as

59. The New Mexico Department of Health's public health orders have never classified houses of worship as essential businesses, because they do not sell goods or services. See April 16 Tr. at 25:13-17 (Garcia).
60. Until the April 11 Order, every public health order by the New Mexico Department of Health exempted houses of worship from the mass gathering restrictions that previous public health orders imposed on non-essential businesses. See April 16 Tr. at 25:10-26:10 (Court, Garcia).
61. The April 11 Order does not exempt or permit gatherings at large venues that are similar in size to many houses of worship, such as theaters, concert halls, and stadiums. See Kunkel Response at 16; April 11 Order ¶ 6, at 5.

any public or private gathering that brings together five (5) or more individuals in a single room or connected space, confined outdoor space or an open outdoor space where individuals are within six (6) feet of each other, but does not include the presence of five (5) or more individuals where those individuals regularly reside.
*7 April 11 Order ¶ 6, at 5.
56. The April 11 Order states: “Churches, synagogues, mosques, and all other houses of worship shall adhere to this restriction, but nothing in this order is intended to preclude these faith-based institutions from holding services through audiovisual means.” April 11 Order ¶ 1, at 5.
57. The April 11 Order states: “The maximum number of customers allowed in a retail space at any given time shall be equal to 20% of the maximum occupancy of the retail space, as determined by the relevant fire marshal or fire department.” April 11 Order ¶ 4, at 6. See Complaint ¶ 16, at 3 (internal quotation marks omitted).
58. The April 11 Order defines “retail space” as an “essential business that sells goods and services directly to consumers or end-users inside its place of business, such as a grocery

62. Around April 11, 2020, Governor Lujan Grisham told reporters that “many houses of worship already took action on their own” by cancelling in-person services, but “there have been a few outliers, putting New Mexicans at risk. We were hearing additional ones planning on holding services (Sunday) ... and we wanted to be crystal clear.” Coronavirus updates, April 11 (ellipsis in original).
63. Approximately seventy-five percent of New Mexico residents identify as Christian of any denomination, approximately one percent of New Mexico residents identify as Buddhist, less than one percent of New Mexico residents identify as Jewish, less than one percent of New Mexico residents identify as Muslim, less than one percent of New Mexico residents identify as Hindu, and approximately twenty-one percent of New Mexico residents identify as religiously unaffiliated. See Adults in New Mexico, Pew Research Center, https://www.pewforum.org/religiouslandscape-study/state/new-mexico/ (last visited April 15, 2020)(“Pew Survey”).
64. Approximately thirty-six percent of New Mexico residents attend religious services at least once a week, thirtyone percent of New Mexico residents attend religious services once or twice a month or a few times a year, and thirtythree percent of New Mexico residents seldom or never attend religious services. See Pew Survey.
65. On April 12, 2020, Legacy Church live-streamed three Easter services online, but it did not prohibit parishioners

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from attending services in person. See Complaint ¶¶ 9-11, at 2; Draft Transcript of Proceedings at 6:18-22, taken April 13, 2020 (Stern)(“April 13 Tr.”). 4
*8 66. In addition to Legacy Church's staff members, fewer than forty parishioners attended the first Easter service, approximately ten parishioners attended the second Easter service, and approximately seven parishioners attended the third Easter service. See Smothermon Decl. ¶ 15, at 2; April 13 Tr. at 7:13-18 (Stern).
67. Legacy Church plans to continue live-streaming church services online. See Complaint ¶ 12, at 2.
68. Legacy Church plans to hold church services consisting of approximately thirty staff members. See Complaint ¶¶ 12-14, 17, at 2-3; April 13 Tr. at 8:20-9:5 (Stern); Smothermon Decl. ¶ 10, at 2.

Mass celebrations, and he issued guidelines to priests to limit the number of congregants in church buildings to five people and to ensure that congregants engage in social distancing in compliance with the April 11 Order. See Ed Condon, Las Cruces bishop first in US to resume public Masses amid pandemic, Angelus (April 15, 2020), https://angelusnews.com/news/nation/lascruces-resumes-public-masses-amid-pandemic/ (last visited April 17, 2020)(“Las Cruces Resumes Public Masses Article”); Daniel Burke, A Catholic diocese is reopening for Mass despite a statewide stay-at-home order, CNN (April 16, 2020), https://www.cnn.com/2020/04/16/us/lascruces-diocese-mass-open/index.html (last visited April 17, 2020).
76. On April 16, 2020, eight New Mexicans died from the coronavirus, which was the highest daily increase in number of deaths as of that time. See N.M. Daily Increase Chart.

69. The worship team members, band members, the pastor, and an assistant total about twelve to fourteen people, and the technical staff members total about sixteen people. See Complaint ¶¶ 12, 14, at 2-3.
70. Legacy Church's Tuesday night services at require about thirty staff members to conduct. See Smothermon Decl. ¶ 10, at 2.
71. Legacy Church “has a sincerely held religious belief that the service team used four [its] services is central to how [it and its members] worship God and how [they] connect [their] members to [their] religious belief.” Smothermon Decl. ¶ 12, at 2.
72. Legacy Church is willing to prohibit parishioners from attending church services in person. See April 13 Tr. at 8:15-18 (Stern).
73. Legacy Church is also capable of “abiding by the same guidelines for essential businesses” that Secretary Kunkel announced in the April 11 Order. Smothermon Decl. ¶ 16, at 2.
74. Legacy Church plans to perform and record its church services in an auditorium that is approximately 31,000 square feet and that can accommodate 2,500 to 3,000 people. See Complaint ¶ 16, at 3; April 13 Tr. at 7:18-21 (Stern).
75. On April 15, 2020, the Catholic Bishop of Las Cruces, New Mexico, lifted a diocesan ban on Catholic

77. As of April 16, 2020, about 632,548 people in the United States and 1,597 New Mexican residents had been infected with coronavirus, and about 31,071 Americans and fortyfour New Mexican residents had died from coronavirus. See U.S. Statistics; N.M. Daily Totals Chart. Ramadan, one of the most important months of the Islamic calendar, will begin the evening of April 23, 2020, and will end the evening of May 23, 2020. See Ramadan 2020, https://www.calendardate.com/ ramadan_2020.htm (last visited April 15, 2020).
PROCEDURAL BACKGROUND
1. On Saturday, April 11, 2020, at 11:16 p.m. Mountain Standard Time, Legacy Church filed the Complaint. See Complaint at 1. In the Complaint, Legacy Church alleges claims for: (i) violation of the Free Exercise Clause of the First Amendment to the Constitution of the United States of America; and (ii) violation of the Freedom of Assembly Clause of the First Amendment. See Complaint ¶¶ 21-36, at 3-6. Legacy Church requests that the Court temporarily and permanently enjoin Kunkel and New Mexico from prohibiting Legacy Church “from physically gathering in its house of worship.” Complaint ¶ c., at 6.
1. The Monday, April 13, 2020, Conference. *9 2. The Court held a scheduling conference on Monday, April 13, 2020. See April 13 Tr. at 1. The Court began by noting that Legacy Church is seeking to broadcast and live-

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stream its church services without opening its church services to the public. See April 13 Tr. at 3:1-3 (Court). The Court acknowledged that Legacy Church's church services would require “more than [ ] five” people, “but [ ] not two or three thousand” people to gather in one location. April 13 Tr. at 3:4-5 (Court). The Court suggested that the parties could “sit down and see if they could reach some accommodation and if that would resolve things.” April 13 Tr. at 3:16-17 (Court). Legacy Church said that “there is a potential for compromise,” and it told the Court that it would like a ruling on its request for a temporary restraining order by 3:00 p.m. on Friday, April 17, 2020. April 13 Tr. at 5:18-19 (Stern). See id. at 5:21-22 (Stern); id. at 6:1-2 (Stern).
3. Legacy Church contended that “the essential facts that will dictate the legal decision are really not in dispute.” April 13 Tr. at 6:25-7:1 (Stern). Legacy Church said that their “request is to have the sufficient team available at the church” to organize church services. April 13 Tr. at 6:14-15 (Stern). Legacy Church argued that it takes more than five people to organize a church service in person, which the April 11 Order prohibits. See April 13 Tr. at 7:2-4 (Stern). Legacy Church also said that it allowed parishioners to attend its three Easter services. See April 13 Tr. at 7:6-8 (Stern). According to Legacy Church, about forty to one-hundred people attended the first Easter service, and about ten people attended the second service. See April 13 Tr. at 7:13-8:5 (Stern). Legacy Church was unsure how many people attended the third service and guessed that a “trickle” of people attended. April 13 Tr. at 8:9 (Stern). Legacy Church also noted that the building where church services would occur is 31,000 square feet and can hold between 2,500 and 3,000 people. See April 13 Tr. at 7:18-21 (Stern). Legacy Church added that it is willing “to turn parishioners away” and direct them to view church services online. April 13 Tr. at 8:17-18 (Stern). Legacy Church said that about thirty people -- including technical staff and the worship music team -- are necessary for producing a church service and live-streaming it online. See April 13 Tr. at 8:20-9:5 (Stern).
4. Secretary Kunkel said that the Department of Health is “agreeable” to allowing Legacy Church to have more than five people in the building where its church services occur. April 13 Tr. at 13:14 (Garcia). Secretary Kunkel noted that the April 11 Order “says something to the effect of nothing in this restriction is intended to preclude religious institutions from putting on services through audio or audio visual means.” April 13 Tr. at 13:10-13 (Garcia). The Court asked Secretary Kunkel if she could “live with a hard cap” of “no more than

30 in [the church] building to put on their production.” April 13 Tr. at 13:25-14:2 (Court). Secretary Kunkel responded that the Department of Health likely could live with the hard cap as long as “that number were limited to folks who were actually putting on the service.” April 13 Tr. at 14:12-13 (Garcia). Secretary Kunkel argued that the “only concern” is with “people coming in from different parts of the city or even the state to attend services.” April 13 Tr. at 14:9-12 (Garcia). New Mexico then argued that its “position really is limited to the fact that we believe that the secretary's authority to issue public health orders like the one here is within her constitutional powers and her powers under state law.” April 13 Tr. at 15:22-25 (Sydow). New Mexico also asserted that it is not a proper defendant and that “there are some jurisdictional obstacles to the claims against the state.” April 13 Tr. at 16:2-4 (Sydow). Last, the parties agreed to hold a hearing on Thursday, April 16, 2020, see April 13 Tr. at 17:7-9 (Court), and the Court set the end of the business day on Tuesday, April 14, 2020, as the deadline for Legacy Church to file a motion in support of its request for a temporary restraining order, see April 13 Tr. at 18:4-16 (Court, Stern, Sydow).
2. The Motion. *10 5. On April 14, 2020, Legacy Church filed the Motion, which requests that the Court grant a temporary restraining order so that Legacy Church “can freely exercise its religion, by conducting services in accordance with its sincerely held religious beliefs.” Motion at 3. Legacy Church argues that it will suffer irreparable harm if the Court does not grant a temporary restraining order. See Motion at 4. Legacy Church asserts that it is substantially likely to succeed on the merits of its Free Exercise claim and Freedom of Assembly claim. See Motion at 5. With respect to its Free Exercise claim, Legacy Church argues that “ ‘a law burdening religious practice [that] is not neutral or not of general application must undergo the most rigorous of scrutiny.’ ” Motion at 6 (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)(“Lukumi”)). According to Legacy Church, the April 11 Order “restricts houses of worship from a gathering of more than four people within a single room or connected space, regardless of the size of that space or distancing taking place within the house of worship, significantly burdening Legacy's exercise of religion.” Motion at 6. Legacy Church argues that the April 11 Order “specifically targets houses of worship,” because the April 11 Order does not prohibit groups of five or more people from gathering at retail stores, funeral homes, media outlets, and other essential businesses.

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Motion at 6. Legacy Church notes, for example, that the April 11 Order allows retail stores to accommodate more than four shoppers “so long as they maintain a distance of six feet from one another” while shopping. Motion at 6. Legacy Church asserts that the distinction between how the April 11 Order treats gatherings at essential businesses and how it treats gatherings at houses of worship shows that the New Mexico Department of Health and New Mexico can further the state's public health interests through less restrictive means. See Motion at 6.
6. Legacy Church argues that Secretary Kunkel's decision to prohibit religious services on the evening before Easter is “facially discriminatory and not neutral.” Motion at 7. According to Legacy Church, government actions that “burden religious practice and are either not neutral or not generally applicable must satisfy a compelling governmental interest and be narrowly tailored to achieve that end.” Motion at 7 (citing Lukumi, 508 U.S. at 546, 113 S.Ct. 2217). Legacy Church does not dispute that preventing the spread of coronavirus is a compelling governmental interest. See Motion at 7. Legacy Church asserts, however, that the state “undermines its interest and exceeds its constitutionally permissible powers when the state withholds allowances to a religious group following its belief, while bestowing those allowances to others, but there is no pandemic exception to fundamental liberties of the Constitution.” Motion at 7 (citing Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151 (10th Cir. 2015)).
7. Legacy Church argues that the April 11 Order's prohibition of mass gatherings is not narrowly tailored, because “it fails to afford the same narrowly tailored restrictions to Legacy as it does essential businesses, both retail and nonretail.” Motion at 8. Legacy Church contends that the state can achieve its public health interests by less restrictive means, because Legacy Church's thirty-member staff can perform and live-stream church services while “comply[ing] with social distancing guidelines promulgated for essential businesses” Motion at 8. Legacy Church also notes that it can “comply with the distancing measures to accommodate those few Legacy members who may show up to be physically present at the service.” Motion at 8. Legacy Church asserts that the April 11 Order prohibits mass gatherings for some organizations while “exempting a litany of others,” and, therefore, the April 11 Order is not generally applicable or narrowly tailored to achieve the state's public health interests. Motion at 8.

8. Legacy Church also argues that the April 11 Order burdens its freedom of assembly. See Motion at 8. Legacy Church asserts that freedom of assembly is a “ ‘fundamental right[ ].’ ” Motion at 9 (quoting Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed. 1095 (1927)(Brandeis, J., concurring)). According to Legacy Church, “[w]hen a government practice restricts fundamental rights, it is subject to strict scrutiny and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available.” Motion at 9 (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)). Legacy Church reiterates that the April 11 Order is not narrowly tailored to achieve the state's compelling interests, and thus the April 11 Order violates its freedom of assembly. See Motion at 9.
*11 9. Legacy Church next argues that it will suffer irreparable harm if the Court denies injunctive relief. See Motion at 9. According to Legacy Church, “ ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Motion at 9 (quoting Heideman v. S. Salt Lake City, 348 F.3d at 1188 (quoting Elrod v. Burns, 427 U.S. 347, 376, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)), and citing Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d 1061, 1076 (10th Cir. 2001); Homans v. City of Albuquerque, 264 F.3d 1240, 1243 & n.2 (10th Cir. 2001); Am. Civil Liberties Union v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999); Cmty. Commc'ns Co. v. City of Boulder, 660 F.2d 1370, 1380 (10th Cir. 1080))(emphasis in Motion but not in Heideman v. S. Salt Lake City). Legacy Church contends that the April 11 Order's burdening and chilling of its First Amendment rights establishes that “irreparable injury has occurred and will continue to occur until an injunction issues.” Motion at 9-10 (citing Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d at 1076; Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001)). Legacy Church argues that, if the Court does not issue a temporary restraining order, then it will continue to suffer irreparable harm, because the April 11 Order “prohibit[s] Legacy from carrying out its religious mission in accordance with the manner dictated by their strictly held religious belief.” Motion at 10.
10. Legacy Church asserts that the “balance of harms tips” in its favor. Motion at 10. According to Legacy Church, “ ‘the [government's] potential harm must be weighed against [plaintiffs'] actual First Amendment injury.’ ” Motion at 10

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(quoting Summum v. Pleasant Grove City, 483 F.3d 1044, 1056 (10th Cir. 2007), rev'd on other grounds, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009))(alterations in Motion only). Legacy Church contends that, because the state's “perception of harm is speculative” and the state allows such speculative harm to occur “in other places,” the harm to the government cannot outweigh Legacy Church's First Amendment injuries. Motion at 10. Legacy Church says that “there is no pandemic exception to the fundamental liberties of the Constitution.” Motion at 10. Legacy Church argues that, while the state will not suffer more than “speculative harm” if the Court grants a temporary restraining order, Legacy Church “will suffer certain harm.” Motion at 11. Legacy Church further contends that “the Court should presume that the balance of harms tips in their favor,” because Legacy Church alleges violations of its First Amendment rights. Motion at 11. Last, Legacy Church argues that granting a temporary restraining order is in the public's interest, because “ ‘[v]indicating First Amendment freedoms is clearly in the public interest.’ ” Motion at 11 (quoting Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005), and citing Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d at 1076; Elam Constr., Inc. v. Reg'l Transp. Dist., 129 F.3d 1343, 1347 (10th Cir. 1997))(alteration in Motion only).
11. Legacy Church requests a temporary restraining order with the following characteristics:
Legacy requests the Court grant a Temporary Restraining Order that prohibits the Secretary from now enforcing mass gathering restrictions on places of worship, including Legacy's four New Mexico campuses. The least restrictive means available to further the state's public health interest are those social distancing guidelines applicable to non-retail space essential businesses identified in the definitions section of the [April 11 Order]. While Legacy continues to encourage its members to worship with them through their online services, the Secretary cannot require them to lock out parishioners if Legacy can provide the same socially distant measures used by essential businesses. In the alternative, Legacy requests that

restrictions on gathering be no-less than those imposed on retail spaces in the state. Further in the alternative, Legacy requests the Court enjoin the Secretary and the State from enforcing the [April 11 Order's] mass gathering restriction of five people or more in a connected space, as it specifically targets people freely exercising their religious beliefs.
*12 Motion at 11-12.
3. The NM Response. 12. New Mexico responded to the Motion on Wednesday, April 15, 2020. See State of New Mexico's Response to Plaintiff's Motion for Temporary Restraining Order, filed April 15, 2020 (Doc. 11)(“NM Response”). New Mexico argues that the April 11 Order is a constitutional exercise of New Mexico's police power, and that the April 11 Order does not single out or disfavor religion. See NM Response at 1. New Mexico contends that Legacy Church has not “shown that it cannot accommodate the production and broadcast of its religious services to comply with the Secretary's restrictions.” NM Response at 1. New Mexico also asserts that it has sovereign immunity under 42 U.S.C. § 1983, because it “is not a ‘person’ subject to suit under Section 1983 nor has the State as an entity taken an action that may be enjoined by this Court.” NM Response at 2 (quoting 42 U.S.C. § 1983).
13. New Mexico argues that public health orders like the April 11 Order “are at the heart of the powers reserved to New Mexico in the Constitution's federalist structure so that the State can keep New Mexicans safe and alive.” NM Response at 3. New Mexico notes that New Mexico law authorizes Secretary Kunkel to issue public health orders to protect New Mexicans' health and lives. See NM Response at 3 (citing N.M. Stat. Ann. §§ 9-7-6(B)(5), 24-1-3(E)). New Mexico further contends that the Tenth Amendment to the Constitution of the United States “reserves to the States all powers ‘not delegated to the United States by the Constitution, nor prohibited by it.’ ” NM Response at 3 (quoting U.S. Const. amend. X). New Mexico also argues that courts have upheld quarantine laws and other laws that protect the public from infectious diseases. See NM Response at 3-4 (citing Jacobson v. Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 49 L.Ed. 643 (1905); Compagnie Francaise de

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Navigation a Vapeur v. State Bd. of Health, La., 186 U.S. 380, 387, 22 S.Ct. 811, 46 L.Ed. 1209 (1902); Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016)(McNulty, J.); United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963)(Dooling, J.)).
14. New Mexico asserts that the April 10 Order is a neutral law of general applicability and, thus, is subject to rational basis review, not strict scrutiny. See NM Response at 4 (citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 190, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012); Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 52 (10th Cir. 2013)). According to New Mexico, a “ ‘law is neutral so long as its object is something other than the infringement or restriction of religious practices.’ ” NM Response at 5 (quoting Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 649-50 (10th Cir. 2006)). New Mexico notes that the April 11 Order provides houses of worship a limited exemption to “ ‘hold[ ] services through audiovisual means.’ ” NM Response at 5 (quoting April 11 Order ¶ 1, at 5)(alteration in NM Response only). New Mexico argues that Legacy Church's assertion that this exemption is not broad enough “does not establish that the law specifically targets religious practices, which ... are subject to the generally-applicable restriction on mass gathering.” NM Response at 5-6. New Mexico next argues that Legacy Church has not shown that it will suffer irreparable harm if the Court does not grant a temporary restraining order, because Legacy Church “does not explain how the public health order's restrictions prevent its members' religious practice” and “provides no explanation of why it cannot adapt its services.” NM Response at 6.
*13 15. Last, New Mexico argues that it has sovereign immunity under § 1983. See NM Response at 6. New Mexico notes that the Eleventh Amendment to the Constitution of the United States recognizes each state's sovereign immunity. See NM Response at 6-7 (citing U.S. Const. amend. XI; Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013)). New Mexico contends that the limited exception to sovereign immunity that the Supreme Court recognized in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), does not apply to Legacy Church's claims, because: (i) “the State is not an individual officer subject to suit for prospective injunctive relief”; (ii) Legacy Church's § 1983 claim “cannot be brought against a State”; (iii) “the Declaratory Judgment Act[, 28 U.S.C. §§ 2201-02] alone cannot provide jurisdiction over a claim against the State

where none otherwise exists.” Motion at 7-8 (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 69, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Hill v. Kemp, 478 F.3d 1236, 1257 (10th Cir. 2007); Prier v. Steed, 456 F.3d 1209, 1212 (10th Cir. 2006)).
4. The Kunkel Response. 16. Secretary Kunkel responded to the Motion on Wednesday, April 15, 2020. See Response to Verified Emergency Motion for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunctive Relief, filed April 15, 2020 (Doc. 12)(“Kunkel Response”). Secretary Kunkel argues that the exercise of fundamental constitutional rights does not “justify significantly jeopardizing statewide public health.” Kunkel Response at 1 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 88 L.Ed. 645 (1944)). Secretary Kunkel says that “the exemption that has been granted to all houses of worship has been specifically tailored to allow them to provide services to their congregants via remote electronic means or through drive-in services without the significant risk of exposing those congregants to an infectious disease through person-to-person contact.” Kunkel Response at 2. Secretary Kunkel argues that Legacy Church has not demonstrated that allowing houses of worship to provide religious services through audiovisual means while prohibiting in-person attendance at religious service infringes upon Legacy Church's rights under the Free Exercise and Freedom of Assembly clauses. See Kunkel Response at 2.
17. Secretary Kunkel says that coronavirus is a contagious disease that is spread through person-to-person contact. See Kunkel Response at 2. She notes that the number of individuals in the United States who have tested positive for coronavirus has grown rapidly in the past two months: from twelve confirmed cases on February 11, 2020, to 1,215 confirmed cases on March 11, 2020, to 525,704 confirmed cases on April 11, 2020. See Kunkel Response at 2-3. According to Secretary Kunkel, the “ease and rapidity with which COVID-19 spreads and its severe and sometimes fatal symptoms in a certain percentage of the population create a real potential for mass deaths and a severely overloaded health care system.” Kunkel Response at 3. Secretary Kunkel argues that the only effective way to limit coronavirus' spread is “to limit person-to-person contact and to close down public spaces and gatherings to the greatest extent possible.” Kunkel

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Response at 3. Secretary Kunkel maintains that the purpose of the New Mexico Department of Health's recent public health orders is “to encourage New Mexicans to stay in their homes to the greatest extent possible and to practice all possible precautions when they are required to enter public spaces.” Kunkel Response at 3-4.
*14 18. Secretary Kunkel says that the April 11 Order's primary message is that “ ‘all New Mexican should be staying in their homes for all but the most essential activities and services.’ ” Kunkel Response at 5 (quoting April 11 Order at 1)(emphasis omitted). Secretary Kunkel notes that “the term ‘essential business’ is not meant as a value judgment that some businesses are more important than others; it is intended to identify categories of businesses and services that are life-sustaining and may be required on an immediate in-person basis.” Kunkel Response at 5. Secretary further notes that, before the April 11 Order, the New Mexico Department of Health's public health orders exempted houses of worship from restrictions on mass gatherings and nonessential businesses. See Kunkel Response at 6 (citing April 6 Order at 5). Secretary Kunkel said that the public health orders placed restrictions on other large venues -- such as movie theaters, concert venues, and casinos -- before the April 11 Order extended the restrictions to houses of worship. See Kunkel Response at 6. Secretary Kunkel argues that the April 11 Order “narrowed the special exemption provided to houses of worship by requiring them to adhere to generally applicable restrictions on private and public ‘mass gatherings,' but stating that nothing in the order was intended to preclude them from operating to the extent necessary to hold services through audiovisual means.” Kunkel Response at 6 (quoting April 11 Order at 5). Secretary Kunkel clarifies that “houses of worship are still exempt from the ‘mass gatherings' restriction to the extent necessary to provide remote services to their congregants, but they are no longer exempt with respect to in-person services. Kunkel Response at 7 (quoting April 11 Order at 5).
19. Secretary Kunkel notes that Legacy Church argues that its temporary inability to allow people to attend its church services in person violates Legacy Church's First Amendment rights, even though Legacy Church: (i) is capable of livestreaming its church services online; (ii) has live-streamed its services to over 10,000 online viewers; and (iii) has asked its members to stay home during church services. See Kunkel Response at 7. Secretary Kunkel says that, after Legacy Church filed its Complaint, her counsel told Legacy Counsel that the April 11 Order allows them “to have the minimum

number of people physically present to celebrate their service and to broadcast it online and encouraged Legacy to consider whether a full live band was necessary.” Kunkel Response at 8. According to Secretary Kunkel, Legacy Church rejected this suggestion and “now seeks a ruling that would allow an unnamed number of congregants to be physically present, so long as they followed social distancing protocols.” Kunkel Response at 8.
20. Secretary Kunkel disagrees with Legacy Church's characterization of the April 11 Order as “one that ‘specifically targets houses of worship.’ ” Kunkel Response at 9 (quoting Motion at 6). Secretary Kunkel avers that the April 11 Order applies to all public and private gatherings -- including houses of worship -- of five or more people, it also “provide[s] provide religious institutions with leeway to allow for persons necessary to conduct services through audiovisual means.” Kunkel Response at 9. Secretary Kunkel argues that the April 11 Order's “even-handed restrictions” do not target or single out religious institutions, and thus “the concerns attendant to governmental infringement on the free exercise of religion are not implicated.” Kunkel Response at 9 (citing Grace United Methodist Church v. City of Cheyenne, 451 F.3d at 649). Secretary Kunkel says that she need only show that the restrictions placed on houses of worship are “rationally related to a legitimate state interest even if, arguendo, those restrictions burden Plaintiff's ability to conduct religious services.” Kunkel Response at 9 (citing Grace United Methodist Church v. City of Cheyenne, 451 F.3d at 649; Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 697-98 (10th Cir. 1998)).
21. Secretary Kunkel asserts that the Free Exercise Clause does not require her to carve out special exemptions for religious institutions from a generally applicable restriction on gatherings. See Kunkel Response at 10 (citing Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d at 702; Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 696, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973)). She notes that New Mexico and the Department of Health have a compelling interest in ensuring the public's health. See Kunkel Response at 11. According to Secretary Kunkel, “ ‘[t]he right to practice religion freely does not include liberty to expose the community ... to communicable disease or the latter to ill health or death.’ ” Kunkel Response at 11 (quoting Prince v. Massachusetts, 321 U.S. at 167, 64 S.Ct. 438)(alteration added)(ellipsis in Kunkel Response only). In

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response to Legacy Church's argument that April 11 Order does not use the least restrictive means available, Secretary Kunkel asserts that the Free Exercise Clause is not designed “ ‘to allow an individual to exact special treatment from the government.’ ” Kunkel Response at 12 (quoting Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d at 702).
*15 22. Secretary Kunkel next argues that the First Amendment does not guarantee a “categorical right” for people to gather in person at a particular location. Kunkel Response at 13 (citing San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1033 (9th Cir. 2004)). Secretary Kunkel avers that Legacy Church has not shown how disallowing physical gatherings while allowing houses of worship to provide religious services through audiovisual means infringes Legacy Church's First Amendment rights. See Kunkel Response at 13. Secretary Kunkel further argues that the April 11 Order also survives strict scrutiny, because New Mexico and the New Mexico Department of Health have a compelling interest in mitigating coronavirus' spread. See Kunkel Response at 14. Secretary Kunkel also asserts that the April 11 Order's restriction on gatherings is narrowly tailored, because it allows houses of worship to perform and live-stream religious services online. See Kunkel Response at 14. Secretary Kunkel warns that Legacy Church's “proposed least restrictive means” would “very likely spread the virus to Plaintiff's congregants and in their local communities.” Kunkel Response at 15.
23. Secretary Kunkel asserts that the balance of harms does not favor Legacy Church. See Kunkel Response at 15. Secretary Kunkel emphasizes that there is “nothing speculative” about coronavirus' harms or about “the possibility of substantially increasing the number of infections through public gatherings simultaneously bringing together hundreds of people in a public space.” Kunkel Response at 15-16. Secretary Kunkel argues that Legacy Church's alleged harms are speculative, because Legacy Church “has never received a citation under a public health order” and is “already conducting its services in a manner that is very close to complying with the Order and could easily be adjusted to do so.” Kunkel Response at 16. Secretary Kunkel avers that the April 11 Order does not permit gatherings similar to those that Legacy Church seeks to have in similar places, such as theaters, concert halls, and stadiums. See Kunkel Response at 16. Last, Secretary Kunkel argues that the public interest favors denying Legacy Church's request for injunctive relief. See Kunkel Response at 16. Secretary Kunkel notes that state and local governments throughout

New Mexico and the United States “have adopted temporary rules that encourage or require people to stay in their homes and avoid physical proximity to others to the greatest extent possible.” Kunkel Response at 16. She argues that allowing public gatherings at Legacy Church could lead to a coronavirus outbreak that would further exacerbate the public health problems that New Mexico is currently facing. See Kunkel Response at 16-17.
5. The Thursday, April 16, 2020, Hearing. 24. The Court held a hearing on Thursday, April 16, 2020. See Draft Transcript of Hearing at 1 (held April 16, 2020)(“April 16 Tr.”). 5 Legacy Church conceded “without question” that New Mexico's interest in protecting public health is a compelling interest. April 16 Tr. at 6:5-6 (Hunter). Legacy Church argued that it has met the four factors for granting a temporary restraining order: (i) likelihood of success on the merits; (ii) irreparable harm; (iii) balancing of harms to Legacy against harms to the state; and (iv) the public interest. See April 16 Tr. at 6:14-16 (Hunter). Legacy Church said that “there is no pandemic exception the fundamental liberties that the constitution safeguards.” April 16 Tr. at 6:23-25 (Hunter).
25. The Court said that, on page seven of the Kunkel Response, Secretary Kunkel says that houses or worship are still exempt from restrictions on gatherings to the extent necessary to provide and live-stream church services, but congregants are not longer exempt and cannot appear in person. See April 16 Tr. at 7:18-22 (Court). The Court asked Legacy Church what its concern is if the April 11 Order does restrict Legacy Church's ability to provide and livestream its church services online. See April 16 Tr. at 7:22-8:4 (Court). Legacy Church responded that it does not interpret the April 11 Order as providing “sufficient protection” to conduct audiovisual services in the manner that it seeks. See April 16 Tr. at 8:14-19 (Hunter). Legacy Church confirmed that it is not asking parishioners to attend church services in person like it did on Easter. See April 16 Tr. at 10:4-9 (Court, Hunter). Legacy said, however, that there “would be certain circumstances where it's possible that parishioners can't stream or don't have access” to internet, and Legacy Church would like to allow such individuals to attend church services in person. April 16 Tr. at 10:13-15 (Hunter). Legacy Church said that it would comply with the CDC's guidelines and ensure that parishioners who attend church services engage in social distancing. See April 16 Tr. at 11:1-3 (Hunter). The Court asked whether Legacy Church's church services also air on broadcast television, and Legacy Church answered

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affirmatively. See April 16 Tr. at 11:4-7 (Court, Hunter). The Court expressed that it is difficult to imagine that congregants cannot view church services online or on television. See April 16 Tr. at 11:14-18 (Court). Legacy Church asked if the Court would allow its pastor, Steve Smothermon, to speak about the “real life situations” that Legacy Church faces, but Secretary Kunkel objected and argued that the parties had agreed that they would argue only their briefs at the hearing. 11:19-12:9 (Hunter, Court, Garcia).
*16 26. Legacy Church argued that it is in the best position to determine how to conduct its church services in a manner consistent with the CDC's guidelines. See April 16 Tr. at 12:17-20 (Hunter). Legacy Church asserted that Constitution does not allow New Mexico and the New Mexico Department of Health to limit houses of worships to the extent that the April 11 Order restricts religious gatherings. See April 16 Tr. at 12:21-13:4 (Hunter). Legacy Church said that it “a determination by this Court that the April 11 order is unenforceable with respect to Legacy Church.” April 16 Tr. at 13:7-8 (Hunter). Legacy Church argued that, “under a heightened scrutiny standard or a strict [scrutiny] standard,” the April 11 Order “is not the least restrictive means available to protect the compelling Government interest at stake.” April 16 Tr. at 13:13-17 (Hunter). Legacy Church contended that “there is no fundamental difference between what Legacy Church intends to do and what the state in this case is allowing” stores such as Wal-Mart, Home Depot, and liquor stores to do. April 16 Tr. at 13:22-24 (Hunter). Legacy Church argued that the April 11 Order is not “applied equally across the board.” April 16 Tr. at 14:6-7 (Hunter). Legacy Church asserted that the Court should apply strict scrutiny review, but if said that under either strict scrutiny or a “heightened scrutiny standard,” the Court should enjoin New Mexico and the New Mexico Department of Health from enforcing the April 11 Order against it. April 16 Tr. at 14:14 (Hunter).
27. The Court asked Legacy Church why it should apply strict scrutiny review based on the opinion in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), by the Honorable Antonin Scalia, then-Associate Justice for the Supreme Court of the United States. See April 16 Tr. at 14:20-24 (Court). Legacy Church responded that the April 11 Order is not neutral or generally applicable. See April 16 Tr. at 14:1-15:3 (Hunter). Legacy Church conceded, however, that the April 11 Order does not discriminate between religions or elevate one religion over another religion. See April 16 Tr. at 15:4:-20 (Court, Hunter). Legacy Church reiterated that the

April 11 Order deems some businesses as essential and other businesses non-essential, but there is “no rational difference between the conduct going on” at essential businesses and the conduct at Legacy Church's church services. April 16 Tr. at 16:1-2 (Hunter). The Court stated that, if Legacy Church argues that there is must be a rational basis for the April 11 Order's restrictions, then the government “probably can come up with a rational reason.” April 16 Tr. at 16:14 (Court).
28. Legacy Church noted that the right of free exercise is enshrined in the First Amendment and is “why thousands and hundreds of thousands of people have come to this country since its founding.” April 16 Tr. at 17:2-4 (Hunter). Legacy Church then argued that, “by not declaring religious [ ] services as essential, that in itself was treating them unequal.” April 16 Tr. at 17:4-6 (Hunter). Legacy Church also noted that the April 6 Order's restriction on mass gatherings exempted houses of worship, and then, at 5:00 p.m. on the day before Easter, the New Mexico Department of Health issued the April 11 Order, which does not exempt houses of worship. See April 16 Tr. at 18:4-7 (Hunter). According to Legacy Church, “that by itself ... is unequal treatment.” April 16 Tr. at 18:7-8 (Hunter). Legacy Church reiterated that “the treatment of Legacy should be no different than the treatment of WalMart or Home Depot or any other entity [on] the long list of essential services.” April 16 Tr. at 19:22-25 (Hunter).
29. Legacy Church declined to make oral arguments on its freedom of assembly claim. See April 16 Tr. at 20:1-6 (Court, Hunter). Legacy Church again conceded that the government has articulated a compelling state interest and that it is arguing that the April 11 Order is not narrowly tailored to promote that compelling state interest. See April 16 Tr. at 20:20-21:2 (Court, Hunter). The Court asked whether strict scrutiny still applies. See April 16 Tr. at 21:3-4 (Court). Legacy Church responded that, even if the Court applied heightened scrutiny, it would be entitled to a temporary restraining order under Lukumi. See April 16 Tr. at 21:5-16 (Hunter).
30. Secretary Kunkel began by providing background about the coronavirus pandemic. See April 16 Tr. at 21:25-22:2 (Garcia). Secretary Kunkel explained that New Mexico experience its first three confirmed cases of coronavirus about one month ago and, as of April 15, 2020, New Mexico had reported about 1,500 confirmed cases, thirtysix deaths caused by coronavirus, and that ninety people are currently seeking treatment in New Mexico hospitals. See April 16 Tr. at 22:2-8 (Garcia). Secretary Kunkel stressed that the coronavirus' infection rate is increasing and that

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“the only means [for] stemming the spread of the virus is through social distancing.” April 16 Tr. at 22:18-20 (Garcia). Secretary Kunkel argued that “there is no safe space” for gatherings, because “[a]ny time people are together in a group there is a heightened risk of transmission.” April 16 Tr. at 22:22-24 (Garcia). Secretary Kunkel noted that the New Mexico Department of Health has issued multiple public health orders and that, until the April 11 Order, houses of worship “received a favorable position with respect to other” entities, because previous public health orders exempted houses of worship from complying with restrictions. April 16 Tr. at 23:11-12 (Garcia). See April 16 Tr. at 23:20-25 (Court, Garcia). Secretary Kunkel explained that previous public health orders exempted houses of worship because of the important function that religion plays in New Mexico communities and because houses of worship provide comfort during difficult times. See April 16 Tr. at 24:4-9 (Garcia). Secretary Kunkel said that religious institutions have been voluntarily complying with directives to limit activities outside the home, and as the coronavirus has progressed, the New Mexico Department of Health has imposed additional restrictions. See April 16 Tr. at 24:9-21 (Garcia). Secretary Kunkel argued that the new restrictions placed on houses of worship are more favorable than the restrictions placed on other entities that often organize mass gatherings, such as sports teams. See April 16 Tr. at 24:12-17 (Garcia).
*17 31. The Court asked whether the New Mexico Department of Health classified houses of worship as essential businesses and then re-classified them as non-essential businesses and whether such governmental discretion move houses of worship “back and forth” is permissible under the First Amendment. April 16 Tr. at 25:8 (Court). Secretary Kunkel clarified that the New Mexico Department of Health's public health orders have never classified houses of worship as essential businesses, because they do not sell goods or services. See April 16 Tr. at 25:13-17 (Garcia). Secretary Kunkel explained that, until the April 11 Order, houses of worship always had been exempted from the mass gathering restrictions that previous public health orders imposed on non-essential businesses. See April 16 Tr. at 25:10-26:10 (Court, Garcia). The Court stated:
But I guess my question still stands. If the state has almost unlimited discretion to determine who gets the exemption and who doesn't get the exemption I guess that gives me some

pause under the First Amendment of saying that it's neutral and there is some limitation on the Government's ability to move people from list to list.
April 16 Tr. at 26:11-17 (Court). Secretary Kunkel responded that the New Mexico Department of Health is not moving people from list to list, because houses of worship are not businesses, so they never qualified as essential businesses. See April 16 Tr. at 26:18-24 (Garcia). Secretary Kunkel reiterated that the public health order's mass gathering restriction has remained “largely unchanged” and that houses of worship have been “given [a] favorable position throughout the pendency of this health emergency.” April 16 Tr. at 26:25-27:2 (Garcia).
32. The Court asked Secretary Kunkel why she waited until 5:00 p.m. on the day before Easter to impose new mass gathering restrictions on houses of worship. See April 16 Tr. at 27:3-4 (Court). Secretary Kunkel responded that it was also Passover the same weekend as Easter, and she noted that the police did not show up at Legacy Church or enforce the April 11 Order against it. See April 16 Tr. at 27:5-8 (Garcia). The Court said that the fact that the police did not show up at Legacy Church “goes perhaps to some equities here,” and it asked Secretary Kunkel whether she believes that Legacy Church violated the April 11 Order. See April 16 Tr. at 27:12-13 (Court). Secretary Kunkel argued that Legacy Church violated the April 11 Order on Easter, because it believes that more than five people gathered in the church. See April 16 Tr. at 27:16-20 (Garcia, Court).
33. The Court asked whether Legacy Church violated the April 11 Order by having fourteen people -- the music worship team, the pastor, and the assistant -- present in the church. See April 16 Tr. at 27:21-24 (Court). Secretary Kunkel's counsel said that he drafted the public health orders, and that this is “a gray area” that he did not contemplate when he drafted the order. April 16 Tr. at 28:11 (Garcia). The Court told Secretary Kunkel to take a position on whether Legacy Church violates the April 11 Order by having fourteen staff members present at the same time. See April 16 Tr. at 28:22-24 (Court). Secretary Kunkel said that having fourteen people would not be necessary, and the Court expressed concern that the government is determining who is essential and who is not essential to produce a church service. See April 16 Tr. at 29:3-30:3 (Garcia, Court). Secretary Kunkel responded that the government is not deciding what aspects of

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worship are essential and argued that, if music, for example, is a core part of the worship service, then the music worship team or band could perform in a different building and record the performance separately. See April 16 Tr. at 30:4-13 (Garcia). Secretary Kunkel added, however, that the New Mexico Department of Health is willing to accommodate Legacy Church's need for its worship team to perform in the space where the rest of the church service occurs. See April 16 Tr. at 30:24-31:2 (Garcia). The Court recapitulated Secretary Kunkel's position: “So your position is that the band did not comply with the order, but you would have been willing to overlook that and allow them to go ahead and have the 14 people there to conduct the worship.” April 16 Tr. at 31:3-7 (Court). Secretary Kunkel confirmed that the Court's summary is correct. See April 16 Tr. at 31:8 (Garcia). Secretary Kunkel also confirmed that Legacy Church can have sixteen technical staff members present for church services as well. See April 16 Tr. at 31:9-22 (Court, Garcia).
*18 34. The Court again asked Secretary Kunkel why the New Mexico Department of Health waited until 5:00 p.m. on the day before Easter to issue the April 11 Order. See April 16 Tr. at 33:13-16 (Court). Secretary Kunkel's counsel said that he was busy in the morning and that the timing of the April 11 Order “was not intended to preclude religious services,” which is “why you didn't see State Police or any law enforcement agency out at any church in the state regulating the conduct of Easter services.” April 16 Tr. at 33:19-23 (Garcia). The Court asked if something occurred the day before Easter that triggered the April 11 Order. See April 16 Tr. at 33:24-34:4 (Court). Secretary Kunkel responded:

April 16 Tr. at 34:5-15 (Garcia).
35. Secretary Kunkel next argued that the mass gathering restriction is a “rule of general applicability,” so the Court should apply rational basis review under Lukumi. April 16 Tr. at 34:20-21 (Garcia). The Court pressed Secretary Kunkel to explain what the rational basis was for distinguishing between scattered parishioners in a massive church and shoppers at a large hardware store “who may be there to buy flowers.” April 16 Tr. at 35:15-16 (Court). Secretary Kunkel responded that the relationship between the customer and a business is largely transactional, and customers do not come in to sit, congregate, and stay for an extended period of time. See April 16 Tr. 35:20-36:9 (Garcia). She added that “thousands of businesses are closed” and -- unlike churches -- not allowed to operate in any manner. April 16 Tr. at 36:9-15 (Garcia). She concluded on this point that, while the Court should apply rational basis, the state has surpassed a heightened standard of review, because the interest is compelling and allowing churches to stream or broadcast services is the least restrictive means. See April 16 Tr. at 36:20-37:6 (Garcia).
36. Secretary Kunkel then discussed the other elements in the preliminary injunction analysis. See April 16 Tr. at 37:21-22 (Garcia). She argued that Legacy Church would not suffer irreparable harm, because it is still conducting services and is carrying its message to its constituents. See April 16 Tr. at 38:6-16 (Garcia). She stated that the balance of equities and the public interest factors also weigh against Legacy Church, because “ensur[ing] the strictest of social distancing measures during the next several weeks” is the only way to slow COVID-19's spread. April 16 Tr. at 38:22-24 (Garcia).

Your Honor some of it again was just part of my schedule. Some of it was that the governor had asked me to do it. Some of it was you know just a function of the way the disease has progressed. But again I point to you no enforcement action was taken on Easter. And so to try and say that we did this in order to stop Easter services there is nothing to support that. If we had really wanted to stop Easter services we would have issued the directive and then sent State Police out to enforce it. That didn't happen.

37. New Mexico then presented its argument. See April 16 Tr. at 40:1-10 (Court, Sydow). It argued first that, under Employment Division v. Smith, the April 11, 2020, Public Health Order is a rule of general applicability and thus is constitutional. See April 16 Tr. at 41:22-5 (Sydow). The Court noted its hesitancy to call a rule with so many exemptions “generally applicable,” April 16 Tr. at 42:10-11 (Court), and New Mexico directed the Court to Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004), and Swanson by & Through Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998), which it said held that laws with categorical exemptions were still generally applicable so long as they did not require case-by-case determinations. See April 16 Tr. at 42:22-44:9 (Sydow).

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*19 38. The Court then asked New Mexico whether it was bothered that “we're setting up a situation where churches are either bargaining with the state or the state's order is so fuzzy that [ ] churches can't figure out what they can do and can't do.” April 16 Tr. at 45:4-8 (Court). New Mexico responded that incomplete enforcement is inevitable, see April 16 Tr. at 45:9-14 (Court), and the Court pressed again whether this suggested that perhaps the Order was not narrowly tailored, see April 16 Tr. at 45:15-20 (Court). New Mexico stated that, assuming strict scrutiny applies, it was trying to accommodate free exercise of religion and left to churches and other places of worship the determination of what is necessary for their religious services. See April 16 Tr. at 45:21-46:5 (Sydow). It agreed with the Court's characterization of its argument that it should not be penalized because it si “bending over backwards” to accommodate religion. See Tr. at 46:6-10 (Court, Sydow).
39. New Mexico then argued that Legacy Church has not shown it satisfied the other requirements for a preliminary injunction. See April 16 Tr. at 46:12 (Sydow). It stated that Legacy Church has not articulated “how essential parts of their religious practice are hamstrung by the public health order, and how they cannot accommodate that religious practice.” April 16 Tr. at 46:17-21 (Sydow). It added that, even at the oral argument, Legacy Church had not shown how the Order had prevented parishioners from attending services. See April 16 Tr. at 47:8-11 (Sydow).
40. Next, New Mexico argued that it was not a proper defendant in the case. See April 16 Tr. at 47:12-15 (Sydow). It stated that Ex Parte Young did not provide a waiver of sovereign immunity for a situation such as this, and that it did not fall into the definition of a “person” capable of suit under 42 U.S.C. § 1983. See April 16 Tr. at 47:20-48:4 (Sydow). The Court asked whether Legacy Church could still win an injunction against the state, see April 16 Tr. at 48:5-12 (Court), and New Mexico clarified that, while “it may be a matter of semantics,” Legacy Church could get injunctive relief against individual state actors but not the state itself. April 16 Tr. at 48:16-17 (Sydow).
41. Legacy Church then made rebuttal arguments. See April 16 Tr. at 49:9 (Hunter). It stated that language from Prince v. Massachusetts is not a vaccination case but instead concerned child welfare and child labor laws. See April 16 Tr. at 49:12-20 (Hunter). It argued that the line “[t]he right to practice religion freely does not include liberty to expose the community ... to communicable disease,” 321 U.S. at

160, 64 S.Ct. 438, was out of context, and the situation the Supreme Court was discussing “has no similarities to the factual circumstances that we have in the case before [the] Court.” April 16 Tr. at 50:19-20 (Hunter). Next, Legacy Church agreed with the Court that its showing of irreparable harm depended on whether it could prove a likely success on the merits. See April 16 Tr. at 50:22-52:4 (Hunter). It stated that it met this showing, because the state was defining which businesses were essential and making discretionary calls about who its Order applies to. See April 16 Tr. at 52:4-10 (Hunter). It stated that, although general rules can have exceptions to them and still constitute rules of general applicability, Secretary Kunkel's Order fails, because of its “complete arbitrariness of what they determined to be essential and the fluidness of how that process has come about.” April 16 Tr. at 53:5-7 (Hunter).
42. The Court then asked why the Order should be treated differently than a statute passed by the legislature “in the calm of the moment.” April 16 Tr. at 53:8-9 (Court). The Court noted that legislatures do not have to explain their reasoning. See April 16 Tr. at 54:6-13 (Court). Legacy Church replied that the number of exemptions and their arbitrariness was troubling, and that if Secretary Kunkel has the power to deem arbitrarily deem hundreds of activities essential and hundreds of other non-essential, the Order was not generally applicable. See April 16 Tr. at 54:17-55:7 (Hunter). Legacy Church added that, contrary to the state's contention, it did not have the ability to broadcast live services. See April 16 Tr. at 55:22-56:3 (Hunter). Legacy Church then summed up its argument and stated that the New Mexico allows certain commercial activities to occur, but makes no distinction for religious services and, in fact, excludes them all together. See April 16 Tr. at 56:16-57:15 (Hunter). Legacy Church noted that instead of providing an exemption, New Mexico invites churches to negotiate with them “and then have the state dictate to them what is an essential part of the service and what is a nonessential part of the service.” April 16 Tr. at 57:15-18 (Hunter). It argued it is not the state's job to determine what is an essential part of a religious service, and this makes the Order not a rule of general applicability. See April 16 Tr. at 57:18-58:2 (Hunter). The parties then agreed that they were before the Court on a motion for a temporary restraining order, and they set a hearing on the preliminary injunction for April 30, 2020, at 8:30 a.m. See April 16 Tr. at 58:5-59:23 (Court, Garcia, Hunter, Sydow).

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v. Romero-Barcelo, 456 U.S. 305, 311-12, 102 S.Ct. 1798, 72

LAW REGARDING REQUESTS FOR A

L.Ed.2d 91 (1982)).

TEMPORARY RESTRAINING ORDER

[7] [8] The likelihood-of-success and irreparable-harm

*20 [3] [4] The requirements for a TRO issuance are factors are “the most critical” in the analysis. Nken v. Holder, essentially the same as those for a preliminary injunction 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). order. See People's Trust Fed. Credit Union v. Nat'l Credit It is insufficient, moreover, that a moving party demonstrate Union Admin. Bd., 350 F. Supp. 3d 1129, 1138 (D.N.M. that there is only a “possibility” of either success on the merits 2018)(Browning, J.); 13 Moore's Federal Practice ¶ 65.36(1), or irreparable harm. Diné Citizens Against Ruining Our Env't at 65-83 (3d ed. 2004). The primary differences between v. Jewell, 839 F.3d 1276 (10th Cir. 2016)(“Diné”). In Diné, a TRO and a preliminary injunction are that a TRO may the Tenth Circuit held that a relaxed test for preliminary relief issue without notice to the opposing party and that TROs is “inconsistent with the Supreme Court's recent decision are limited in duration to fourteen days. See Fed. R. Civ. P. in Winter v. Natural Resources Defense Council,” which 65(b)(1)-(2). In both cases, however, injunctive relief is an “overruled the [United States Court of Appeals for the] Ninth “extraordinary remedy,” and the movant must demonstrate Circuit's application of a modified preliminary injunction a “clear and unequivocal right” to have a request granted. test under which plaintiffs ... could receive a preliminary Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, injunction based only on a possibility, rather than a likelihood, 1256 (10th Cir. 2003)). See Herrera v. Santa Fe Pub. Sch., of irreparable harm.” Diné, 839 F.3d at 1282 (citing Winter, 792 F. Supp. 2d at 1181. The Supreme Court of the United 555 U.S. at 22, 129 S.Ct. 365). The Tenth Circuit concluded States and the United States Court of Appeals for the Tenth that, although the standard overruled in Winter v. Natural Circuit have explained that “[t]he purpose of a preliminary Resources Defense Council, Inc. dealt with the irreparableinjunction is merely to preserve the relative positions of the harm factor, “Winter's rationale seems to apply with equal parties until a trial on the merits can be held.” Univ. of Tex. force” to the likelihood-of-success factor. Diné, 839 F.3d at v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 1282. Accordingly, the Tenth Circuit held that “any modified 175 (1981). See Keirnan v. Utah Transit Auth., 339 F.3d 1217, test which relaxes one of the prongs for preliminary relief and 1220 (10th Cir. 2003)(“ ‘In issuing a preliminary injunction, a thus deviates from the standard test is impermissible.” Diné, court is primarily attempting to preserve the power to render 839 F.3d at 1282.

a meaningful decision on the merits.’ ”)(quoting Tri-State Generation & Transmission Ass'n v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir. 1986)).

[9] Under rule 65(c), the Court may issue a temporary restraining order “only if the movant gives security in an amount that the court considers proper to pay the costs

[5] [6] To establish its right to a temporary restraining and damages sustained by any party found to have been order under rule 65(b), a moving party must demonstrate wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). that “immediate and irreparable injury, loss, or damage will The United States and its officers and agencies are exempt result” unless a court issues the order. Fed. R. Civ. P. 65(b). from this requirement. See Fed. R. Civ. P. 65(c). The Court “[I]rreparable injury” is “harm that cannot be undone, such must consider whether a bond is necessary. See Coquina Oil as by an award of compensatory damages or otherwise.” Salt Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 Lake Tribune Pub. Co., LLC v. AT & T Corp., 320 F.3d (10th Cir. 1987)(concluding that, where a trial court does not 1081, 1105 (10th Cir. 2003)(citing Tri-State Generation & “contemplate the imposition of the bond, its order granting a Transmission Ass'n v. Shoshone River Power, Inc., 805 F.2d preliminary injunction is unsupportable.”). See also Flood v. at 355). A moving party must “establish that he is likely to ClearOne Comm'ns, 618 F.3 1110, 1126 n.4 (10th Cir. 2010). succeed on the merits, that he is likely to suffer irreparable Courts in the Tenth Circuit “have ‘wide discretion under harm in the absence of preliminary relief, that the balance of Rule 65(c) in determining whether to require security,’ ” and equities tips in his favor, and that an injunction is in the public may, therefore, impose no bond requirement. RoDa Drilling interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, Co. v. Siegal, 552 F.3d 1203, 1215 (10th Cir. 2009)(quoting 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)(“Winter”)(citing Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1206 Munaf v. Geren, 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 (10th Cir. 2003)).

L.Ed.2d 1 (2008)); Amoco Prod. Co. v. Gambell, 480 U.S.

531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); Weinberger

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*21 The Court has written several times on the topic of TROs and preliminary injunctions. In O Centro Espirita Beneficiente Uniao Do Vegetal v. Duke, 286 F. Supp. 3d 1239 (D.N.M. 2017)(“O Centro”), the Court issued a preliminary injunction requiring the United States Citizen and Immigration Services (“USCIS”) to reconsider the I-129 nonimmigrant R-1 petition to a religious minister to the O Centro Espirita Beneficiente Uniao Do De Vegetal Christian spiritualist religious organization (“UDV”). See O Centro, 286 F. Supp. 3d at 1269. The Court issued that relief, in part because it was substantially likely that the USCIS' first denial of the minister's R-1 petition violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (“RFRA”). See O Centro, 286 F. Supp. 3d at 1263-64. USCIS had denied the petition, because the minister made no money and because the minister was not part of an established missionary program. See 286 F. Supp. 3d at 1264. UDV theology precluded its ministers from making money, and an established missionary program requires that at least one religious worker, at some point, be compensated. See 286 F. Supp. 3d at 1264. The Court reasoned, accordingly, that DHS had substantially burdened the minister's right to exercise his religion, because, in effect, the R-1 petition review required the minister to make money to preach his liturgy in the United States, even though his religion forbade him from making money. See 286 F. Supp. 3d at 1264. The minister also met a preliminary injunction's other three prongs, so the Court granted the relief requested. See 286 F. Supp. 3d at 1265-66. The Court has also issued a TRO, prohibiting the Santa Fe Public Schools from suspicionless pat-down searches of its students before prom and graduation. See Herrera v. Santa Fe Pub. Schs., 792 F. Supp. 2d at 1200. It concluded that: (i) a violation of the Fourth Amendment of the Constitution of the United States “standing alone” constitutes irreparable injury; (ii) suspicionless pat-down searches involving “touching of students' bodies” including “cupping and shaking girls' breasts” were unreasonably and unconstitutionally intrusive, even if those type of searches were likely effective in apprehending students with drugs, weapons, alcohol, or “distracting contraband”; (iii) the threatened injury outweighed the damage of the TRO; and (iv) the TRO was not adverse to the public, because it would protect other students' constitutional rights who attended prom and graduation. Herrera v. Santa Fe Pub. Schs., 792 F. Supp. 2d at 1194-98. The Court denied a request for injunctive relief in Salazar v. San Juan County Detention Center, No. CIV 15-0417 JB/LF, 2016 WL 335447 (D.N.M. Jan. 15, 2016)(Browning, J.), after concluding that, although the defendants faced irreparable harm, the balance of equities

favored them, and an injunction was not adverse to the public interest, the plaintiffs were unlikely to succeed on the merits. See Salazar v. San Juan Cty. Detention Ctr., 2016 WL 335447, at *43-52.
RELEVANT LAW REGARDING THE FREE EXERCISE CLAUSE
[10] The First Amendment's Religion Clause states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]” U.S. Const. amend. I. From its earliest decision on the Free Exercise Clause, the Supreme Court has recognized that religious freedom does not act as an absolute shield against generally applicable laws. The Supreme Court of the United States first addressed the Free Exercise Clause's meaning in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879), in which George Reynolds, an adherent of the Church of Latter Day Saints, challenged his conviction under a federal statute prohibiting bigamy in United States Territories. See 98 U.S. at 146-47. Reynolds argued that his religious beliefs mandated polygamy, and that his prosecution violated the Free Exercise Clause. See 98 U.S. at 147. The Supreme Court framed the issue as inquiring into “the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.” 98 U.S. at 162. The Honorable Morris Waite, then-Chief Justice of the Supreme Court of the United States, weighed Reynolds' religious freedom against government's interest in regulating marriage and concluded that the Free Exercise Clause does not provide such a shield, holding: “[I]t is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.” 98 U.S. at 165. Chief Justice Waite concluded that, while freedom of religious belief is absolute, freedom of religious practice is subject to restraint. See 98 U.S. at 166. To permit such freedom, the Chief Justice asserted, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” 98 U.S. at 167.
[11] [12] So stood the law of religious freedom until the mid-20th century, when the Supreme Court expanded its interpretation of the Free Exercise Clause. In Cantwell

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v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), the Supreme Court held that an ordinance which operated to prevent two Jehovah's Witnesses from proselytizing on a street corner, including denouncing the Catholic faith, violated the Free Exercise Clause. 310 U.S. at 303, 60 S.Ct. 900. “No one would contest the proposition that a state may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee.” 310 U.S. at 304, 60 S.Ct. 900. The Supreme Court nonetheless maintained Reynolds v. United States' belief/practice duality, and held that the First Amendment “embraces two concepts[ ] -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” 310 U.S. at 303-04, 60 S.Ct. 900. The Supreme Court further noted that “[e]ven the exercise of religion may be at some slight convenience in order that the state may protect its citizens from injury.” 310 U.S. at 306, 60 S.Ct. 900.
*22 Religious freedom continued to expand under the Warren and Burger Courts. The Supreme Court recognized, among other rights, freedom of religious ministers to serve as elected officials, see McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978), freedom to abstain from a school's pledge of allegiance ritual, see West Va. State Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), freedom from compelled affirmation of religious belief, see Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), and freedom from compulsory school attendance laws, see Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). The Supreme Court typically subjected burdens on the free exercise of religion to strict scrutiny. See, e.g., Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). At the high-water mark, the Supreme Court held that the Free Exercise Clause acts as a sword to mandate that government accommodate religious belief in employment contexts. Thus, a compelling governmental purpose must justify a law which imposes special disability on religious groups or individuals because of their religion. See, e.g., Sherbert v. Verner, 374 U.S. at 404, 83 S.Ct. 1790. In Sherbert v. Verner, the Supreme Court held that states may not withhold unemployment benefits to an individual who was terminated from her job because her religious beliefs dictated that she could not work on Saturdays. See 374 U.S. at 406, 83 S.Ct. 1790. During this high-water period, the Supreme Court also held that government may not condition receipt of public benefits on conduct that one's religion proscribes. See Thomas v. Review

Bd. of Indiana Emp't, 450 U.S. 707, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981).
[13] [14] [15] Nonetheless, despite the view that religious freedom has eroded since the Warren and Burger Courts, some principles from Reynolds v. United States remain consistent to this day. The Burger Court recognized that the Free Exercise Clause does not protect against every burden on religious practice incident to living in a well-ordered society. In United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), the Supreme Court held that the Free Exercise Clause does not entitle an Old Order Amish employer to forgo filing federal tax returns because of his religious beliefs. See 455 U.S. at 260, 102 S.Ct. 1051. The Supreme Court noted that it had “been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs.” 455 U.S. at 261, 102 S.Ct. 1051. Similarly, in Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), the Supreme Court held that the Free Exercise Clause does not compel the United States to accommodate a religious objection to statutory requirements that the government use Social Security numbers for applicants seeking welfare benefits. See 476 U.S. at 699-700, 106 S.Ct. 2147. The Supreme Court concluded that the First Amendment does not “require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family.” 476 U.S. at 699, 476 U.S. 693 (emphasis in original). Similarly, in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), the Supreme Court held that the Free Exercise Clause did not require the United States to accommodate Native Americans' religious objections to a planned road through a section of a national forest which they held sacred. See 485 U.S. at 449, 108 S.Ct. 1319. The Supreme Court held that not all governmental actions which “make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions.” 485 U.S. at 450-51, 108 S.Ct. 1319. The First Amendment's key word, the Supreme Court concluded, is “ ‘prohibit,” because the “ ‘Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from government.’ ” 485 U.S. at 451, 108 S.Ct. 1319 (first quoting U.S. Const. amend. I and then quoting

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Sherbert v. Verner, 374 U.S. at 412, 83 S.Ct. 1790 (Douglas, of animals for religious purposes. See 508 U.S. at 527-28,

J., concurring)).

113 S.Ct. 2217. A new Santería 6 church in the city motivated

the laws' enactment, and the city expressed its belief that [16] [17] Employment Division, Department of Human Santería's practice of sacrificing animals is “inconsistent with Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, public morals.” 508 U.S. at 528, 113 S.Ct. 2217. Although 108 L.Ed.2d 876 (1990)(“Smith”) shapes contemporary Free the ordinances were facially neutral -- they prohibited Exercise law. In Smith, the Supreme Court addressed whether animal sacrifice without singling out the Santeria church Oregon could deny unemployment benefits to two adherents or using exclusively religious language -- the Supreme of the Native American Church who were terminated from Court concluded that the ordinances were neither neutral private employment for ingesting peyote, which Oregon nor generally applicable, in part because the Santería church defines as a controlled substance. See 494 U.S. at 874, 110 members' religious conduct was “almost the only conduct S.Ct. 1595. The Honorable Antonin Scalia, then-Associate subject to” the ordinances. 508 U.S. at 535, 113 S.Ct. Justice of the Supreme Court, answered that question in the 2217. Unlike Smith's treatment of the Oregon drug law, affirmative. See 494 U.S. at 882, 110 S.Ct. 1595. Citing the city's ordinances evinced sufficient animus to justify the Reynolds v. United States, the Supreme Court noted that Supreme Court's extended examination of the ordinance's freedom to believe and profess is absolute, but concluded motivations. See 508 U.S. at 540-45, 113 S.Ct. 2217. That that to permit individuals to use their religious beliefs to examination revealed that the laws were not neutral, because circumvent neutral and generally applicable laws would “ the ordinances' legislative history revealed that “they were ‘permit every citizen to become a law unto himself.’ ” 494 enacted because of, not merely in spite of, their suppression of U.S. at 879, 110 S.Ct. 1595 (quoting Reynolds v. United Santeria religious practice.” 508 U.S. at 540, 113 S.Ct. 2217. States, 98 U.S. at 167). Justice Scalia first distinguished The Supreme Court also concluded that the ordinances were the Supreme Court's precedent. He asserted that cases like not generally applicable, because they were under-inclusive Cantwell v. Connecticut, Wisconsin v. Yoder, and West in serving the defendant city's stated goals of protecting public Virginia Board of Education v. Barnette used strict scrutiny, health and preventing animal cruelty. See 508 U.S. at 543, because those cases involved plaintiffs who asserted more 113 S.Ct. 2217. The ordinances did not prohibit irreligious than one constitutional right. See 494 U.S. at 881, 110 conduct that endangered these interests to a greater extent S.Ct. 1595. Justice Scalia then contended that Sherbert v. than did Santeria religious practice. See 508 U.S. at 543, Verner and Thomas v. Review Board of Indiana Employment 113 S.Ct. 2217. The Supreme Court accordingly concluded Security Division's use of strict scrutiny is unique to that the ordinances served only the defendant city's animus employment discrimination cases involving statutes with against Santería, and asserted that the general applicability preexisting exemptions that could not be limited without requirement is designed to prevent precisely such animus. discriminating against religion. See 494 U.S. at 882-84, 110 See 508 U.S. at 546, 113 S.Ct. 2217. The Supreme Court S.Ct. 1595. Instead, the Supreme Court held that generally accordingly subjected the ordinances to a form of strict applicable, neutrally applied laws that incidentally restrict scrutiny and found them lacking. See 508 U.S. at 547, 113 religious exercise need be only rational and legitimate S.Ct. 2217. exercises of governmental power. See 494 U.S. at 885,

110 S.Ct. 1595. To require strict scrutiny to such laws, the Supreme Court held, would endanger myriad important legislation in the nation's cosmopolitan, religiously diverse society. See 494 U.S. at 888-89, 110 S.Ct. 1595. Accordingly, the religious adherent holds the burden to demonstrate that across-the-board, neutrally applied laws are irrational or beyond the government's authority.

[18] The Supreme Court also continues to hold -- albeit in a strengthened form -- that laws cannot impose special disability based on one's status as religious. In Trinity Lutheran Church of Columbia, Inc. v. Comer, ––– U.S. ––––, 137 S. Ct. 2012, 198 L.Ed.2d 551 (2017)(“Trinity Lutheran”), the Supreme Court addressed a Missouri state constitutional probision that prohibited the state from giving public benefits

*23 An otherwise valid law may be discriminatory when its purpose is to burden religion. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)(“Lukumi”), the Supreme Court addressed city ordinances that prohibited the sacrificing

to religious institutions. See 137 S. Ct. at 2017. The plaintiffchurch applied to participate in a state program that gave grants to non-profit organizations that repaved surfaces with material made from recycled tires. See 137 S. Ct. at 2017. The state pointed out the declining to issue the grant to the plaintiff-church did not in any way infringe upon the plaintiff-

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church's religious exercise and noted that it had no duty to

give the grant in the first place. See 137 S. Ct. at 2021-22.

Chief Justice Roberts, writing for the majority, disagreed: But Chief Justice Roberts disagreed:

Freedom of religion and religion has been used to justify all kinds

[T]he ... policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. Of course, Trinity Lutheran is free to continue operating as a church .... But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way ... the State has punished the free exercise of religion: “To condition the availability of

of discrimination throughout history, whether it be slavery, whether it be the [H]olocaust ... --we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to -- to use their religion to hurt others.

benefits ... upon [a recipient's] willingness to ... surrender[ ]

his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties.”

138 S. Ct. at 1729. The Supreme Court did not ultimately decide whether anti-discrimination laws that conflict with

137 S. Ct. at 2021-22 (quoting McDaniel v. Paty, 435 U.S. at religious beliefs violate the First Amendment. Instead, the

626, 98 S.Ct. 1322). On a narrow reading, Trinity Lutheran Supreme Court concluded that the Colorado Civil Rights

merely continues well-established precedent that government Commission's treatment of the baker's appeal violated the

may not impose special disability or withhold government First Amendment's command that government may not “base

benefits on the basis of one's religion. See McDaniel v. Paty, laws or regulations on hostility to a religion or religious

435 U.S. at 626, 98 S.Ct. 1322; Sherbert v. Verner, 374 U.S. viewpoint.” 138 S. Ct. at 1731. Justice Kagan summarized in

at 406, 83 S.Ct. 1790. The Supreme Court noted that it has a concurring opinion:

repeatedly held that only compelling governmental interests justify withholding generally available services on the basis of religion. See 137 S. Ct. at 2019. On a broader reading, however, Trinity Lutheran provides that the Free Exercise Clause now protecs individuals' and institutions' status as religious. Trinity Lutheran, under this broader reading, thus erases the distinction between what a religious institution is and what a religious institution does for the governmental services' purposes, because there was no actual conflict between Missouri's policy and the plaintiff-church's religious beliefs. See 137 S. Ct. at 2020. In other words, Trinity

“[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views neutral and respectful consideration. 138 S. Ct. at 1732 (Kagan, J., concurring)(quoting Masterpiece Cakeshop, 138 S. Ct. at 1727)(alterations in concurring opinion).

Lutheran provides that the fact of having beliefs cannot be a setback where government services and benefits are concerned.

[21] In this way, Masterpiece Cakeshop reflects the Supreme Court's longstanding aversion to laws and regulations that allow officials' subjective, case-by-case determinations. See,

*24 [19] [20] A law also may violate the Free Exercise e.g., Sherbert v. Verner, 374 U.S. at 401, 83 S.Ct. 1790

Clause if it is not applied neutrally. In Masterpiece Cakeshop, (invalidating denial of unemployment benefits where statute

LLC v. Colorado Civil Rights Commission, ––– U.S. ––––, allowed officials to evaluate, on a case-by-case basis, whether

138 S. Ct. 1719, 201 L.Ed.2d 35 (2018)(“Masterpiece an individual's termination from employment was for “good

Cakeshop”), a baker, citing his religious beliefs, refused cause”); Cantwell v. Connecticut, 310 U.S. at 305, 60 S.Ct.

to make a cake for a same-sex couple's wedding, defying 900 (invalidating a statute that prohibited solicitation for

a Colorado anti-discrimination statute. See 138 S. Ct. at religious or charitable causes without a designated official's

1723-25. He was cited for violating the Colorado statute, approval, and authorizing the official to determine whether

and in arguing his case before the Colorado Civil Rights the cause is genuinely religious or charitable). Similarly, a

Commission, one commissioner stated:

law may not be generally applicable where it has built-in

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exemptions that it does not extend to accommodate religious to restrict, for example, one's right to assemble.” In re Abbott,

exercise. See, e.g., Smith, 494 U.S. at 884-85, 110 S.Ct. 1595 954 F.3d at ––––, 2020 WL 1685929, at *1.

(citing cases). “[W]here the State has in place a system of

individual exemptions, it may not refuse to extend that system The Supreme Court has all but forgotten the right to

to cases of ‘religious hardship’ without compelling reason.” assemble in the modern era. See Forgotten Freedom at

Smith, 494 U.S. at 884, 110 S.Ct. 1595 (quoting Bowen 610-11 (noting that, as of 2010, the Supreme Court had

v. Roy, 476 U.S. at 708, 106 S.Ct. 2147). Such instances not heard a right-to-assemble claim in over twenty years);

require government to weigh religious freedom against Emmanuel Hiram Arnaud, Note, The Dismantling of Dissent:

governmental interest, a process that Smith expressly decries. Militarization and the Right to Peaceably Assemble, 101

See Smith, 494 U.S. at 887, 110 S.Ct. 1595. Accordingly, Cornell L. Rev. 777, 812 (2016)(“Dismantling of Dissent”)

where government regulates within its prerogative, it may (noting that, as of 2016, the Supreme Court had not heard

enact general laws and apply them neutrally without inquiry a right-to-assemble claim in over thirty years). Instead, the

into the extent to which the law incidentally burdens religious freedom of association has largely subsumed the freedom

exercise. Only where the government acts with religious of assembly. See Timothy Zick, Recovering the Assembly

animus or requires case-by-case determination of the merits Clause, 91 Tex. L. Rev. 375, 377 (2012)(“[T]he freedom of

or sincerity of religious beliefs as a condition of governmental assembly was transformed into a right of association.”)(citing

benefits or exemption from legal requirements will the John D. Inazu, Liberty's Refuge: The Forgotten Freedom of

government violate the First Amendment.

Assembly, (2010)). In the 1980s, the Supreme Court “swept

the remnants of association within the ambit of free speech

law,” culminating in its opinion about a freedom-of-assembly

LAW REGARDING THE ASSEMBLY CLAUSE

claim that did not include any reference to the freedom of assembly, but included several references to freedom of

*25 [22] [23] The First Amendment to the Constitution association. Recovering the Assembly Clause at 396 (quoting of the United States guarantees that “Congress shall make John D. Inazu, Liberty's Refuge: The Forgotten Freedom). no law ... abridging ... the right of the people peaceably See Forgotten Freedom at 611 (citing Boos v. Barry, 485 U.S. to assemble.” U.S. Const. amend. I. The Supreme Court 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)). Since then, concluded in De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, the Supreme Court has applied the freedom-of-association 81 L.Ed. 278 (1937), that the right to assemble is applicable to standard to freedom of assemblies cases, rendering them one state action, because the Due Process Clause of the Fourteenth and the same. See Dismantling of Dissent (noting that “the Amendment incorporates the right to assemble. See John standard for assessing freedom of assembly cases is now the D. Inazu, The Forgotten Freedom of Assembly, 84 Tul. L. one applies for freedom of association” and that “freedom Rev. 565, 599 (2010)(“Forgotten Freedom”). The Supreme of assembly is standardless because the [Supreme] Court Court emphasized the importance of the right to assemble, conflates the two freedoms”)

declaring that it “cannot be denied without violating those fundamental principles which lie at the base of all civil and political institutions.” De Jonge v. Oregon, 299 U.S. at 364, 57 S.Ct. 255 (citing Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 71 L.Ed. 270 (1926); Powell v. Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).

The Tenth Circuit similarly has conflated the freedom of association with the freedom of assembly by generally treating them as a single claim and analyzing them together. See, e.g., McCook v. Spriner Sch. Dist., 44 F. App'x 896, 910 (10th Cir. 2002)(unpublished)(repeating throughout the opinion that the plaintiffs brought a “freedom of assembly

[24] Despite the importance of the right to assemble, it, like other constitutional rights, is still subject to restrictions. The Supreme Court in Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), stated that constitutional rights “may at times, under the pressure of great dangers” be restricted “as the safety of the general public may demand.” 197 U.S. at 29, 25 S.Ct. 358. The Court of Appeals for the Fifth Circuit has noted that this “settled rule allows the state

and association claim”); Grace United Methodist Church v. City of Cheyenne, 451 F.3d at 658 (stating that “[t]he First Amendment protects associational and assembly rights in two distinct ways,” and then quoting a Supreme Court case that mentions only freedom of association)(citing Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 544, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987)). In the past thirty-two years, the Tenth Circuit's lengthiest discussion of freedom of assembly is a dissent analogizing churches in the free exercise

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context to public forums in the free speech context. See -- speech, assembly, petition for the redress of grievances, and

Messiah Baptist Church v. Cty. of Jefferson, State of Colo., the exercise of religion.” Roberts v. United States Jaycees,

859 F.2d 820, 830 (10th Cir. 1988)(McKay, J., dissenting). 468 U.S. at 618, 104 S.Ct. 3244.

The dissent, discussing a zoning ordinance's restriction of

buildings for religious worship, notes that “the right to In Roberts v. United States Jaycees, the Supreme Court

assemble or speak in a public forum cannot be absolutely extended First Amendment protection to the United States

prohibited, and may only be infringed by narrowly-drawn Jaycees, a civic organization, because it engaged in “the

time, place, and manner restrictions.” Messiah Baptist Church advocacy of political and public causes.” Roberts v. United

v. Cty. of Jefferson, State of Colo., 859 F.2d at 830. Beyond States Jaycees, 468 U.S. at 622, 104 S.Ct. 3244. The Boy

that case, the Tenth Circuit generally has folded freedom Scouts of America similarly qualified for First Amendment

of assembly into freedom of association 7 -- specifically expressive association. See Grace United Methodist Church v. City of Cheyenne, 451 F.3d at 658.

protection, because the organization “engaged in instilling its system of values in young people.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 643, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). In addition to civic or political causes, courts

*26 [25] [26] [27] Expressive association is the “ also often recognize the freedom of expressive association for ‘right to associate for the purpose of engaging in those organizations that “ ‘associate for the purpose of engaging activities protected by the First Amendment -- speech, in ... religious activities.’ ” Grace United Methodist Church assembly, petition for the redress of grievances, and the v. City of Cheyenne, 451 F.3d at 658 (quoting Bd. of Dirs. v.
exercise of religion.’ ” Schalk v. Gallemore, 906 F.2d at Rotary Club of Duarte, 481 U.S. at 544, 107 S.Ct. 1940). 8

498 (quoting Roberts v. United States Jaycees, 468 U.S. at

617-18, 104 S.Ct. 3244.). The First Amendment protects [28] [29] Although “[i]t is possible to find some kernel of

political expression manifested through conduct as well expression in almost every activity a person undertakes ...

as through speech. See Texas v. Johnson, 491 U.S. 397, such a kernel is not sufficient to bring the activity within

406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)(holding that the protection of the First Amendment.” City of Dallas v.

the burning of an American flag is conduct “sufficiently Stanglin, 490 U.S. at 25, 109 S.Ct. 1591. Courts generally

imbued with elements of communication to implicate the First refuse to extend First Amendment protection to individuals

Amendment”)(citation omitted)(internal quotation marks or organizations that assert the freedom of association in

omitted). Expressive association is not, however, an absolute a context that does not include the assertion of a separate

right, because “ ‘there may be countervailing principles that First Amendment right. See City of Dallas v. Stanglin, 490

prevail over the right of association.’ ” Grace v. United States U.S. at 24, 109 S.Ct. 1591. In City of Dallas v. Stanglin,

v. City of Cheyenne, 451 F.3d at 658 (quoting Walker v. the Supreme Court declined to recognize a First Amendment

City of Kansas City, 911 F.2d 80, 89 n.11 (8th Cir. 1990)). right of association for dance-hall patrons seeking to overturn

The Supreme Court has cautioned that “[i]nfringements on a municipal regulation creating age-restricted dance halls. See

that right may be justified by regulations adopted to serve 490 U.S. at 24, 109 S.Ct. 1591. The Supreme Court listed four

compelling state interests, unrelated to the suppression of reasons that “chance encounters in dance halls” do not involve

ideas, that cannot be achieved through means significantly “the sort of expressive association that the First Amendment

less restrictive of associational freedoms.” Roberts v. United has been held to protect”: (i) the dance hall patrons were not

States Jaycees, 468 U.S. at 623, 104 S.Ct. 3244. See Nat'l “members of any organized association”; (ii) “most [were]

Commodity & Barter Ass'n v. Archer, 31 F.3d 1521, 1531 strangers to one another”; (iii) the dance hall admitted all who

(10th Cir. 1994)(quoting Roberts v. United States Jaycees, paid the admission fee; and (iv) “[t]here [was] no suggestion

468 U.S. at 623, 104 S.Ct. 3244). Although an opportunity that these patrons take positions on public questions.” City of

“might be described as ‘associational’ in the common Dallas v. Stanglin, 490 U.S. at 24-25, 109 S.Ct. 1591.

parlance,” it does not necessarily follow that it involves “the sort of expressive association that the First Amendment has been held to protect.” City of Dallas v. Stanglin, 490 U.S. 19, 24, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989). Because “there is no generalized right of free association,” courts only “recognize[ ] a right to associate for the purpose of engaging in those activities protected by the First Amendment

*27 “To determine whether a group is protected by the First Amendment's expressive associational right, we must determine whether the group engages in ‘expressive association.’ The First Amendment's protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group

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must engage in some form of expression, whether it be public or private.”
A.M. ex rel. Youngers v. NM Dep't of Health, 117 F. Supp. 3d 1220, 1258 (D.N.M. 2015)(quoting Boy Scouts of Am. v. Dale, 530 U.S. at 648, 120 S.Ct. 2446). If the First Amendment's expressive associational right protectsthe group, courts next determine whether “ ‘[i]nfringements on that right [are] justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.’ ” Roberts v. United States Jaycees, 468 U.S. at 623, 104 S.Ct. 3244.
ANALYSIS
The Court denies the Motion. The Court concludes, first, that the Eleventh Amendment prohibits Legacy Church's suit insofar as it seeks relief against the state of New Mexico. Second, the Court concludes that Legacy Church is not substantially likely to succeed on the merits of its Free Exercise claim. Specifically, the April 11 Order is both neutral and generally applicable, and there is no evidence of animus against Christianity in particular or against religion in general. Accordingly, the April 11 Order is subject to rational basis review, which it satisfies. Third, the Court concludes that Legacy Church is not likely to succeed on its assembly claim, because the April 11 Order not only is narrowly tailored with sufficient alternatives for Legacy Church to assemble and mitigating a state pandemic is a compelling interest. Fourth, the Court concludes that Legacy Church has not demonstrated that it will suffer irreparable harm in a TRO's absence, it has not demonstrated that the equities weigh in a TRO's favor, and it has not demonstrated that a TRO is in the public interest. Accordingly, the Court denies the TRO.
I. THE ELEVENTH AMENDMENT PROHIBIT'S LEGACY CHURCH'S SUIT INSOFAR AS IT SEEKS RELIEF AGAINST NEW MEXICO. [30] Legacy Church names New Mexico as a defendant. See Complaint at 1. In the Complaint's jurisdiction and venue section, Legacy Church refers to Secretary Kunkel's status as New Mexico's Secretary of the Department of Health, but Legacy Church does not assert the Court's jurisdiction over New Mexico as a defendant. See Complaint ¶¶ 1-3, at 1. New Mexico contends that it is immune from § 1983 suit, because it has not waived the immunity that the Eleventh Amendment grants it. See NM Response at 6.

[31] [32] [33] [34] The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.” U.S. Const. amend. XI. The Supreme Court has interpreted state sovereign immunity broadly. As Justice Kennedy, writing for the Supreme Court in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), asserted: “[S]overeign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself.” 527 U.S. at 728, 119 S.Ct. 2240. The Supreme Court has also interpreted the Eleventh Amendment's text broadly, concluding, despite the Eleventh Amendment's text, that states are immune from suit in federal courts that their own citizens bring, see Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890), and suits by their own citizens in their own courts without their consent, see Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636. Accordingly, the Supreme Court has articulated only three ways for private plaintiffs to circumvent sovereign immunity: (i) suits against state officials for injunctive relief, see Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and, in some cases, money damages, see Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); (ii) suits to which states consent; and (iii) suits invoking Congressional statutes pursuant to the Fourteenth Amendment. The Eleventh Amendment permits federal courts to grant injunctions against state officials, even when compliance will cost the state great expense in the future. See, e.g., Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).
*28 [35] [36] [37] New Mexico has not waived its immunity. An explicit waiver requires the state to expressly agree to be sued in federal court. New Mexico's consent to be sued in its own courts is not enough. See Fla. Dep't of Health and Rehabilitative Servs. v. Fla. Nursing Home Ass'n, 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981). Nor is a general waiver enough; for a state statute or constitutional provision to validly waive Eleventh Amendment immunity, “it must specify the State's intention to subject itself to suit in federal court.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)(emphasis in original). For example, in Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990), the Supreme Court concluded that New Jersey and New York consented to suit in federal court via a statute

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that consented to suit “on the condition that venue ... shall be within a county or judicial district, established by one of said States or by the United States ...” 495 U.S. at 307, 110 S.Ct. 1868 (quoting N.J. Stat. Ann. § 32:1-162, N.Y. Unconsol. Laws § 7106 (1979)). The Supreme Court has also indicated that constructive consent, such as by failing to object to a federal court's jurisdiction, is not enough. See Edelman v. Jordan, 415 U.S. 651, 653, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

II. LEGACY CHURCH'S REQUESTED RELIEF FALLS INTO A CATEGORY OF DISFAVORED INJUNCTIONS. [40] The Tenth Circuit disfavors some injunctive relief and requires “more of the parties who request them.” Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th Cir. 2019)(citing Schrier v. Univ. of Colo., 427 F.3d at 1258-59 (10th Cir. 2005)). There are three disfavored injunctions: (i) mandatory (rather than prohibitory) injunctions; (ii)

[38] [39] Nor does § 1983 or any other potential avenue for injunctions that change the status quo; and (iii) injunctions

relief waive New Mexico's immunity. Here, Legacy Church that grant all the relief that the moving party could expect to

sues New Mexico to vindicate its First Amendment rights win at trial. See Mrs. Fields Franchising, LLC v. MFGPC, 941

pursuant to a Congressional statute -- § 1983. See Complaint F.3d at 1232; Logan v. Pub. Emps. Retirement Ass'n, 163 F.

at 3-5. The Supreme Court has concluded, however, that Supp. 3d 1007, 1026 (D.N.M. 2016)(Browning, J.). Movants

Congress may authorize suits against states only when for these injunctions need not make their showing “heavily

it acts pursuant to § 5 of the Fourteenth Amendment. and compellingly,” but the district court should “more closely

Although Congress enacted § 1983 pursuant to the Fourteenth scrutinize[ ] to assure that the exigencies of the case support

Amendment, the Supreme Court has concluded that § 1983 the granting of a remedy that is extraordinary even in the

provides insufficient indication that Congress intended to normal course.” O Centro Espirita Beneficiente Uniao Do

override state sovereign immunity:

Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004)(“O

Centro”), affd and remanded sub nom. Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126

[Section] 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered

S.Ct. 1211, 163 L.Ed.2d 1017 (2006). A district court can determine whether a requested injunction is disfavored by looking at the relief it seeks. See O Centro, 389 F.3d at 1003. Although Legacy Church's requested injunctive relief is prohibitory and does not change the status quo, granting the request would provide Legacy Church with all the relief it could expect to win at trial.

and firmly decided to abrogate the Eleventh Amendment immunity of the States.

*29 [41] The first disfavored category is “mandatory preliminary injunctions.” Schrier v. Univ. of Colo., 427 F.3d at 1258 (quoting O Centro, 389 F.3d at 977)(internal quotation

marks omitted). The Tenth Circuit “characterize[s] an

Quern v. Jordan, 440 U.S. at 345, 99 S.Ct. 1139. Additionally, because states have concurrent jurisdiction over § 1983 suits, see Maine v. Thiboutot, 448 U.S. 1, 3 n.1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court has interpreted § 1983 to conclude that states are not persons for § 1983's purposes, see Will v. Michigan Dep't of State Police, 491 U.S. 58, 66-67, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Accordingly, the Eleventh Amendment bars Legacy Church's suit insofar as Legacy Church seeks relief against the State of New Mexico.

injunction as mandatory if the requested relief ‘affirmatively require[s] the nonmovant to act in a particular way, and as a result ... place[s] the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction.’ ” Schrier v. Univ. of Colorado, 427 F.3d at 1261 (all alterations but first in Schrier v. Univ. of Colo.)(quoting O Centro, 389 F.3d at 979). The Tenth Circuit has thus disclaimed -- or at least augmented -- the simpler and more intuitive way of defining these terms, i.e., that a prohibitory injunction is one in which the court orders the enjoined party not to act in some manner, and a mandatory

injunction is one in which the court orders the enjoined party

to act. See Schrier v. Univ. of Co., 427 F.3d at 1261. It does so

because a creative enough lawyer can present any injunction

in either prohibitory or mandatory terms, depending on

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whether the lawyer is requesting or opposing it. See O Centro, 389 F.3d at 1006 (Seymour, J., dissenting)(“There is no doubt that determining whether an injunction is mandatory as opposed to prohibitory can be vexing.”). An injunction directing a party to act is not fundamentally different from an injunction prohibiting action -- if everyone can agree on and understand exactly what the court is ordering and exactly what conduct would violate the injunction. On the other hand, vague injunctions enjoining parties to “depopulate the jail system to constitutionally compliant levels,” or to “perform on its promise to continue manufacturing and delivering conforming goods to the buyer,” are a recipe for bogging the court down into the role of monitor. Dine Citizens Against Ruining Our Env't v. Jewell, No. CIV 15-0209 JB/SCY, 2015 WL 4997207, at *33 (D.N.M. Aug. 14, 2015)(Browning, J.).
[42] Legacy Church's requested injunction is prohibitory rather than mandatory. It seeks an Order that “prohibits the Secretary from now enforcing mass gathering restrictions on places of worship, including Legacy's four New Mexico campuses.” Motion at 11. Were the Court to grant Legacy Church's request, New Mexico would only have to refrain from enforcing the April 11 Order against churches and other places of worship. It would not be ordered to affirmatively act. See Schrier v. Univ. of Colo., 427 F.3d at 1261 (noting that requiring a University to rehire a professor where future monitoring is possible constitutes a mandatory injunction). Granting the injunction would also not require the Court to extensively monitor New Mexico's compliance; enforcement of the April 11 Order is a black-and-white issue that would not require legal review or continuous supervision.
[43] The second disfavored category is “preliminary injunctions that alter the status quo.” Schrier v. Univ. of Colo., 427 F.3d at 1258 (quoting O Centro, 389 F.3d at 977) (internal quotation marks omitted). The status quo is “the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing.” Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001). When evaluating whether the issuance of a requested injunction would alter the status quo between the parties, the court should look at “the reality of the existing status and relationships between the parties, regardless of whether the existing status and relationships may ultimately be found to be in accord or not in accord with the parties' legal rights.” SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1100 (10th Cir. 1991), overruled on other grounds by O Centro, 389 F.3d at 975.

[44] Legacy Church's requested injunction also does not alter the status quo. It asks the Court to forbid New Mexico from enforcing the April 11 Public Health Order, and to effectively return churches and other places of worship to the state of affairs existing under the April 6 Public Health Order. Under the April 6 Order, churches were explicitly excluded from the definition of “mass gathering.” April 6 Order at 4. This is the “last peaceable uncontested status existing between the parties before the dispute developed,” 11A Fed. Prac. & Proc. Civ. § 2948 Grounds for Granting or Denying a Preliminary Injunction, (3d ed.), and granting an injunction to return to it would therefore not alter the status quo, see Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d at 1155.
[45] The third and final disfavored category is “preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.” Schrier v. Univ. of Colo., 427 F.3d at 1258 (quoting O Centro, 389 F.3d at 977)(internal quotation marks omitted). The Tenth Circuit has stated that this sort of preliminary injunction is “similar to the ‘Sentence first -- Verdict Afterwards’ type of procedure parodied in Alice in Wonderland, which is an anathema to our system of jurisprudence.” SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1099 (10th Cir. 1991). See GTE Corp. v. Williams, 731 F.2d 676, 679 (10th Cir. 1984)(stating in a copyright case that, “[t]he burden on the party seeking a preliminary injunction is especially heavy when the relief sought would in effect grant plaintiff a substantial part of the relief it would obtain after a trial on the merits.”).
*30 The injunction Legacy Church seeks would supply it with all the relief could hope to win from a full trial. In the Complaint, Legacy Church asks that the Court declare that the Defendants have unlawfully burdened its constitutional rights, and “[t]emporarily and permanently enjoin[ ] Defendants from prohibiting Plaintiff from physically gathering in its house of worship.” Complaint at 6. It also asks for “costs and reasonable attorneys' fees and expenses,” Complaint at 6, but these are incidental to the injunction as they would not exist on their own without the injunction request. Accordingly, the Court will “more closely scrutinize[ ]” Legacy Church's case “to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 975.
III. THE APRIL 11 ORDER DOES NOT VIOLATE LEGACY CHURCH'S FREE EXERCISE RIGHTS,

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BECAUSE THE ORDER IS A NEUTRAL AND

obligations of almost every conceivable kind.” Smith, 494

GENERALLY APPLICABLE LAW, AND THERE IS

U.S. at 884, 110 S.Ct. 1595.

NO EVIDENCE OF RELIGIOUS ANIMUS.

[46] [47] [48] The Court's analysis is broadly framed Concurring in Lukumi, Justice Scalia elaborated on Smith's

by the fact that, when the state faces a major public health neutrality and general applicability principles:

threat, as New Mexico now does, its Tenth Amendment police and public health powers are at a maximum. “The right to practice religion freely does not include liberty to expose the community ... to communicable disease or the latter to ill health or death.” Prince v. Massachusetts, 321 U.S. at 166-67, 64 S.Ct. 438. Nonetheless, no matter how grave the emergency, individual constitutional freedoms -such as the free exercise of religion, one of the United States' most treasured and closely guarded liberties -- constrain state action. The Court thus examines closely the April 11 Order to deteremine whether it infringes upon Legacy Church's First Amendment Rights. The Court concludes that the April 11 Order does not violate Legacy Church's Free Exercise rights. The April 11 Order is neutral and generally applicable, and important government interests having nothing to do with religion motivate the April 11 Order. Although the April 11 Order's timing concerns the Court -- the April 11 Order prohibited religious gatherings on Easter's eve -- the April 11 Order nonetheless is constitutional, because Secretary Kunkel justifies the April 11 Order without reference to prohibited activity's religious nature. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Similarly, although New Mexico's

The terms “neutrality” and “general applicability” are not to be found within the First Amendment itself, of course, but are used in [Smith] and earlier cases to describe those characteristics which cause a law that prohibits an activity a particular individual wishes to engage in for religious reasons nonetheless not to constitute a “law ... prohibiting the free exercise” of religion within the meaning of the First Amendment. In my view, the defect of lack of neutrality applies primarily to those laws that by their terms impose disabilities on the basis of religion (e.g., a law excluding members of a certain sect from public benefits, cf. McDaniel v. Paty, ..., see Bowen v. Roy, ...; whereas the defect of lack of general applicability applies primarily to those laws which, though neutral in their terms, through their design, construction, or enforcement target the practices of a particular religion for discriminatory treatment, see Fowler v. Rhode Island, 345 U.S. 67 [73 S.Ct. 526, 97 L.Ed. 828] (1953). But certainly a law that is not of general applicability (in the sense I have described) can be considered “nonneutral”; and certainly no law that is nonneutral (in the relevant sense) can be thought to be of general applicability.

process for determining what businesses are essential toes the line of constitutional permissibility, that calculus does not violate Lukumi and Smith, because New Mexico's process does not involve the government's subjective, case-by-case judgment of religious activity's merits, but rather an acrossthe-board prohibition against mass gatherings. See Smith, 494 U.S. at 884, 110 S.Ct. 1595.

*31 Lukumi, 508 U.S. at 557-58, 113 S.Ct. 2217 (Scalia, J., concurring in part and concurring in the judgment, joined by Rehnquist, C.J.). Justice Scalia there criticizes Justice Kennedy's inquiry into lawmakers' subjective intent to determine whether a law is neutral and generally applicable. See 508 U.S. at 557-58, 113 S.Ct. 2217. Justice Scalia added that Smith and the precedent on which it is based focus,

The Court first examines whether the April 11 Order is neutral and generally applicable. If the April 11 Order is non-neutral or not generally applicable, it must serve compelling governmental interests to be valid. See Lukumi, 508 U.S. at 547, 113 S.Ct. 2217. Smith provides that the First Amendment does not require the state to exempt religious practitioners from compliance with an “across-the-board criminal prohibition on a particular form of conduct,” even if sincere religious faith mandates the prohibited conduct. Smith, 494 U.S. at 884, 110 S.Ct. 1595. To hold otherwise -- to allow the religious practitioner veto power on neutral, generally applicable prohibitions -- “would open the prospect

as the primary examination, not on lawmakers' subjective intentions, but rather on the “object of the laws at issue.” Lukumi, 508 U.S. at 558, 113 S.Ct. 2217 (Scalia, J., concurring, joined by Rehnquist, C.J.)(emphasis in original). Justice Kennedy's inquiry into the city-defendant's subjective intent in passing the ordinances at issue in Lukumi thus did not convince a majority of the Supreme Court's justices. See Lukumi, 508 U.S. at 523 n.*, 113 S.Ct. 2217 (“THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join all but Part II-A-2 of this opinion. Justice WHITE joins all but Part II-A of this opinion. Justice SOUTER joins only Parts I, III, and IV of this opinion.”).

of constitutionally required religious exemptions from civic

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The Court nonetheless examines whether the April 11 Order's language and circumstances to determine whether the April 11 Order manifests religious animus. Although such an inquiry did not carry the majority in Lukumi, the Supreme Court's analysis in Masterpiece Cakeshop suggests that lawmakers' religious bigotry or animus may violate the First Amendment, even where an underlying law may be facially neutral and generally applicable. See Masterpiece Cakeshop, 138 S. Ct. at 1731-32. 9 The Court examines first the timeline of events leading up to the April 11 Order. The April 6 Order restricted myriad commercial and secular activity, but permitted religious activity. See April 6 Order ¶ 6, at 5. On April 11, as the COVID-19 crisis continued to escalate, and on Easter's eve, New Mexico rescinded the April 6 Order insofar as it permitted religious services, thus effectively prohibiting in-person Easter services across New Mexico. See April 11 Order ¶ 6, at 5.
Legacy Church does not challenge the April 11 Order as discriminating against Christianity in favor of other religions. Passover began on April 8, 2020, and ends on April 16, 2020. 10 The only Muslim holiday that appears to have occurred during New Mexico's COVID-19 restrictions, and whose celebration Secretary Kunkel permitted, is Lailat Al Miraj, which landed on March 22, 2020. The April 11 Order will restrict, however, services and gatherings in observation of one of Islam's most important months -- Ramadan -- which begins on April 23, 2020. Accordingly, the April 11 Order's mass gathering restrictions burden several different religions and do not shift the burden for its justification to Secretary Kunkel.
The April 11 Order's timing nonetheless troubles the Court. COVID-19 has been an ongoing health emergency in New Mexico for well over a month. The Governor declared a state of emergency on March 11, 2020, the day New Mexico announced its first confirmed COVID-19 case. See FOF ¶ 20, at 5-6. Secretary Kunkel announced further restrictions on mass gatherings on April 6, 2020, two days before Passover began, but permitted religious gatherings. See April 6 Order at 5-6. On the evening of April 11, the night before Easter, Secretary Kunkel removed the exemption for religious services, prohibiting Easter services. The Court notes, however, that the COVID-19 situation had escalated dramatically between April 6 and 11. On April 6th, the state had 685 confirmed cases and twelve deaths. On April 11th, New Mexico had 1,174 confirmed cases, and deaths had more than doubled to twenty-six. See FOF ¶ 52, at 13. On April 10, the state

announced 106 new cases of COVID-19 and two additional deaths. See Albuquerque J., “Coronavirus Updates: April 10”, April 10, 2020, https://www.abqjournal.com/1442108/ coronavirus-updates-april-10.html (last accessed April 15, 2020). On April 11, the state recorded eightysix new cases and an additional death. See Albuquerque J., “Coronavirus Updates: April 11”, April 11, 2020, https://www.abqjournal.com/1442624/coronavirusupdates-april-11.html (last accessed April 15, 2020). Amid this escalation, the Governor sought to justify the restrictions on religious services:
*32 We're incredibly grateful that so many houses of worship already took action of their own .... However, there have been a few outliers, putting New Mexicans at risk. We were hearing additional ones planning on holding services (Sunday) ... and we wanted to be crystal clear.
Albuquerque J., “Coronavirus Updates: April 11.” See FOF ¶ 62, at 15. Secretary Kunkel thus contends that anti-Christian animus does not motivate the April 11 Order's timing, but rather churches' last-minute decisions to hold in-person services despite the escalating public health emergency. This justification is more plausible than the Governor's desire to thwart Christianity's most sacred holiday. As officials received word of churches' plans to push forward, which would lead to dozens of gatherings of dozens, perhaps hundreds of people across the state, the state took action to “be crystal clear” that it viewed mass gatherings as a public health threat. Albuquerque J., “Coronavirus Updates: April 11.” See FOF ¶ 62, at 15. These churches' plans, in Secretary Kunkel's view, endangered public health, not because of their religious nature, but because they involved masses of people in closed spaces and in close proximity. As Secretary Kunkel has asserted a plausible, religion-neutral justification for the April 11 Order's timing, the Court sees no animus or overt discrimination in the April 11 Order's timing.
That Secretary Kunkel appears to have discretion to categorize and recategorize activities as essential or nonessential gives the Court pause. See, e.g., Sherbert v. Verner, 374 U.S. at 401, 83 S.Ct. 1790 (invalidating denial of unemployment benefits where statute allowed officials to evaluate, on a case-by-case basis, whether an

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individual's termination from employment was for “good cause”); Cantwell v. Connecticut, 310 U.S. at 305, 60 S.Ct. 900 (invalidating a statute that prohibited solicitation for religious or charitable causes without a designated official's approval, and authorizing the official to determine whether the cause is genuinely religious or charitable). Secretary Kunkel notes, however, that her categorization has remained largely constant through each public health order. See April 16 Tr. at 26:18-23. Similarly, it should not surprise that each public health order might grow more restrictive as time passes and the pandemic worsens. In other words, mass gatherings and activities involving close physical proximity grow more threatening as COVID-19 spreads through the community. The Supreme Court's cases contemplate, as Free Exercise violations, individualized determinations of what religious activity is preferable or amounts to a good cause, and what religious activity falls short of meriting governmental protection. See Cantwell v. Connecticut, 310 U.S. at 305, 60 S.Ct. 900. Here, religious activity's recategorization did not result from individualized assessment as to whether certain religious activity is more important than other religious activity. Instead, that recategorization resulted from increased danger that some religious activity -- mass gatherings -caused. This is not the kind of individualized assessment that the First Amendment prohibits. Similarly, Secretary Kunkel points out that religious activity's relatively late recategorization stemmed not from hostility toward religion, but rather solicitousness towards religion. Secretary Kunkel sought to preserve religious organizations' leeway to conduct services as long as possible until COVID-19 became too severe to continue affording such latitude.
*33 Legacy Church focuses instead on the April 11 Order's distinction between religious gatherings and secular gathering. Legacy Church contends that the April 11 Order is not neutral, because it
specifically targets houses of worship. The Secretary does not restrict the number of people who may gather at funeral homes, media outlets, and other essential businesses. Walmart, Home Depot, and other big box retailers continue to welcome patrons. Shoppers may roam the aisles of retail establishments with no barriers between them so long as they maintain a distance of six feet from one

another while they purchase house plants, fishing rods and DVDs. The Secretary's treatment of those essential businesses, as well as retailers, shows least restrictive means are available to further the state's public health interest. Defendants, however, chose to specifically target church services and other places of worship, taking them from exempt to banned on a weekend night before Legacy's most important religious holiday.
Motion at 6. Legacy Church also contends that the April 11 Order is not generally applicable, because it is underinclusive with regards to secular conduct that might cause the same harm that the prohibition against religious gatherings is supposed to prevent. See Motion at 7. Legacy Church contends that courts apply strict scrutiny where the government exempts non-religious entities from the burdens associated with government action but withholds such exemptions from religious entities. See Motion at 7. Legacy Church accordingly argues that the April 11 Order is facially discriminatory, and so the Court must subject it to “ ‘the most rigorous scrutiny.’ ” Motion at 6 (quoting Lukumi, 508 U.S. at 546, 113 S.Ct. 2217).
Lukumi's majority opinion incorporates into its holding Smith's dictum that, when the government provides exemptions for secular conduct, it must assert a compelling justification for refusing exemptions for analogous religious conduct. See Lukumi, 508 U.S. at 537, 113 S.Ct. 2217. Lukumi and Smith require the Court, however, to compare analogous exemptions. See Lukumi, 508 U.S. at 538-40, 113 S.Ct. 2217. The April 11 Order does not prohibit religious conduct only; it prohibits a host of secular activities, both commercial and recreational. See April 11 Order at 4-5. Accordingly, to determine the April 11 Order's neutrality, the Court must compare not only the April 11 Order's essentialbusiness exemptions against religious-activity prohibitions, but also its religious-activity prohibitions against its secularactivity prohibitions. See Lukumi, 508 U.S. at 543-45, 113 S.Ct. 2217 (comparing permitted and restricted activity that involves animal slaughter). Framed as such, the April 11 Order is neutral. The April 11 Order severely restricts myriad secular activities. See April 11 Order at 3-6. By omission from its list of essential businesses, the April 11 Order restricts secular gatherings like sporting events, conferences,

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and conventions. See April 11 Order at 3-5 (defining essential Religion Clauses of the First Amendment, 52 U. Pitt. L.

businesses). For example, the April 11 Order maintains the Rev. 75, 78 (1990). See Reynolds v. United States, 98

April 6 Order's closure of non-Indian casinos and horse racing U.S. at 166-67 (noting that, while laws cannot interfere

facilities, directs all non-essential businesses to reduce their with religious belief, “[t]o permit [a religious veto against

in-person staffing by 100 percent, and restricts hotels and generally applicable prohibitions] would be to make the

other lodging operations to twenty-five-percent capacity. See professed doctrines of religious belief superior to the law

April 11 Order ¶¶ 2-6, at 5-6. Nor does the April 11 Order of the land, and in effect to permit every citizen to become

reserve unbridled freedom for secular activities that it deems a law unto himself”). “The government's ability to enforce

essential. See April 11 Order at 6. For example, it allows generally applicable prohibitions of socially harmful conduct,

essential businesses to remain open, “provided they minimize like its ability to carry out other aspects of public policy,

their operations and staff to the greatest extent possible.” ‘cannot depend on measuring the effects of a governmental

April 11 Order at 5-6. It also restricts such businesses to action on a religious objector's spiritual development.’ ”

twenty percent of their maximum occupancies. See April 11 Smith, 494 U.S. at 885, 110 S.Ct. 1595 (quoting Lyng v. Nw.

Order ¶ 4, at 6. The April 11 Order does not impose special Indian Cemetery Protective Ass'n, 485 U.S. at 451, 108 S.Ct.

disability on the basis of religion. Cf. Sherbert v. Verner, 374 1319). First Amendment caselaw thus recognizes and allows

U.S. at 404, 83 S.Ct. 1790 (invalidating statutory scheme that that “[a]ll laws are selective to some extent.” Lukumi, 508

allowed denial of unemployment benefits to an applicant who U.S. at 542, 113 S.Ct. 2217. Instead, the Free Exercise Clause

was terminated from employment for refusing to act contrary “ ‘protect[s] religious observers against unequal treatment,’

to her religion). The April 11 Order, accordingly, is neutral, ” Lukumi, 508 U.S. at 542, 113 S.Ct. 2217 (quoting Hobbie

because its “object is something other than the infringement v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136,

or restriction of religious practices.” Grace United Methodist 148, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987)(Stevens, J.,

Church v. City of Cheyenne, 451 F.3d 643, 649-50 (10th Cir. concurring in judgment)). Impermissible “inequality results

2006).

when a legislature decides that the governmental interests it

seeks to advance are worthy of being pursued only against

*34 The April 11 Order is also generally applicable. Legacy conduct with a religious motivation.” Lukumi, 508 U.S. at

Church contends that the April 11 Order violates the First 543, 113 S.Ct. 2217.

Amendment because it is underinclusive; it exempts certain

secular activities that also entail large gatherings. See Motion Here, Secretary Kunkel may distinguish between certain

at 7. The April 6 Order and the April 11 Order provide a set of classes of activity, grouping religious gatherings in with a

activities that Secretary Kunkel deems essential. See April 6 host of secular conduct, to achieve what she determines

Order at 3-5; April 11 Order at 3-5. Those enterprises include, is a balance between maintaining community needs and

among others, hospitals, farms, media services, funeral protecting public health. Secretary Kunkel does not pursue

homes, automobile and bicycle mechanics, and business that this aim “only against conduct with a religious motivation.”

generate the majority of their revenue by selling “canned Lukumi, 508 U.S. at 543, 113 S.Ct. 2217. Although public

food, dry goods, fresh fruits and vegetables, pet food, feed, health risks may arise in allowing say, Wal-Mart, to continue

and other animal supply stores, fresh meats, fish, and poultry, its operations, the April 11 Order does not leave such business

and any other household consumer products.” April 11 Order untouched. See April 11 Order at 4-5. In furtherance of its goal

at 3-5. Legacy Church contends that the April 11 Order is of minimizing social proximity, the April 11 Order directs

not generally applicable, because it allows “big box retailers all essential businesses to reduce occupancy, enforce social

to continue to welcome patrons” while prohibiting church distancing, and reduce staffing. See April 11 Order at 3-7.

services. Motion at 6.

The April 11 Order reflects Secretary Kunkel's judgment

that certain activities -- namely, large gatherings -- present

[49] [50] Since its earliest decisions addressing religious the greatest risk to public health. See April 11 Order at 2.

freedom, the Supreme Court has recognized that, if religious Accordingly, contrary to Legacy Church's contention, the

conduct is defined broadly enough, and its protections April 11 Order does not irrationally allow mass gatherings in

afforded too much bite against government regulation, retail stores while prohibiting them in churches, mosques, and

“most activities of the modern regulatory state are thrown synagogues. The April 6 Order and the April 11 Order instead

into chaos.” Steven G. Gey, Why is Religion Special: prohibit all mass gatherings, religious and secular alike. See

Reconsidering the Accomodation of Religion under the

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April 6 Order at 5; April 11 Order at 5. The April 11 Order is thus generally applicable.
*35 The Court notes that the Honorable Justin R. Walker, United States District Judge for the United States District Court for the Western District of Kentucky, recently concluded that a similar restriction in Louisville, Kentucky, is unconstitutional. See On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264-JRW, ––– F.Supp.3d ––––, ––––, 2020 WL 1820249, at *6 (W.D. Ky. Apr. 11, 2020)(Walker, J.)(“On Fire Christian Ctr.”). Although important facts differ between that case and this case, the Court respectfully declines to follow Judge Walker's reasoning. In that case, the mayor of Louisville, on the Thursday before Easter Sunday, prohibited religious services, including services in which congregants remained in their cars in church parking lots. See On Fire Christian Ctr., ––– F.Supp.3d at ––––, 2020 WL 1820249, at *4. As Judge Walker put it, “an American mayor criminalized the communal celebration of Easter,” an action that Judge Walker thought would fit right in in a “dystopian novel, or perhaps the pages of The Onion.” ––– F.Supp.3d at ––––, 2020 WL 1820249, at *1. The defendant-Mayor stated that, while he would not use the city's police to enforce the prohibition, police would be present at any services to distribute information about the dangers of social gatherings. See ––– F.Supp.3d at ––––, 2020 WL 1820249, at *4. The plaintiff, a Christian church, sought a temporary restraining order against the Mayor's prohibition. See ––– F.Supp.3d at ––––, 2020 WL 1820249, at *1. Judge Walker noted that “society has the strongest of interests in curbing the growth of a deadly disease,” but concluded that the defendant-Mayor's prohibition violated the Free Exercise Clause “ ‘beyond all question.’ ” ––– F.Supp.3d at ––––, 2020 WL 1820249, at *6 (quoting In re Abbott, 954 F.3d 772, ––––, 2020 WL 1685929, at *7 (5th Cir. 2020)). Judge Walker concluded that the defendant-Mayor's order was neither neutral nor generally applicable, because it prohibited drive-through religious services while permitting, among other activities, drive-through liquor stores or parking in parking lots. See ––– F.Supp.3d at ––––, 2020 WL 1820249, at *6. Judge Walker also determined that the defendant-Mayor's order was both under- and over-inclusive:
They're underinclusive because they don't prohibit a host of equally dangerous (or equally harmless) activities that Louisville has permitted on the basis that they are essential.

Those essential activities include driving through a liquor store's pickup window, parking in a liquor store's parking lot, or walking into a liquor store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is essential, so is Easter.
––– F.Supp.3d at ––––, 2020 WL 1820249, at *7 (internal quotation marks omitted).
Significant factual differences exist between the Louisville Mayor's order and the April 11 Order. As the Court has discussed, the April 11 Order does not permit secular activities analogous to mass gatherings at religious services. See April 11 Order at 3-6. Similarly, the April 11 Order does not specifically prohibit drive-through religious services -and Secretary Kunkel asserts that it does not -- provided that people maintain social distancing. See April 16 Tr. at 32:20-25 (Garcia). Further, Legacy Church requests to undertake church services in a manner that the April 11 Order does not generally permit in secular activity and which Secretary Kunkel has concluded is harmful without regard to its religious nature. Specifically, Legacy Church wishes to invite parishioners to its services. See Complaint ¶ 17, at 3. The Court identifies no analogous secular conduct that the April 11 Order permits -- namely, instances in which secular institutions may invite individuals to witness in person what the institution may broadcast remotely. Further, Judge Walker's injunction applied only to the plaintiff-church's drive-in services. See ––– F.Supp.3d at ––––, 2020 WL 1820249, at *7. Legacy Church requests, however, that “the Court enjoin the Secretary and the State from enforcing the [April 11 Order's] mass gathering restriction of five people or more in a connected space.” Motion at 12. Finally, Judge Walker focused almost exclusively on the defendant-Mayor's permission for liquors to continue operations, including drive-through operations. Judge Walker's analysis thus left unanswered whether the defendant-Mayor's order would be valid if it had also closed liquor stores, and so that Court has difficulty extrapolating Judge Walker's logic and applying it here. The April 6 Order and the April 11 Order permit breweries and distilleries to remain open for curbside carryout services, see April 6 Order ¶ 2.u, at 4, April 11 Order ¶ 2.u, at 4, but both orders omit liquor stores from the list of essential

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businesses, effectively closing them, see April 6 Order at 2-5, See April 16 Tr. at 15:24-16:3 (Hunter). But the Establishment

April 11 Order at 2-5. 11 Accordingly, the April 11 Order presents the reverse situation from the Louisville Mayor's order: in Kentucky, stores remained open, but drive-in church services were prohibited; here, drive-in church services are permitted, but liquour stores are shuttered.

Clause likely prevents the government from picking religious winners and losers. Legacy Church does not assert an Establishment Clause violation, and, likely, such a claim would not be viable. Although there is no definitive test for Establishment Clause violations, the closest thing to it comes from Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct.

*36 [51] [52] The Court also disagrees that strict scrutiny 2105, 29 L.Ed.2d 745 (1971). In that case, the Supreme Court

applies in this case. Legacy Church contends that the concluded that the Establishment Clause requires that laws

April 11 Order is subject to strict scrutiny. As justification, have a secular purpose, that they neither inhibit nor advance

Legacy Church argues that the April 11 Order is not the religion, and that they do not foster excessive entanglement

least restrictive means of achieving what it concedes is with religion. See Lemon v. Kurtzman, 403 U.S. at 612-13,

New Mexico's compelling interest in protecting the public 91 S.Ct. 2105. Other tests have been suggested and discarded

health. See April 16 Tr. at 13:14-17 (Hunter). But the in cases since Lemon v. Kurtzman, such as the test that laws

generally-applicable and neutral standards cannot equal a must not endorse or disapprove of religion, see, e.g., Lynch v.

least-restrictive-means standard, else Smith's rational basis Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604

prescription -- and its “ ‘parade of horribles’ ” that would (1984)(O'Connor, J., concurring), or that government may

result from subjecting generally applicable, neutral laws to not coerce religious orthodoxy or compel financial support

strict scrutiny, see Smith, 494 U.S. at 889 n.5, 110 S.Ct. for particular religions, see, e.g., Lee v. Weisman, 505 U.S.

1595 (quoting Smith, 494 U.S. at 902, 110 S.Ct. 1595 577, 641, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992)(Scalia,

(O'Connor, J., concurring) -- would amount to semantics. J., dissenting). Nonetheless, despite broad disagreement over

Asserting that government action that burdens religions is the Establishment Clause's meaning, Supreme Court justices

subject to rational basis unless it the action is not the least over the years have typically agreed that government may

restrictive means towards achieving the government's stated not pick and choose religious winners and religious losers.

end is a tautology, one that erases the distinction between See, e.g., Van Orden v. Perry, 545 U.S. 677, 685, 125 S.Ct.

the standards of review. The Court's review of governmental 2854, 162 L.Ed.2d 607 (2005)(Breyer, J.); id. at 709-10,

action's constitutionality requires that it apply the correct 125 S.Ct. 2854 (Stevens, J., dissenting)(“The first and most

standard of review, and that application requires criteria fundamental of these principles, one that a majority of

beyond the test that the standard of review prescribes. For this Court today affirms, is that the Establishment Clause

example, strict scrutiny applies when the government, among demands religious neutrality -- government may not exercise

other presumptively impermissible actions, discriminates a preference for one religious faith over another.”); Zelman

on the basis of race, and the Court asks whether that v. Simmons-Harris, 536 U.S. 639, 652, 122 S.Ct. 2460,

discrimination is narrowly tailored after identifying racial 153 L.Ed.2d 604 (2002)(Rehnquist, C.J.); Mitchell v. Helms,

discrimination. See, e.g., Adarand Constructors v. Peña, 515 530 U.S. 793, 809, 120 S.Ct. 2530, 147 L.Ed.2d 660

U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Here, the (2000)(Thomas, J.); Lynch v. Donnelly, 465 U.S. at 688,

April 11 Order is subject to rational basis review unless it 104 S.Ct. 1355 (O'Connor, J., concurring); Everson v. Bd. of

is nonneutral or not generally applicable. As the Court has Ed. of Ewing Twp., 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed.

discussed, the April 11 Order is both neutral with respect to 711 (1947)(Black, J.). Accordingly, were Secretary Kunkel to

religion and generally applicable without regard to religion. determine which religious activity is essential and which is

Accordingly, the April 11 Order is subject to rational basis not -- by, say, determining that Christian churches could hold

review. 12

Easter services but Muslim mosques could not hold Ramadan services -- such an order would violate the Establishment

*37 [53] [54] Legacy Church says that the April 11 Order “discriminates equally against religions across the board.” April 16 Tr. at 15:8-9 (Hunter). Accordingly, instead of arguing that the April 11 Order discriminates against Christianity, Legacy Church argues that, because the April 11 Order broadly categorizes all religious activity as

Clause. While fear of violating the Establishment Clause is not a compelling interest that justifies infringing Free Exercise rights, see McDaniel v. Paty, 435 U.S. at 628-29, 98 S.Ct. 1322, as discussed, the April 11 Order does not run impermissibly infringe upon Legacy Church's Free Exercise rights in attempt to prevent an Establishment Clause violation.

nonessential, the April 11 Order is not generally applicable.

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Instead, the April 11 Order is a neutral, generally applicable rule. 13
*38 As the Supreme Court noted in Smith, the First Amendment does not require the courts to invalidate legislation where courts would prefer more solicitous treatment of religious freedom. See Smith, 494 U.S. at 890, 110 S.Ct. 1595. “But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts.” Smith, 494 U.S. at 890, 110 S.Ct. 1595. The April 11 Order, in short, does not single out religious activity or impose special disability on the basis of religious status and so does not violate Legacy Church's Free Exercise rights. 14
IV. THE APRIL 11 ORDER DOES NOT VIOLATE LEGACY CHURCH'S RIGHT TO FREEDOM OF ASSEMBLY AND EXPRESSIVE ASSOCIATION. [55] The Court concludes that the April 11 Order does not Legacy Church's freedom of assembly right, which it treats as a freedom of expressive association right to accord with Tenth Circuit and Supreme Court caselaw. The April 11 Order is reasonably related to the demands of the public health crisis, coronavirus. Moreover, if the April 11 Order was subject to a strict scrutiny analysis, the Court would conclude that it meets strict scrutiny and uphold the April 11 Order. Thus, the Court concludes that Legacy Church is not likely to win on the merits of its freedom of assembly, or expressive association, claim.
A. LEGACY CHURCH HAS A RIGHT OF EXPRESSIVE ASSOCIATION. *39 [56] Parties bringing an expressive-association claim under the First Amendment must demonstrate that they are asserting their right to associate “for the purpose of engaging in those activities protected by the First Amendment -speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts v. United States Jaycees, 468 U.S. at 618, 104 S.Ct. 3244. The Tenth Circuit recognizes religious gatherings in which individuals come together “ ‘for the purpose of engaging in ... religious activities,’ ” see Grace United Methodist Church v. City of Cheyenne, 451 F.3d at 658 (quoting Bd. of Dirs. v. Rotary Club of Duarte, 481 U.S. at 544, 107 S.Ct. 1940), as an activity protected by the First Amendment. Legacy Church, Inc. wants the Court to allow members of its congregation, technical team, and

staff to come together to “conduct[ ] services in accordance with its sincerely held religious beliefs.” Motion at 3. Thus, Legacy Church, Inc. is asserting its right to associate for the purpose of engaging in religious exercise, which is an activity protected by the First Amendment.
B. THE APRIL 11 ORDER IS NOT ONLY IS RATIONALLY RELATED TO PUBLIC HEALTH DURING A TIME OF PUBLIC HEALTH CRISIS, BUT IT IS ALSO NARROWLY TAILORED TO MEET A COMPELLING GOVERNMENT INTEREST. [57] The right to expressive association is not an absolute right and can be infringed upon if that infringement is (i) unrelated to the suppression of expressive association; (ii) due to a compelling government interest; and (iii) narrowly tailored. See Roberts v. United States Jaycees, 468 U.S. at 623, 104 S.Ct. 3244. The Court first concludes that New Mexico's infringement on Legacy Church's right to expressive association is not related to the suppression of Legacy Church's expression of its ideas. There is no doubt that the April 11 Order infringes on the right of Legacy Church to gather together to exercise their right of expressive association -- the April 11 Order, which New Mexico announced only a day “before Legacy's most important religious holiday,” Motion at 6 restricts the manner in which Legacy can worship. When announcing the April 11 Order, Governor Lujan Grisham noted that the April 11 Order, which includes the restriction on number of individuals at a gathering, would place a “tremendous social and spiritual burden ... on New Mexicans.” Press Release, Mass gathering ban expanded to include houses of worship, Office of the Governor of the State of New Mexico, https://www.governor.state.nm.us/2020/04/11/massgathering-ban-expanded-to-include-houses-of-worship/ (last visited April 15, 2020)(“Press Release”). Legacy Church's right to assemble may not have been eviscerated, because it still can assemble virtually or in cars, but the manner in which it can assemble is restricted. But see Irshad Learning Ctr. v. Cty. of DuPage, 804 F.Supp. 2d 697, 718 (N.D. Ill. 2011)(Pallmeyer, J.)(“The First Amendment right to freedom of association, however, is not abridged merely because a religious group cannot assemble at a particular location of property.”). There is also no doubt, however, that New Mexico did not impose the April 11 Order to suppress the ideas Legacy Church wished to express during its Easter service gathering. Legacy Church does not contend that the April 11 Order's purpose was to suppress their message. See Motion at 7 (“Plaintiff does not dispute that

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the state has a compelling governmental interest in its response to COVID-19.”). The April 11 Order's purpose is to “further restrict business operations and public gatherings to mitigate the spread of the Novel Coronavirus Disease 2019.” April 11 Order at 1. Moreover, with the April 11 Order's announcement, New Mexico joined twenty-eight other states whose stay-at-home orders did not exempt religious gatherings from their restrictions on group-meeting size. See Press Release. The Court would be concerned if, unlike twenty-eight other states, New Mexico implemented its order to suppress religious houses' expressive association. The Court concludes that New Mexico's interest in the April 11 Order was unrelated to the suppression of religious expression.
*40 As discussed supra, a global pandemic and its local outbreak amount to a compelling state interest. Thus, the Court must determine whether the infringement is narrowly tailored. See Roberts v. United States Jaycees, 468 U.S. at 623, 104 S.Ct. 3244. Legacy Church suggests that the restriction is not narrowly tailored for two reasons: (i) a less restrictive alternative is available in which Legacy Church requires the members of its congregation that attend services to stay at a physical distance from each other; and (ii) New Mexico permits “commercial shoppers and others” to gather despite ordering churches to stop hosting gatherings. Motion at 9. Neither of these arguments is compelling.
First, the proffered “less restrictive” alternative in which congregation members attend services but stay physically distant from each other does not further the compelling state interest in escalating social distancing measures to mitigate COVID-19. Motion at 9. In its March 23, 2020 order, the State of New Mexico ordered all essential businesses exempt from the stay-at-home order to “adhere to social distancing protocol and maintain at least a six-foot social distancing from other individuals [and] avoid person-to-person contact.” March 23 Order at 4. Although the physical distancing likely helped mitigate the initial spread of disease, under these measures the number of deaths still doubled. If applied to houses of worship, this physical-distancing restriction, under which the death rate doubled in four days, may not advance mitigation efforts further, but instead merely sustain them. With the number of deaths in New Mexico almost doubling between the April 6 Order and the April 11 Order, it is reasonable that New Mexico and the Secretary would escalate social distancing measures. 15 The Court concludes, therefore, that applying social distancing measures that were unable to contain the drastic increase in New

Mexico COVID-19 cases is not a less restrictive alternative to the cap on gatherings, because it would sustain, rather than increase, New Mexico's social distancing measures. See Burson v. Freeman, 504 U.S. 191, 206, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)(concluding, in a case about restricted zones around voting areas, that the law does not require the government to select a less restrictive alternative that “fall[s] short of serving a State's compelling interests”).
The Court further concludes that Legacy Church's argument that the restriction is underinclusive, because it does not ban mass gatherings at essential businesses, incorrectly equates its religious services, 16 with the essential businesses that are permitted to stay open. Legacy Church specifically draws attention to the following businesses that are permitted to stay open: media outlets, Home Depot, Wal-Mart, grocery stores, automobile repair shops, and funeral homes. See Motion at 2, 6, 9. Each and every business mentioned by Legacy Church either sells items necessary for everyday life or to facilitate the mitigation of COVID-19. While, as Legacy Church noted, some people may take advantage of the exemption and purchase frivolous items, these are open for good New Mexico citizens to use them judiciously. As the Secretary Kunkel noted, Home Depot sells items for emergency home repairs, as does Wal-Mart. See Secretary Response at 6 n.9. Wal*mart also sells thermometers, acetaminophen, and food. Grocery stores, obviously, sell food. All these stores facilitate the purchase of necessary items that help treat ill individuals who are staying at home, or that make a house habitable, or that feed people so they can stay alive. And, of course, people will continue to die, because of COVID-19. Although the Court wishes that it could pretend these deaths would not occur, it recognizes that as long as people die, “funeral homes, crematoriums, and cemeteries” will need to stay open to take care of and give dignity to the deceased. Further, in contrast to Legacy Church's contention, nothing in the April 11 Order suggests that funeral homes can host mass gatherings. See April 11 Order at 6. Automobile repair shops are necessary so that essential workers -- emergency room physicians, grocery store workers, police officers – will be able to work on the frontlines unhampered by a broken engine. Finally, media services permit the dissemination of crucial COVID-19-related information to citizens. Secretary Kunkel has deemed these entities essential, and the Court is not in a position to second-guess expert decisions on which restrictions will be most effective at saving lives during an epidemic when those restrictions are based not on suppression of religion but suppression of a epidemic. See In re Abbott, 954 F.3d at ––––, 2020 WL 1685929, at *1 (quoting

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Jacobson v. Massachusetts, 197 U.S. at 30, 25 S.Ct. 358). The Court recognizes that, to many individuals, religious worship is equally essential and important to life. See Las Cruces Resumes Public Mass Article (quoting Las Cruces Bishop Peter Baldacchino as saying that “while we run a daily count of the physical deaths, we are overlooking those who are dead interiorly.”). Importantly, however, none of the April 11 Order's listed essential businesses can operate remotely, while religious services can be broadcast to congregation members. The broadcast, of course, may be dissatisfying for some parishioners, but they will still be able to access the services remotely, regardless of their satisfaction. The entities that Legacy Church named are not comparable to houses of worship; all of these services are necessary to everyday life and to fighting the epidemic, and none of these services can be done remotely, in contrast to religious worship, which, while important, does not facilitate survival of the public and has the ability to be conducted remotely.

in services”). Lukumi, 508 U.S. at 522, 113 S.Ct. 2217. Presumably, based on the Secretary's Response, Legacy Church can still assemble for worship services, albeit in their cars in a parking lot. Thus, the Court concludes that Legacy Church likely will not succeed on the merits for its freedomof-assembly claim.
The Court need not even go so far to determine that Legacy Church will not succeed on the merits. The Supreme Court has a “settled rule,” In re Abbott, 954 F.3d at ––––, 2020 WL 1685929, at *1, that “under the pressure of great dangers,” constitutional rights may be restricted “as the safety of the general public may demand.” 197 U.S. at 29, 25 S.Ct. 358. Thus, because the Court has determined that the April 11 Order meets strict scrutiny, the Court concludes that it also meets this lesser standard of being related to the safety of the general public.

*41 Moreover, religious organizations have received preferential treatment relative to their closest comparators -in terms of physical set-up and risk, not necessarily meaning. Movie theatres and concert halls are spaces where people gather and sit together for a period of time similar to Legacy Church's auditorium. On March 23, New Mexico shuttered movie theatres and concert halls See Secretary Response at 8 (citing March 23 Order at 3-4). Meanwhile, places of worship were kept open, perhaps because New Mexico acknowledge religious worship's importance to many individuals. Cf. Swanson By & Through Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 702 (10th Cir. 1998)(stating that the Free Exercise Clause provides protection, not special treatment)(citing Snyder v. Murray City Corp., 124 F.3d 1349, 1353 (10th Cir. 1997). Thus, the April 11 Order is not underinclusive even though it has different restrictions for places of religious worship than it does for essential services necessary for everyday life and survival that cannot be done remotely. Yellowbear v. Lampert, 741 F.3d 48, 60 (10th Cir. 2014)(stating that a law is underinclusive when it “fail[s] to cover significant tracts of conduct implicating the law's animating and putatively compelling interest”).
Nor is the April 11 overbroad. It allows Legacy Church and other religious organizations to broadcast services. See April 11 Order at 6. It does not mention a ban on drivethrough services. See April 11 Order at 6. See also Secretary Response at 2 (stating that the Order “has been specifically tailored to allow [places of worship] to provide services to their congregants via electronic means or through drive-

IV. OTHER FACTORS IN THE PRELIMINARY INJUNCTION ANALYSIS DO NOT WEIGH IN LEGACY CHURCH'S FAVOR. Legacy Church has not established a likely success on the merits of its First Amendment claims. It must also show that it will suffer irreparable harm without the temporary restraining order, that the balace of equities weighs in its favor, and that the restraining order is in the public interest. See Winter v. Nat. Res. Def. Council, 555 U.S. at 20, 129 S.Ct. 365. Without showing a likely success on the merits, Legacy Church is unable to show any of the remaining three factors support a temporary restraining order.
A. THE ORDER DOES NOT IRREPARABLY HARM LEGACY CHURCH. Legacy Church first argues that it faces irreparable harm, because “ ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Motion at 9 (quoting Heideman v. S. Salt Lake City, 348 F.3d at 1190 (emphasis in Motion but not in Heideman v. S. Salt Lake City)). Legacy Church also argues that the state's threatened actions “will deny Legacy and its members the right to practice their faith as they feel compelled to practice,” and “prohibit Legacy from carrying out its religious mission in accordance with the manner dictated by their strictly held religious belief.” Motion at 10.
The Court has concluded above that Legacy Church is unlikely to succeed in showing that Kunkel violated its First Amendment rights. The Tenth Circuit has not spoken

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clearly to the effect of concluding that a movant is not likely to succeed on the merits. It has stated, for example, that “when an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary,” suggesting that merely alleging a constitutional violation satisfies the irreparable harm factor per se. Planned Parenthood Ass'n of Utah v. Herbert, 828 F.3d 1245, 1263 (10th Cir. 2016)(citing Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed. 1995)). See O Centro Espirita Beneficiente Uniao Do Vegetal Ashcroft, 342 F.3d 1170, 1187 (10th Cir. 2003)(“Because ‘a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA,’ we conclude the irreparable harm requirement for a preliminary injunction is satisfied.” (quoting Kikumura v. Hurley, 242 F.3d at 963)).
*42 On the other hand, in a 2013 case, Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), aff'd sub nom. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), the Tenth Circuit characterized its precedent as holding “that establishing a likely RFRA violation satisfies the irreparable harm factor.” 723 F.3d at 1146 (emphasis added)). Several other courts appear to require a plaintiff to allege a likelihood of success on the merits before concluding that it has shown irreparable harm. See, e.g., Powell v. Noble, 798 F.3d 690 (8th Cir. 2015)(concluding that the plaintiff did not show irreparable harm where he did not show that his First Amendment rights were violated); Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989)(“[T]he assertion of First Amendment rights does not automatically require a finding of irreparable injury .... Rather the plaintiffs must show ‘a chilling effect on free expression.’ ” (quoting Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)); Myers v. Gant, 49 F. Supp. 3d 658, 668 (D.S.D. 2014)(Piersol, J.) (“Once a constitutional injury has been demonstrated, the Court assumes that Myers has satisfied the irreparable harm prong.”). The Tenth Circuit has also reversed district courts for failing to consider how the movant's likelihood of success affects the other three preliminary injunction factors. See Derma Pen, LLC v. 4EverYoung Ltd., 773 F.3d 1117, 1121-22 (10th Cir. 2014); Amoco Oil Co. v. Rainbow Snow, 748 F.2d 556, 559 (10th Cir. 1984).
The United States Court of Appeals for the District of Columbia indirectly addressed this issue in Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006). It distinguished conflicting caselaw in the area as

it noted that, although in freedom-of-expression cases, the plaintiffs must “also establish they are or will be engaging in constitutionally protected behavior to demonstrate that the allegedly impermissible government action would chill allowable individual conduct,” 454 F.3d at 301, the law does not impose the same requirement when alleging Establishment Clause violations, because the constitutional violation occurs at the moment the government acts “without any concomitant protected conduct on the movants' part,” 454 F.3d at 302. The D.C. Circuit noted that irreparable harm analysis assumes that the movant has demonstrated a likelihood that the non-movant violated the law and only asks whether “that violation, if true, inflicts irremediable injury.” 454 F.3d at 303 (citing Elrod v. Burns, 427 U.S. at 373, 96 S.Ct. 2673).
[58] Winter v. Natural Resources Defense Council supersedes the D.C. Circuit's analysis. The Supreme Court stated that the preliminary injunction standard “requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction” and that “[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. at 22, 129 S.Ct. 365 (citing Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997))(emphasis in original). The Supreme Court's reasoning, therefore, suggests that courts should interpret the “irreparable harm” factor in conjunction with whether the movant is likely to succeed on the merits. See also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d at 1145 (“In addition, ‘in First Amendment cases, the likelihood of success on the merits will often be the determinative factor.’ ” (quoting ACLU of Illinois v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012)). This test has entirely reversed course from earlier Tenth Circuit doctrine that allowed movants to make a lesser showing of their likely success when the other preliminary injunction factors strongly weighed in their favor. See Dine Citizens Against Ruining Our Environment v. Jewell, 839 F.3d 1276 (10th Cir. 1276)(overruling Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002)); Dine Citizens Against Ruining Our Environment v. Jewell, No. CIV 15-0209 JB/SCY, 2015 WL 4997207, at *35-38 (D.N.M. Aug. 14, 2015)(Browning, J.).
*43 [59] The harms Legacy Church alleges are incapable of calculation and not redressable with money damages,

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but are also not likely to rise to constitutional violations. Without a constitutional violation to point to, Legacy Church has not presented “actual or significant” injury. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1267 (10th Cir. 2005). The Court concludes, therefore, that the church has not demonstrated that “irreparable injury is likely in the absence of an injunction,” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. at 22, 129 S.Ct. 365 (emphasis in original).
B. THE BALANCE OF EQUITIES WEIGHS IN NEW MEXICO'S FAVOR. [60] The third factor to consider is whether the “balance of equities tips in [the movant's] favor.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. at 20, 129 S.Ct. 365. In analyzing whether a movant satisfies this fact, he or she must show that the “threatened injury outweighs any injury to [non-movants] caused by granting the injunction.” Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012). Legacy Church relies on its claims' constitutional nature; it argues that the balance of equities weighs in its favor, because “[w]here the government's perception of harm is speculative and when the state permits the same speculative harm in other places, as it does here, such speculative harm cannot outweigh an injury to the First Amendment rights of plaintiffs who have established a substantial likelihood of success on the merits.” Motion at 10. It argues that the Defendants “will not suffer more than speculative harm if an injunction is granted, and the Plaintiffs will suffer certain harm in the absence of injunctive relief.” Motion at 11. Finally, it asserts that the Court should presume that the balance of harms weighs in its favor, because it has raised First Amendment issues. See Motion at 11 (citing Sammartano v. First Judicial District Court, 303 F.3d 959, 973 (9th Cir. 2002).
New Mexico's Secretary of State argues that there is nothing speculative “about the harms caused by COVID-19” and “the possibility of substantially increasing the number of infections through public gatherings simultaneously bringing together hundreds of people in a public space.” Motion at 14-15. The Secretary of State instead argues that Legacy Church's asserted injuries are speculative, because it “has never received a citation under a public health order or otherwise been prevented from delivering religious services to its congregants.” Motion at 15.
[61] As in the irreparable harm analysis, district courts in the Tenth Circuit must consider the likelihood of success when analyzing potential harm. See Planned Parenthood Ass'n of Utah v. Herbert, 828 F.3d at 1265 (“The threshold, and

ultimately critical, flaw in the district court's [balance of equities] analysis is that it failed to take into account PPAU's likelihood of success on the merits of its unconstitutional conditions claim and the resulting likelihood of irreparable harm to PPAU.”). In First Amendment cases in the Tenth Circuit, likelihood of success on the merits “will often be ... determinative” in this analysis. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d at 1145 (citing Awad v. Ziriax, 670 F.3d at 1114). The Court has already concluded that Legacy Church is not likely to succeed on the merits of its First Amendment claims, and Legacy Church framed the harms it suffered for this fact exclusively in terms of a First Amendment violation. Without a likely First Amendment violation, Legacy Church has alleged no harm. New Mexico's stated harms -- a potential escalation in COVID-19 cases are not insignificant. Accordingly, when weighed against each other, the balance of equities favors New Mexico.
C. THE PUBLIC'S INTEREST IN DENYING THE PRELIMINARY INJUNCTION IS STRONG. *44 [62] [63] The last issue to consider is whether the preliminary injunction is in the public's interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. at 20, 129 S.Ct. 365. This factor “is another way of inquiring whether there are policy considerations that bear on whether the order should issue.” 11A Fed. Prac. & Proc. Civ., § 2948.4 Grounds for Granting or Denying a Preliminary Injunction -- Public Interest, (3d ed.). Legacy Church argues that an injunction is in the public's interest, because the Tenth Circuit “recognizes that ‘[v]indicating First Amendment freedoms is clearly in the public interest.’ ” Motion at 11 (quoting Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) and citing Utah Licensed Bev., 256 F.3d 1061, 1076 (10th Cir. 2001); Elam Constr., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1347 (10th Cir. 1997)). Legacy Church also argues that its “religious exercise and the right to assemble -- and the rights of others like them in the State of New Mexico -- are burdened beyond the narrowly tailored means the Constitution requires.” Motion at 11. New Mexico argues in response that the state is “in the midst of a public health crisis of a scale and severity unprecedented in modern times,” and that “the most potent weapon that the State and local communities can wield against this significant health threat is through individuals choosing to stay in their homes as much as possible and avoiding physical proximity to other people and to public spaces.” Motion at 16.
[64] [65] In evaluating the public's interest, the Court must consider whether the movant has demonstrated a likelihood

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of success on the merits. Planned Parenthood Ass'n of Utah v. Herbert, 828 F.3d at 1265-66. Where a movant has demonstrated that the non-movant has violated the law, Coal. of Concerned Citizens To Make Art Smart v. Fed. Transit Admin. of U.S. Dep't of Transportation, 843 F.3d 886, 915 (10th Cir. 2016), or constitutional rights, Verlo v. Martinez, 820 F.3d 1113, 1127-28 (10th Cir. 2016), the public interest weighs in favor of granting an injunction. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d at 1147. Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)(stating that “ ‘it is always in the public interest to prevent the violation of a party's constitutional rights.’ ” (quoting G & V Lounge, Inc. v Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994)). Again, Legacy Church relies on vindicating its constitutional rights as the interest at stake. See Motion at 11. Had it demonstrated likely success on the merits of its constitutional claims, Legacy Church could point to weighty public interests that could overcome the public's interests in enforcing social distancing. It has not demonstrated likely success, however. Without a constitutional right to rely on, Legacy Church must therefore rely on the public interest inherent in bringing

together members and staff within its doors, and in this light, the law views Legacy Church's Easter service as just another gathering with as much right to protection as any other. The public's interest in limiting the COVID-19 outbreak in the state, a compelling interest, outweighs the right to gather. As this factor and the three discussed before all weigh in favor of the Defendants and against Legacy Church, the Court will not grant the requested relief.
IT IS ORDERED that (i) the Plaintiff's Complaint, Requrest for Temporary Restraining Order, and Permanent Injunction, filed April 11, 2020 (Doc. 1), is dismissed as to Defendant State of New Mexico; and (ii) the Verified Emergency Motion for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunctive Relief, April 14, 2020 (Doc. 9), is denied.
All Citations
--- F.Supp.3d ----, 2020 WL 1905586

Footnotes

1

The Motion's pages 14 and 15 contain the Smothermon Decl.

2

The Complaint's Exhibit A is a copy of the April 6 Order. See Complaint at 7-14.

3

The Complaint's Exhibit B is a copy of the April 11 Order. See Complaint at 15-22.

4

The Court's citations to the transcript of the hearing refer to the court reporter's original, unedited version. Any final

transcript may contain slightly different page and/or line numbers.

5

The Court's citations to the transcript of the hearing refer to the court reporter's original, unedited version. Any final

transcript may contain slightly different page and/or line numbers.

6

Santería, or la Religión Lucumí, is a pantheistic Afro-Cuban religion developed from the beliefs and customs of the

Yoruban peoples of West Africa, who were brought to Cuba as slaves, and which incorporates some elements of

Catholicism. See Encyclopaedia Britannica, “Santería,” https://www.britannica.com/topic/Santeria (last accessed April

16, 2020). The name “Santería” derives from the belief in communications between Yoruban Yoruba deities -- called

orishas -- and Roman Catholic saints. See Encyclopaedia Britannica, “Santería.” Santería religious practice involves

developing personal relationships with these divinities and saints through divination, sacrifice, and initiation, well as

mediumship between Santería adherents and the orisha deities, who protect the adherents and give guidance, wisdom,

and success. See Encyclopaedia Britannica, “Santería.”

7

The Tenth Circuit uses different terminology for expressive association in different cases. In Grace v. United Methodist

Church v. City of Cheyenne, 451 F.3d 643, 658 (2006), and Schalk v. Gallemore, 906 F.2d 491, 499 (1990), the Tenth

Circuit appears to label “freedom of association” as “freedom of expressive association,” which it breaks down into

“intimate association” and “political association.” What it calls “political association” is actually “expressive association.”

It corrects the labels in Vigil v. South Valley Academy, 247 F. App'x 982, 988 (10th Cir. 2007)(unpublished)(“treating

the “freedom of expressive association” and “the right to familial association” as two separate freedoms, as opposed to

treating the right of familial association as a subtype of freedom of expressive association). The Court relies on this case

for the appropriate labels, because it accords with generally accepted terms. John D. Inazu, The Unsettling “Well-Settled”

Law of Freedom of Association, 43 Ct. L. Rev. 149, 149 (2010)(noting that the Supreme Court stated two categories --

expressive association and intimate association – in Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244,

82 L.Ed.2d 462 (1984)).

8

Professor Eugene Volokh has noted that:

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[i]n addition to the general First Amendment expressive association right that [Boy Scouts of Am. v.] Dale recognized,

religious groups might have a special “freedom of religious association” right under the Free Exercise Clause. This

could either be a narrow church autonomy right recognized even after Employment Division v. Smith, 494 U.S. 872, 110

S.Ct. 1595, 108 L.Ed.2d 876 (1990), see Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA

L. Rev. 1465, 1506-07 (1999)(so suggesting), or a “hybrid” of the expressive association right and the Free Exercise

Clause right, compare Smith, 494 U.S. at 881-82, 110 S.Ct. 1595 (so suggesting), with Kissinger v. Bd. of Trs. of the

Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993) (criticizing the hybrid rights doctrine, in my view persuasively), Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)(Souter, J.,

concurring) (likewise), and Bertrand Fry, Note, Breeding Constitutional Doctrine: The Provenance and Progeny of the

“Hybrid Situation” in Current Free Exercise Jurisprudence, 71 Tex. L. Rev. 833 (1993)(likewise).

Eugene Volokh, Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919, 1968 (2006)

9

The Court notes that, while Lukumi provides that courts subject nonneutral laws to strict scrutiny, see Lukumi, 508

U.S. at 546, 113 S.Ct. 2217, nowhere is such an analysis found in Justice Kennedy's opinion for the Supreme Court in

Masterpiece Cakeshop. After concluding that the defendant Colorado Civil Rights Commissioner's comments expressed

hostility to religion, Justice Kennedy concluded that the defendant's actions violated the plaintiff's Free Exercise rights

without any strict scrutiny analysis. See 138 S. Ct. at 1731-32.

10 The Court notes that the April 6 Order permitted celebration and gatherings in observance of two Seders, which occurred

on April 8 and 9, 2020.

11 Althougn not necessary for the Motion's purposes, the Court notes that the sale of alcohol may rationally be deemed

essential as necessary to prevent death from sudden alcohol withdrawal. See Scientific American, “Yes, Liqour Stores are

Essential,” April 7, 2020, https://blogs.scientificamerican.com/observations/yes-liquor-stores-are-essential-businesses/

(last accessed April 17, 2020)(“Because so few people have access to medications for [alcohol use disorder], access

to alcohol becomes a matter of life or death”).

12 Even if strict scrutiny were applicable, the April 11 Order is constitutional. To satisfy strict scrutiny, Secretary Kunkel

must demonstrate that the April 11 Order is narrowly tailored to further a compelling government interest. See Grace

United Methodist Church v. City of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006). Typically, “ ‘a law cannot be regarded

as protecting an interest of the highest order ... when it leaves appreciable damage to that supposedly vital interest

unprohibited.’ ” Lukumi, 508 U.S. at 520, 113 S.Ct. 2217 (quoting Florida Star v. B.J.F., 491 U.S. 524, 541-542, 109

S.Ct. 2603, 105 L.Ed.2d 443 (1989)(Scalia, J., concurring in part and concurring in judgment)). Here, Legacy Church

concedes “without question” that the April 11 order furthers a compelling governmental interest. See April 16 Tr. at 6:5-8

(Hunter). The Court agrees. When “faced with a society-threatening epidemic,” In re Abbott, 954 F.3d at ––––, 2020

WL 1685929, at *7, state governments, pursuant to their Tenth Amendment police and public health powers, have an

interest of the highest order in taking measures to protect the populace. See, e.g., C. M. v. Urbina, 640 F. App'x 825,

831 (10th Cir. 2016)(unpublished). “The right to practice religion freely does not include liberty to expose the community

... to communicable disease or the latter to ill health or death.” Prince v. Massachusetts, 321 U.S. 158, 167, 64 S.Ct.

438, 88 L.Ed. 645 (1944).

The April 11 Order is narrowly tailored. First, the April 11 Order does not restrict religious activity beyond what is necessary

to achieve this compelling interest. Secretary Kunkel interprets the April 11 Order as allowing religious organizations like

Legacy Church to broadcast their services to followers via the internet and over television. See April 16 Tr. at 26:3-11.

Legacy Church is thus free to staff its services to the extent needed to worship and broadcast its worship.

Regarding its categorization of essential and nonessential enterprises, the April 11 Order does not leave “appreciable

damage to [this] vital interest unprohibited.” Lukumi, 508 U.S. at 520, 113 S.Ct. 2217. First, there is no exempted activity

analogous to religious mass gatherings. Although, as Legacy Church points out, the April 11 Order classifies a range of

activity as essential, it does not leave that activity unregulated. Instead, the April 11 Order restricts essential businesses

to the greatest extent possible while still leaving those businesses practicable. See April 11 Order at 4-5. Further, those

activities are unique in that, unlike Legacy Church's services, they cannot be conducted remotely. To name a few

examples, grocery store cashiers and baggers cannot do their jobs, and farmers cannot grow their crops, via teleworking.

That the April 11 Order permits some enterprises to carry on -- albeit subject to restrictions -- does not render the April

11 Order too loosely restrictive. The government need not choose between doing nothing in the face of a pandemic and

closing all of society. It may choose a middle ground, provided that it does so “ ‘without reference to the content of the

regulated” activity. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)(quoting

Va. Pharmacy Bd. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)).

The April 11 Order satisfies that test. It prohibits mass gatherings without reference to those gatherings' content. In other

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words, the April 11 Order prohibits in-person religious services not because of those services' religious nature, but rather because those services entail bringing large groups of people into close proximity -- precisely the environment in which a highly contagious disease proliferates. Accordingly, even if the April 11 Order were subject to strict scrutiny, Legacy Church is nonetheless unlikely to succeed on its Free Exercise claim's merits.
13 Although Legacy Church does not assert a hybrid-rights entitlement to strict scrutiny -- Legacy Church does not cite
Smith in the Complaint or in the Motion -- the Court pauses to note that such an assertion would not be viable. In Smith, Justice Scalia attempted to distinguish Wisconsin v. Yoder and West Virginia Board of Education v. Barnette, among other cases, by asserting that those cases involved special solicitousness to the plaintiffs' claims because the plaintiffs asserted multiple constitutional rights. See 494 U.S. at 880-81, 110 S.Ct. 1595. Critics have panned the hybrid-rights theory, arguing, for example, that Justice Scalia's “use of precedent borders on fiction.” William P. Marshall, Correspondence on Free Exercise Revisionism; In Defense of Smith and Free Exercise Revisionism, 58 U. CHI. L. REV. 308, 309 (1991). The Court agrees that, at least in some of the precedent that Justice Scalia cites in support of the hybrid-right theory, those cases contradict Justice Scalia's explanation. In Wisconsin v. Yoder, for example, the Supreme Court held that parents who belonged to the Old Order Amish faith have a constitutional right to withdraw their fourteen and fifteenyear old children from school despite a state statute compelling school attendance until the age of sixteen. See 406 U.S. at 210, 92 S.Ct. 1526. The Supreme Court thus extended First Amendment protections to the broader, perhaps secular, consequences of the plaintiffs' faith. The Supreme Court noted that the Old Order Amish “religion pervades and determines the entire mode of life of its adherents,” and imbued with constitutional significance the plaintiffs' refusal to educate their children beyond the eighth grade. 406 U.S. at 210, 92 S.Ct. 1526. The Supreme Court also expressly refused to extend such protection to hypothetical plaintiffs whose refusal is based on political or other secular considerations. See 406 U.S. at 215, 92 S.Ct. 1526 (“A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.”). Accordingly, Wisconsin v. Yoder does not involve broad parental rights to “direct the education of their children,” Smith, 494 U.S. at 881, 110 S.Ct. 1595, but rather the narrower concept of “parental control over the religious upbringing and education of their minor children,” Wisconsin v. Yoder, 406 U.S. at 231, 92 S.Ct. 1526. Further, as Justice Douglas pointed out in his dissent in Wisconsin v. Yoder, the only testimony regarding the children's wishes showed that the children did not want to stay in school. See Yoder, 406 U.S. at 211, 92 S.Ct. 1526; id. at 241-42, 92 S.Ct. 1526 (Douglas, J., dissenting in part). The parents, as criminal defendants, thus asserted their children's free exercise rights, rather than their broader rights to direct their children's upbringing: “Our holding in no way determines the proper resolution of the competing interests of parents, children, and the State ....” Wisconsin v. Yoder, 406 U.S. at 231, 92 S.Ct. 1526. Similarly, the language from Cantwell v. Connecticut that Justice Scalia cites in support of the hybrid-rights theory involved the Supreme Court's treatment of the plaintiff's second, separately asserted right. See Smith, 494 U.S. at 881 n. 1, 110 S.Ct. 1595 (citing Cantwell v. Connecticut, 310 U.S. at 307, 60 S.Ct. 900. The hybrid-rights theory also presents functional problems, such as whether the theory requires independently viable rights, or whether it somehow operates to produce a whole greater than its parts. Neither approach is tenable. First, if asserting multiple rights creates greater protections than individual rights on their own, then Smith's ruling itself would not make sense. As Justice Souter noted, concurring in Lukumi, if the hybrid-rights exception requires implication of multiple, although not independently viable, rights, then the exception would “swallow the Smith rule,” because the Smith plaintiffs' asserted activity involved religious and associational rights. Lukumi, 508 U.S. at 567, 113 S.Ct. 2217 (Souter, J., concurring). As the United States Court of Appeals for the Third Circuit noted in Salvation Army v. Department of Community Affairs, 919 F.2d 183, 185 (3d Cir. 1990), associational freedom derives from either the expression of ideas or the exercise of religion. See 919 F.2d at 199. Those two rights, the Third Circuit commented, involve “different contours.” 919 F.2d at 199. As the Third Circuit explained, “[w]e would not expect a derivative right to receive greater protection than the right from which it was derived.” 919 F.2d at 199. Alternatively, if a hybrid claim is one in which in which the plaintiff must assert an additional, independently viable right, then the Free Exercise right becomes superfluous, and the hybridrights theory produces no different outcome than the plaintiff would otherwise wholly receive on the alternative right. See Lukumi, 508 U.S. at 567, 113 S.Ct. 2217 (Souter, J., concurring). Here, because the Court concludes that neither of Legacy Church's asserted rights are independently viable, only the former approach could potentially save Legacy Church's claims. But, as discussed, if two separate and independently unviable rights did not win the day for the Smith plaintiffs, Legacy Church's Free Exercise and Assembly rights, working together, do not compel a different result than either produces independently. Accordingly, were Legacy Church to assert a hybrid-rights claim, it would likely not produce a result different from the Courts conclusions in this opinion.

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14 The examination that Legacy Church's Motion requires, in a worldwide pandemic, and the differing results among three
federal district judges and two state supreme courts suggest that the Supreme Court owes the nation a better free exercise jurisprudence than it has yet provided. Its occasional focus on subjective intent, balancing of competing interest, and lack of clarity on the level of scrutiny has created a lack of principled analysis and irreconcilable precedent in its own opinions. Its “modern” broad interpretation of the Free Exercise Clause has manufactured an unnecessary “conflict” with the other First Amendment religious clause, the Establishment Clause. The Supreme Court has thus created its own exemptions and invalidated Congress' exemptions. See, e.g., NLRB v. Catholic Bishops, 440 U.S. 490, 506-07, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979)(Burger, C.J.)(holding that Church-operated schools teaching both religious and nonreligious students are not within the National Labor Review Board's jurisdiction, as Congress granted it in the National Labor Relations Act, 29 U.S.C. §§ 151-169 (1976)); id. at 508-18, 99 S.Ct. 1313 (Brennan, J., dissenting)(criticizing the majority for its evasive statutory construction, and arguing that the Supreme Court should have reached the constitutional issues). All that could have and can be avoided. Reynolds v. United States was the high point of free exercise analysis, and the Supreme Court's jurisprudence has resulted in confusion and muddled thinking. Justice Scalia's majority opinion in Smith was a valiant effort to right the ship. But the Supreme Court since then has not resisted its urge to focus on subjective intent and balancing interests. The Supreme Court should make clear that the Free Exercise protects belief and thought only, and let the First Amendment's speech clauses protect speech, and let the political branches in the federalist system regulate actions and conduct. Religious organizations -- particularly the Catholic Church in New Mexico, enjoy majority support and do not lack political clout, and they do not have much to fear from New Mexico. No sound constitutional theory of majority / minority rights can support well a different interpretation of Free Exercise rights.
15 The Court declines to substitute its judgment for that of subject-area experts because “ ‘[i]t is no part of the function of a
court” to decide which measures are “likely to be the most effective for the protection of the public against disease.’ ” In re Abbott, 954 F.3d at ––––, 2020 WL 1685929, at *1 (quoting Jacobson v. Massachusetts, 197 U.S. at 30, 25 S.Ct. 358).
16 The Court does not want its Memorandum Opinion to be read to minimize the importance of faith in people's lives.
Certainly religion is the centerpiece of many people's lives, and many individuals may feel as if religion saved their life. But essential services focus on the public as a whole -- essential businesses are essential for the lives of everyone, because they are necessary to ensure public health and welfare.

End of Document

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH

ORDER

This matter having come before the Court on the Governor’s Motion to Dismiss, and the

Court having reviewed the Motion and being sufficiently advised, it is hereby ORDERED that

the Motion is GRANTED.

So Ordered this ___ day of ________________, 2020.

__________________________________ JUDGE DAVID J. HALE United States District Court for the Western District of Kentucky

 
 Case 3:20-cv-00278-DJH-RSE Document 31 Filed 05/06/20 Page 1 of 30 PageID #: 406

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH

GOVERNOR BESHEAR’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ RENEWED EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL

Three courts have now declined to enjoin the March 19, 2020 Order prohibiting all mass

gatherings during the novel coronavirus (COVID-19) state of emergency as it applies to in-

person faith-based gatherings. On April 18, 2020, this Court denied Plaintiffs’ request for a

temporary restraining order to enjoin the mass gatherings order. (Doc. 9.) Plaintiffs appealed,

and the Sixth Circuit declined to enjoin the prohibition of in-person mass gatherings. See

Maryville Baptist Church, Inc. v. Beshear, No. 20-5427 (6th Cir. May 2, 2020) (Doc. 15-2). In a

similar case brought by congregants of Maryville Baptist Church, a Court in the Eastern District

of Kentucky denied a motion to enjoin the mass gatherings order as it applies to in-person faith-

based gatherings. See Roberts v. Neace, No. 2:20-cv-054 (E.D.Ky. May 4, 2020) (Doc. 46)

(attached as Exhibit A). Plaintiffs now ask this Court to enjoin the mass gatherings order as it

applies to in-person faith-based services while their appeal of this Court’s order denying the

TRO is pending – a step the Sixth Circuit refused to take. Governor Andy Beshear opposes the

motion.

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Neither the Governor nor the Commonwealth have taken any enforcement action against Plaintiffs or any person who participated in Plaintiffs’ mass gathering on April 12, 2020, or otherwise. Kentucky State Police Troopers did not intervene, did not issue any citations, and did not arrest any individuals at Maryville Baptist Church. They recorded license plate information of vehicles in the parking lot of Maryville Baptist Church and provided notice of the potential consequences of participating in a mass gathering. The Kentucky State Police provided the license plate information to local public health officials, but did not mail any document to any individual at Maryville Baptist Church on April 12. Only local officials, who Plaintiffs’ claim mailed letters with quarantine agreements to attendees of the April 12 in-person service, have taken enforcement action regarding the April 12 in-person service. In fact, the Kentucky State Police have not returned to Maryville Baptist Church since April 12. Plaintiffs cannot meet their high burden for obtaining an injunction of the order prohibiting all mass gatherings as it applies to in-person services. The Court should deny the motion.
BACKGROUND I. A Deadly And Highly-Contagious Disease Spreads Across America And Kentucky.
Kentucky, like the rest of the country, is facing the most serious public-health emergency in more than a century. COVID-19 is a severe, acute respiratory disease caused by the virus SARS-CoV-2.1 The World Health Organization (“WHO”) declared it a Public Health Emergency of International Concern on January 30, 2020.2 The next day, the U.S. Department of Health and Human Services declared a public health emergency, which it renewed on April 21,
1 Coronavirus Disease 2019 (COVID-19), Situation Summary, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (last updated Apr. 19, 2020; last visited May 5, 2020) (“CDC Situation Summary”). 2 WHO Director-General’s Statement On [International Health Regulations] Emergency Committee On Novel Coronavirus (2019-nCoV), World Health Organization, available at https://www.who.int/dg/speeches/detail/whodirector-general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-ncov) (Jan. 30, 2020) (last visited May 5, 2020).
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2020.3 See 42 U.S.C. § 247d. The WHO declared COVID-19 a pandemic on March 11, 2020.
Id. COVID-19 can be lethal, and older people and people of all ages with chronic
medical conditions (such as heart disease, lung disease, and diabetes) have a higher risk of
developing serious illness.4 Id. The Centers for Disease Control and Prevention (“CDC”)
summarize the perils of the pandemic as follows:
Widespread transmission of COVID-19 could translate into large numbers of people needing medical care at the same time. Schools, childcare centers, and workplaces, may experience more absenteeism. Mass gatherings may be sparsely attended or postponed. Public health and healthcare systems may become overloaded, with elevated rates of hospitalizations and deaths. Other critical infrastructure, such as law enforcement, emergency medical services, and sectors of the transportation industry may also be affected. Healthcare providers and hospitals may be overwhelmed. At this time, there is no vaccine to protect against COVID-19 and no medications approved to treat it.
Id. The risk of exposure naturally increases as the outbreak expands. Id. As of May 5, 2020,
Kentucky had 5,822 confirmed cases of COVID-19 and 275 confirmed deaths, with 625
confirmed cases and 14 deaths on May 5.5,6
II. The Commonwealth Acts Quickly To Prevent The Spread Of COVID-19.
Upon the first confirmed positive case of COVID-19 in Kentucky, Governor Beshear and
the Kentucky Cabinet for Health and Family Services (“CHFS”), with Secretary Friedlander as
the Governor’s designee, began exercising their emergency powers under KRS Chapters 39A,
3 Determination That A Public Health Emergency Exists, U.S. Dep’t of Health and Human Services (Jan. 31, 2020), available at https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (last visited Apr. 15, 2020); Renewal of Determination That A Public Health Emergency Exists, U.S. Dep’t of Health and Human Services (Apr. 21, 2020) (last visited May 5, 2020). 4 The CDC’s National Center for Health Statistics reports that, as of 2017, Kentucky ranks fifth among the states for deaths per capita due to heart disease, first for chronic lower respiratory disease, and fifth for diabetes. Stats of the State of Kentucky (2017), Centers for Disease Control and Prevention, National Center for Health Statistics, available at https://www.cdc.gov/nchs/pressroom/states/kentucky/kentucky.htm (last visited May 5, 2020). 5 KYEM Coronavirus (COVID) Data, KDPH COVID-19 Dashboard, available at https://kyem.maps.arcgis.com/apps/MapSeries/index.html ?appid=4a185cde02f54008b18edc474a768cfe (last visited on May 5, 2020). 6 Gov. Beshear: Kentucky Will Defeat COVID-19, available at https://kentucky.gov/Pages/Activitystream.aspx?n=GovernorBeshear&prId=153 (last visited May 5, 2020).
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194A and 214 to contain the spread of the virus. On, March 6, 2020, the Governor declared a State of Emergency. (Ky. Exec. Order No. 2020-215).7 As the number of confirmed COVID-19 cases increased, the Governor and CHFS, as well as other state officials, took additional steps to prevent its spread.
On March 16, 2020, CHFS restricted food and beverage sales to carryout, delivery, and drive-thru services, prohibiting onsite consumption. (CHFS Order, Mar. 16, 2020).8 On March 17, 2020, CHFS required all public-facing businesses that encourage public congregation or that, by the nature of the service to the public, cannot comply with CDC guidelines concerning social distancing, to cease in-person operations. (CHFS Order, Mar. 17, 2020).9 On March 18, 2020, the Governor issued Executive Order 2020-243 that, among other things, encourages all Kentuckians to take all feasible measures to comply with social distancing guidelines from the CDC and the Kentucky Department for Public Health. (Ky. Exec. Order No. 2020-243).10 On March 22, 2020, the Governor ordered closed all retail businesses to in-person traffic that are not life-sustaining, allowing them to provide curbside or delivery service for online or phone orders only. (Ky. Exec. Order No. 2020-246).11
On March 19, 2020, CHFS issued an Order prohibiting all mass gatherings, defined to include “any event or convening that brings together groups of individuals, including, but not
7 Available at https://governor.ky.gov/attachments/20200306_Executive-Order_2020-215.pdf (last visited on May 5, 2020). 8 Available at https://governor.ky.gov/attachments/20200316_Order_Restaurant-Closure.pdf (last visited May 5, 2020). 9 Available at https://governor.ky.gov/attachments/20200317_Order_Public-Facing-Businesses.pdf (last visited May 5, 2020). 10 Available at https://www.klc.org/userfiles/EO_Social_Distancing20200324144503.pdf (last visited May 5, 2020). 11 Available at https://governor.ky.gov/attachments/ 20200322_Executive-Order_2020-246_Retail.pdf (last visited May 5, 2020).
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limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts;
festivals; conventions; fundraisers; and similar activities.” (CHFS Order, Mar. 19, 2020).12
Since that time, Governor Beshear has taken additional measures to stop the pandemic,
including by also closing all businesses that are not life-sustaining. (Ky. Exec. Order No. 2020-
257).13 Kentuckians have answered the call of public officials. Data suggest social distancing is
“flattening the curve.”14 Governor Beshear has also taken steps to reopen certain limited
Kentucky health care services and businesses in phases, including establishing minimum
requirements for all businesses in Kentucky.15 As part of reopening Kentucky, Governor Beshear
has announced that beginning on May 20, 2020, faith-based organizations will be permitted to
have in-person services at a reduced capacity with appropriate social distancing, hygiene
measures, and minimum requirements implemented, and he is working with faith groups on that
reopening.16
III. Following The Guidance Of President Trump And The CDC, The Commonwealth Prohibits All Mass Gatherings And Promotes Social Distancing.
Governor Beshear and his designees have issued orders, including the Order prohibiting
mass gatherings, based on the guidance and recommendations of public health officials,
including those of the CDC and The White House encouraging social distancing and
12 Available at https://governor.ky.gov/attachments/20200319_Order_Mass-Gatherings.pdf (last visited May 5, 2020). 13 Available at https://governor.ky.gov/attachments/20200325_Executive-Order_2020-257_Healthy-at-Home.pdf (last visited May 5, 2020). 14 Coronavirus in Kentucky, Indiana: Tracking COVID-19 curve of cases, deaths, WLKY, available at https://www.wlky.com/article/coronavirus-kentucky-indiana-curve/32110616 (last visited May 5, 2020); Shay McAlister and Andrea Ash, Are Kentucky and Indiana actually ‘flattening the curve?’ (WHAS11 News, Mar. 26, 2020) (last updated Mar. 27, 2020), available at https://www.whas11.com/article/news/investigations/focus/whatdoes-it-mean-to-flatten-the-curve-and-is-it-working-in-ky-in/417-2cac611c-6e4b-44a2-ac38-3b86212656d9 (last visited May 5, 2020); Garrett Wymer, In the middle of a ‘critical’ month, how does Kentucky’s ‘curve’ compare?, WKYT (Apr. 16, 2020) (last updated Apr. 17, 2020), available at https://www.wkyt.com/content/news/In-themiddle-of-a-critical-month-is-Ky-flattening-the-curve-569701941.html (last visited May 5, 2020). 15 Available at https://govstatus.egov.com/ky-healthy-at-work (last visited May 5, 2020). 16 See Gov. Beshear Outlines Road Ahead for Gradual Reopening of Businesses (Apr. 29, 2020), available at https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=148 (last visited May 5, 2020).
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recommending that people avoid large and small gatherings in private places and public spaces.17,18,19 The CDC stresses that limiting face-to-face contact with others is the best way to reduce the spread of COVID-19.20 To practice social or physical distancing, the CDC directs people to stay at least six feet away from each other, not gather in groups, and stay out of crowded places and avoid mass gatherings. Id. (See Affidavit of Dr. Steven Stack, May 6, 2020, ¶¶ 15-18 (attached as Exhibit B).)
On March 29, 2020, the CDC revised its guidance on mass gatherings based on the guidance of The White House. Under the revised guidance, the CDC stated, “During the next 30 days, individuals and organizations should cancel or postpone in-person events that consist of 10 people or more throughout the U.S.”21 The White House recommended avoiding social gatherings in groups of 10 or more people.22 IV. Epidemiological Evidence Shows Mass Gatherings Result In The Spread Of
COVID-19 And Deaths. While most Kentuckians have complied with the Order and social distancing directives to help save Kentuckians’ lives, some have not. In mid-March, a faith-based mass gathering in Hopkins County resulted in an outbreak of COVID-19, with more than 50 people becoming
17 Social Distancing, Quarantine, and Isolation, Centers for Disease Control and Prevention, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html (last visited May 5, 2020). 18 Interim Guidance: Get Your Mass Gatherings or Large Community Events Ready for Coronavirus Disease 2019 (COVID-19), Centers for Disease Control and Prevention, available at https://www.cdc.gov/coronavirus/2019ncov/downloads/Mass-Gatherings-Document_FINAL.pdf (last visited May 5, 2020). 19 The President’s Coronavirus Guidelines for America: 30 Days to Stop the Spread, Do Your Part to Slow the Spread of the Coronavirus, available at https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_ coronavirus-guidance_8.5x11_315PM.pdf (last visited May 5, 2020). 20 Social Distancing, Quarantine, and Isolation, Centers for Disease Control and Prevention, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html (last visited May 5, 2020). 21 See n. 14. 22 See n. 15.
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infected and, to date, the loss of six lives. (Stack Aff., ¶¶ 41-46.)23,24,25 On March 27, 2020,
Hopkins County had only two confirmed cases of COVID-19; two weeks later, it had 83
confirmed cases, making it the fastest-growing county in the Commonwealth.26
In Pulaski and Calloway counties, two different church congregations of around 200
people went into self-quarantine after positive cases were confirmed in those counties.27 Local
public health officials in Pulaski County confirmed that a 59-year-old woman who tested
positive for COVID-19 had attended church the prior Sunday, possibly exposing the virus to 40
others who attended the service. Id. In Calloway County, University Church of Christ in
Murray advised its congregation of about 150 people to self-quarantine after the county
confirmed a case of COVID-19. Id.
Mass gatherings in other states have led to clusters of positive cases and deaths. In
Washington State, a church choir rehearsal in early March resulted in 45 confirmed cases of
COVID-19 and two deaths.28 In Virginia, a church pastor died on April 12 after he defied social
distancing and continued having church services.29 In Baton Rouge, Louisiana, a pastor’s refusal
23 Bailey Loosemore and Mandy McClaren, How a church revival in a small Kentucky town led to a deadly coronavirus outbreak, The Courier-Journal (Apr. 2, 2020), available at https://www.courierjournal.com/story/news/local/2020/04/02/coronavirus-kentucky-hopkins-county-church-revival-ledoutbreak/5111379002/ (last visited May 5, 2020). 24 Bailey Loosemore, Kentucky church responds to 'unjust criticism' about revival at center of COVID-19 outbreak, The Courier-Journal (Apr. 4, 2020) (last updated Apr. 5, 2020), available at https://www.courierjournal.com/story/news/local/2020 /04/04/coronavirus-kentucky-hopkins-county-church-respondscriticism/2947251001/ (last visited May 5, 2020). 25 Joe Sonka, et al., Coronavirus hot spots plague Western Kentucky, Southeast Indiana and Northern Tennessee, The Courier-Journal (Apr. 10, 2020), available at https://www.courier-journal.com/story/news/politics/2020/04/10/ coronavirus-hot-spots-plague-kentucky-indiana-and-tennessee/5103043002/ (last visited May 5, 2020). 26 See n. 21. 27 Savannah Eadens, Dozens in quarantine after being exposed to COVID-19 at churches in Calloway, Pulaski county, The Courier-Journal (Mar. 20, 2020), available at https://www.courier-journal.com/story/news/2020/03/20/ coronavirus-kentucky-members-multiple-churches-quarantine/2888205001/ (last visited May 5, 2020). 28 Richard Read, A choir decided to go ahead with rehearsal. Now dozens of members have COVID-19 and two are dead, Los Angeles Times (Mar. 29, 2020), available at https://www.latimes.com/world-nation/story/2020-0329/coronavirus-choir-outbreak (May 5, 2020). 29 Rebecca Klar, Va. bishop who defied social distancing recommendation dies of coronavirus complications, The Hill (Apr. 14, 2020), available at https://thehill.com/homenews/state-watch/492653-virginia-bishop-who-wasdefiant-of-coronavirus-dies-of-covid-19 (last visited May 5, 2020).
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to comply with mass gathering prohibitions led to the death of a church elder and the
hospitalization of a parishioner who is representing the church in a legal challenge against the mass gathering order.30
V. The Majority Of Kentuckians Comply With Measures To Protect The Health And Safety Of Themselves And Their Neighbors.
In Kentucky, the vast majority of groups have complied with social distancing measures
and the prohibition on mass gatherings. In particular, demonstrating the general applicability of
the Order prohibiting mass gatherings, on April 10, 2020, the Tourism, Arts and Heritage
Cabinet continued its Order closing the Kentucky Performing Arts Center pursuant to the Order on mass gatherings, as well as Executive Orders 2020-243 and 2020-257.31 Additionally, the
Department of Fish and Wildlife suspended all fishing tournaments in Kentucky because of the COVID-19 outbreak and canceled all of its summer camps.32,33
Sporting events across the Commonwealth have also been canceled during the pandemic.
The Kentucky High School Athletic Association suspended the Boys and Girls Sweet Sixteen® basketball tournaments, and indefinitely suspended all spring sports.34 Amateur National Motocross events in Kentucky have been postponed indefinitely.35
Religious faiths of different denominations have held virtual services or drive-in services
that adhere to proper social distancing and CDC hygiene measures. On Easter Sunday, multiple
30 Rachel Olding, Parishioner of La. Church That Defied Virus Lockdown Dies From COVID-19, But Pastor Claims It’s a Lie, The Daily Beast (Apr. 17, 2020), available at https://www.thedailybeast.com/member-of-tony-spells-lifetabernacle-church-in-baton-rouge-dies-from-coronavirus-another-member-in-icu (last visited May 5, 2020) 31 Tourism, Arts and Heritage Cabinet Oder (Apr. 10, 2020) (attached as Exhibit C). 32 Available at https://fw.ky.gov/Fish/Pages/Tournament-Fishing.aspx (last visited May 5, 2020). 33 Available at https://fw.ky.gov/Education/Pages/Summer-Camps.aspx (last visited May 5, 2020). 34 Jason Frakes, KHSAA announces indefinite suspension of all spring sports because of coronavirus pandemic, The Courier-Journal (Mar. 31, 2020), available at https://www.courierjournal.com/story/sports/preps/kentucky/2020/03/31/coronavirus-khsaa-announces-suspension-all-springsports/5096810002/ (last visited May 5, 2020). 35 Competition Bulletin 2020-5: Area Qualifiers Postponed Through March (Mar. 17, 2020), available at https://www.courier-journal.com/story/sports/preps/kentucky/2020/03/31/coronavirus-khsaa-announces-suspensionall-spring-sports/5096810002/ (last visited May 5, 2020).
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churches across Kentucky that had reportedly planned to hold in-person services changed to
virtual or drive-in services. For example, churches in Harlan County that planned to hold in-
person services opted for drive-in services instead.36 Governor Beshear and public health
officials have repeatedly encouraged drive-in and virtual faith-based services, so long as social
distancing and hygiene measures are implemented and followed. (Stack Aff., ¶¶ 46.)37,38
The Kentucky State Police received approximately six complaints from concerned
citizens and community leaders about Maryville Baptist Church having in-person services on
April 12, 2020. (Affidavit of Executive Director of the Operations Division of the Kentucky
State Police, Lieutenant Colonel Phillip Burnett, Jr., May 6, 2020, ¶6 (attached as Exhibit D).)
Prior to April 12, Plaintiff, Dr. Jack Roberts, publicly stated that Maryville Baptist Church would
continue to have in-person services in violation of the March 19 Cabinet Order prohibit mass
gatherings, despite pleas from local officials.39,40
36 Sarah Ladd, Easter churchgoers defiant after Kentucky troopers write down their license plate numbers, The Courier-Journal (Apr. 12, 2020), available at https://www.courier-journal.com/story/news/2020/04/12/kentuckychurches-hold-in-person-easter-services-despite-order/5127260002/ (last visited May 5, 2020). 37 See, e.g., Governor Andy Beshear, Update on COVID-19 in Kentucky – 3.20.2020 PM, YouTube (Mar. 20, 2020), at 46:45-47:15 (“I believe that this is a creative solution, as long as there is the distancing between those cars . . . . We want to see creativity, we want to see ways that they can connect . . . . My Commissioner of Public Health says that’s good.”)(available at https://youtu.be/vG_nreWckWw) (last visited May 5, 2020); Governor Andy Beshear, Update on COVID-19 in Kentucky – 4.11.2020, YouTube (Apr. 11, 2020), at 52:08-55:27 (“I have been in favor of drive-in services, a chance for people to get together and worship while being apart. . . . We’ve had great buy-in from our faith community around the state. . . . We have had churches working really hard on that and we appreciate it.”)(available at https://youtu.be/X_1NS02f0CI) (last visited May 5, 2020). 38 In Mississippi, the United States Department of Justice intervened in a lawsuit filed after a Mayor’s order prohibited drive-in services and attendees of drive-in services received $500 tickets. The Mayor later stated the City of Greenville would not make people pay the $500 tickets and that he would allow drive-in services to occur after the Mississippi Governor provided guidance. Associated Press, Mississippi mayor gives OK for drive-in church with windows up after lawsuit, parishioners fined $500, Fox 8 News (Apr. 15, 2020), available at https://fox8.com/news/coronavirus/mississippi-mayor-gives-ok-for-drive-in-church-with-windows-up-after-lawsuitparishioners-fined-500/ (last visited May 5, 2020). 39 Jessie Cohen, Maryville Baptist Church holds Bible study against Gov. Beshear’s recommendation, WHAS 11 (Apr. 9, 2020), available at https://www.whas11.com/article/news/health/coronavirus/ maryville-baptist-churchholds-wednesday-bible-study-against-beshear-recommendation/417-22c63bd4-1875-4055-9a8d-47eb9235c572 (last visited May 5, 2020). 40 Churches still defying Beshear’s orders to stop in-person gatherings, The Courier-Journal (Apr. 9, 2020), available at https://www.wave3.com/2020/04/09/churches-still-defying-beshears-orders-stop-in-person-gatherings/ (last visited May 5, 2020).
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A. Maryville Baptist Refuses to Comply with Emergency Orders. True to Dr. Roberts’ stated intention, Maryville Baptist Church held in-person services on April 12, with reports of 50 or 100 people attending; it had held another in-person service the prior Wednesday, with more than 40 people attending. Id.41,42 Demonstrating its knowledge of the risk of the spread of the virus through in-person services, Maryville Baptist aired the service via speaker outside of the church so some in their vehicles in the parking lot could attend by drive-in, and made the service available virtually on Facebook.43
Id. Based on media reports, those who attended the service inside the church were not following CDC social distancing guidelines.44
41 Sarah Ladd, Easter churchgoers defiant after Kentucky troopers write down their license plate numbers, The Courier-Journal (April 12, 2020), available at https://www.courier-journal.com/story/news/2020/04/12/kentuckychurches-hold-in-person-easter-services-despite-order/5127260002/ (last visited May 5. 2020). 42Eileen Street, Maryville Baptist Holds In-Person Service, Spectrum News 1 (Apr. 12, 2020), available at https://spectrumnews1.com/ky/lexington/news/2020/04/13/maryville-baptist-church-easter-sunday-in-person-service (last visited May 5, 2020). 43 See n. 40. 44 See n. 41.
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One attendee named Sally Oh said, “So people hugged us and shook our hands. It was like church.”45 Neither did those entering and exiting the church follow social distancing guidelines or wear personal protective equipment.
45 Id.
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Id. Most alarming, most attendees of the April 12 service were not Bullitt County residents.46 At least two people who attended the in-person service were residents of New Jersey, one of the epicenters of the pandemic in America. Id. Those New Jersey residents were photographed shaking the pastor’s hand, failing to comply with CDC social distancing guidelines.
46 Shellie Sylvestri, Most attendees of Easter service in Maryville not Bullitt Co. residents, Wave 3 News (Apr. 14, 2020), available at https://www.wave3.com/2020/04/14/most-attendees-easter-service-maryville-not-bullitt-coresidents/ (last visited May 5, 2020).
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As of May 5, 2020, New Jersey had nearly 131,000 confirmed cases of COVID-19 and more than 8,200 deaths.47
47 New Jersey COVID-19 Dashboard, available at https://covid19.nj.gov/#live-updates (last visited May 5, 2020).
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On April 12, 2020, uniformed Kentucky State Police responded to the complaints it received about Maryville Baptist Church having in-person services. (Burnett, Jr. Aff., ¶¶ 7-10.) Uniformed KSP recorded the license plate information of vehicles in the parking lot of the church, and placed notices on the vehicles relaying the potential consequences of participating in a mass gathering. (Id., ¶¶ 7-8.) They did not intervene, did not issue any citations and did not arrest any individual at Maryville Baptist Church, and theyhave not since April 12, 2020. (Id., ¶ 9.) The Kentucky State Police provided the license plate information to local public health officials. (Id., ¶ 10.) The Kentucky State Police has not mailed any document to any individual present at Maryville Baptist Church on April 12, 2020. (Id., ¶ 12.) Since April 12, 2020, the Kentucky State Police has not returned to Maryville Baptist Church. (Id., at 11.) Further, Plaintiffs do not allege and have not shown that any individual has been forced to quarantine as result of attending an in-person service there.
Dr. Roberts recognized the danger to the health and safety of those attending in-person services at Maryville Baptist Church, saying prior to April 12, “I’ve told my son, ‘Don’t come to church.’ I’ve told other folks, ‘Don’t come to church … watch the live stream.’”48 Yet he still refused to comply with the mass gathering Order and continued to hold in-person services, threatening the health and safety of those in attendance and spreading the virus far beyond his community. When asked by media if he recommended that people who attended the in-person service self-quarantine for 14 days, Dr. Roberts said, “I don’t know if I did or not. I really don’t. I could have; I should have, but whether I did or not I don’t remember.”49 One attendee named
Sally Oh said she would not self-quarantine, adding, “We need people to get the virus and
recover because that builds herd immunity.” Id.
48 See n. 38. 49 See n. 41.
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B. The Commonwealth Investigates Businesses for Failure to Comply with Emergency Orders and Responds to Complaints of Non-Compliance.
Businesses and groups that have endangered Kentuckians’ lives by refusing to comply have faced consequences. Between April 1 and 21, the Department of Workplace Standards within the Kentucky Labor Cabinet received referrals of 220 complaints from the KYSafer noncompliance citizen reporting hotline for investigation and possible enforcement action through closure orders, citations, and fines. (Affidavit of Commissioner Kimberlee C. Perry, May 6, 2020, ¶ 5 (attached as Ex. E).) The Department has performed in-person investigations of 179 of those complaints; of the remaining 41 complaints, the Department is awaiting investigation or has counseled the business on proper compliance. (Id., ¶ 7.) The Department’s investigations verified that 119 businesses or organizations were complying or that the complaints were not verified. (Id., ¶ 8.) As of April 21, the Department had issued 60 closure orders to businesses or organizations, including, but not limited to, businesses or organizations that are not lifesustaining, but continued to operate in violation of the Commonwealth’s orders and others that are life-sustaining but had not implemented social distancing and hygiene measures as recommended by the CDC.50
From March 19 through April 21, 2020, the Kentucky State Police received approximately 70 complaints from concerned citizens about non-compliance with the March 19 Order prohibiting all mass gatherings. (Burnett, Jr. Aff., ¶ 3.) Uniformed Kentucky State Police visited all locations of the complaints, including but not limited to, a hair salon, an arcade, gas stations, flea markets, in neighborhoods and personal residences, and issued no citations and took
50 See Eileen Street, Attendees at Maryville Baptist Service Face No Charges, Spectrum News 1 (Apr. 13, 2020), available at https://spectrumnews1.com/ky/lexington/news/2020/04/13/kentucky-no-charges-maryville-baptistchurch-bullitt-county- (last visited May 5, 2020); (Perry Aff.., ¶ 9.)
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no other enforcement action. (Id., ¶ 4.) They did not intervene, the did not issue any citations and they did not arrest any invidudal in response to the complaints. (Id., ¶ 5.)During the State of Emergency, the Kentucky State Police has increased routine patrols, patrolling about 2,175 retail locations a total of 9,240 times. (Id., ¶ 14.) VI. Plaintiffs Do Not Allege The Governor Has Prevented Them From Holding In-
Person Services. Since Easter Sunday, a day Plaintiff Roberts publicized his intent to disregard the mass gatherings order, the Kentucky State Police has not returned to Maryville Baptist Church. (Id., ¶ 11.) Plaintiffs have not alleged or provided any evidence to the contrary. Plaintiffs also do not allege they have received letters from the local health department regarding in-person services since Easter Sunday. Plaintiffs do not allege anyone was ordered to quarantine as a result of attending in-person services. In fact, Plaintiffs have yet to allege they were actually prevented from holding in-person services on any date. Finally, Plaintiffs do not allege they have ceased in-person services since the Easter Sunday service. To the extent Plaintiffs continue to hold in-person services uninterrupted by the Kentucky State Police or local health departments, what is the irreparable injury?
ARGUMENT Plaintiffs seek the extraordinary remedy of an emergency injunction pending their interlocutory appeal (IPA). An IPA is governed by Fed. R. Civ. P. 62(d), which states, “While an appeal is pending from an interlocutory order or final judgment that . . . refuses . . . an injunction, the court may . . . grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” When addressing a motion for an IPA, a District Court must engage in a balancing exercise, weighing the following four factors: (1) whether the movant will likely
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prevail on the merits of the appeal, (2) whether the movant will suffer irreparable injury if restoration of the injunction is denied, (3) whether other parties will be harmed by restoration, and (4) whether the public interest will be served by granting the restoration.
This Court correctly determined this balancing test weighs in favor of the Governor when it denied Plaintiffs’ motion for a temporary restraining order. (Doc. 9.) Nothing has changed. The Sixth Circuit and the Eastern District of Kentucky both also declined to enjoin the mass gatherings order as it applies to in-person faith-based services. See Roberts v. Neace, No. 2:20cv-054 (E.D. Ky. May 4, 2020) (Doc. 46) (Ex. A). The Court in the Eastern District of Kentucky also denied an emergency motion to stay and for an injunction pending appeal in Roberts for the reasons stated in the Court’s Opinion and Order denying the motion for a preliminary injunction. See Roberts, No. 2:20-cv-054 (E.D. Ky. May 5, 2020) (Doc. 53) (attached as Exhibit F); Roberts, No. 2:20-cv-054, Plaintiffs’ Emergency Motion for Injunction Pending Appeal (Doc. 49).
Plaintiffs are not entitled to the requested relief because they cannot demonstrate a strong likelihood of success on the merits, irreparable injury, or a balance of the equities in their favor. I. Plaintiffs Cannot Succeed On The Merits.
Plaintiffs did not succeed before the Sixth Circuit on the same issue it raises here regarding application of the mass gatherings order to in-person services. Moreover, similarlysituated Plaintiffs did not succeed on similar claims before a District Court in the Eastern District of Kentucky. The Sixth Circuit has also recognized that Plaintiffs’ claims will be moot on May 20, 2020, when the mass gatherings order will be altered to permit limited in-person faith-based gatherings—a date occurring prior to the Sixth Circuit’s set schedule to address the appeal of the denial of the temporary restraining order. Thus, granting an injunction pending the appeal in this instance would effectively provide Plaintiffs with the ultimate relief sought in the suit. In such a
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situation, it is inappropriate to grant the injunction. Jiminez v. Barber, 252 F.2d 550, 553 (9th Cir. 1958). See also Wright and Miller, Federal Practice and Procedure, § 2904 at 321.
A. The Governor has Authority to Prohibit Mass Gatherings During a Pandemic.
The statutory authority for the Governor’s Order challenged in this lawsuit is found in KRS Chapter 39A. KRS 39A.100(1)(j) authorizes the Governor “to perform and exercise other functions, powers, and duties deemed necessary to promote and secure the safety and protection of the civilian population” during a declared state of emergency. More specifically, KRS 39A.100(1)(f) authorizes the Governor “[t]o exclude all nonessential, unauthorized, disruptive, or otherwise uncooperative personnel from the scene of an emergency, and to command those groups assembled at the scene to disperse.” “A person who refuses to leave an area in which a written order of evacuation has been issued in accordance with a written declaration of emergency or a disaster may be forcibly removed to a place of safety or shelter, or may, if this is resisted, be arrested by a peace officer.” Id. KRS 39A.100(1)(b) allows the Governor to require state agencies to respond to the emergency or disaster in the manner directed.
Here, acting in accordance with the authority under KRS Chapters 39A, 194A and 214, CHFS, on behalf of and as a designee of the Governor, issued the Order to halt all mass gatherings. The intent of the Order is to implement CDC guidelines to limit groups of people gathering in close proximity for a prolonged period of time. The Governor, the Cabinet, and local officials have enforced the order uniformly and without discrimination. B. The Governor’s Mass Gathering Order Does Not Violate the Free Exercise Clause
Because It is a Valid and Neutral Law of General Applicability. Plaintiffs assert the Governor’s prohibition of mass gatherings to curb the spread of COVID-19 violates their right to practice their religion. This claim must fail because the order
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prohibits all mass gatherings in accordance with CDC guidelines, while also specifically allowing and encouraging acceptable alternative means to communally worship: drive-in services and virtual services.
The First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]” U.S. CONST., amend. I. The free exercise clause embodies a liberty applied to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). However, the clause “does not include liberty to expose the community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (citation omitted). Nor does the clause “relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n. 3 (1982)).
This is because the clause “embraces two concepts – freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” Cantwell 310 U.S. at 303-04 (citing Reynolds v. United States, 98 U.S. 145 (1878); Davis v. Beason, 144 U.S. 33 (1890)). The holding of “religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” Minersville School Dist. Bd. of Ed. v. Gobitis, 30 U.S. 586, 594-95 (1940). Under the prevailing standard, “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of
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the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing Smith, 494 U.S.
872).
State action is not neutral if the purpose “is to infringe upon or restrict practices because
of their religious motivation,” or “the purpose . . . is the suppression of religion or religious
conduct.” New Doe Child #1 v. Congress of United States, 891 F.3d 578, 591 (6th Cir. 2018)
(quoting Lukumi, 508 U.S. at 533). “A law is not of general applicability if it ‘in a selective
manner impose[s] burdens only on conduct motivated by religious belief[.]’” Michigan Catholic
Conf. and Catholic Family Serv.’s v .Burwell, 755 F.3d 372 (6th Cir. 2014) (quoting Lukumi, 508
U.S. at 543).
Here, the mass gatherings order – both on its face and in its application – is neutral and of
general applicability. As this court correctly recognized in denying the motion for a temporary
restraining order, by its plain terms the Order prohibits “all mass gatherings,” not just religious
gatherings. (Doc. 9.) In addition, the District Court for the Eastern District of Kentucky held on
May 4, 2020:
… it is abundantly clear that the “object or purpose of” Kentucky’s mass gathering ban is not “the suppression of religion or religious conduct.” Lukumi, 508 U.S. at 533. To the contrary, the plain text of the challenged order categorically bans all “mass gatherings” as a means of preventing the spread of a life-threatening virus. The illustrative examples set forth are sweeping: “community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities. Roberts, No. 2:20-cv-054 (E.D. Ky. May 4, 2020) (Doc. 46, Page ID#: 831) (Ex. A).51
51 In Binford v. Sununu, a New Hampshire court examined an illustrative list nearly identical to that in the mass gatherings order in denying a motion for a preliminary injunction concerning Governor Christopher Sununu’s emergency order that, among other things, prohibited, “Scheduled gatherings of 50 or more people for social, spiritual and recreational activities, including but not limited to, community, civic, public, leisure, faith based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” Docket No. 217-2020CV-00152, Order at 3-4 (N.H. Superior Ct., Mar. 25, 2020) (attached as Exhibit G). The court there wrote that the plaintiffs’ argument about the emergency order, including that the word “spiritual” targeted religious activities, ignored the illustrative list in the paragraph of the order detailing the types of events the order applied to. Id. at 17. The court held that the list made the order “clearly content neutral in that it prohibits any gathering in excess of 50
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In fact and practice, the entire purpose and success of the order hinges upon it to applying to all. Plaintiffs present no evidence the Order targeted their mass gathering because of its religious nature. Rather, the order targets any intent to gather in groups. In its application, the order has forced the closure of events with no religious affiliation, including movie theaters, concerts, and sporting events. This Court recently acknowledged this fact. (Doc. 9, Page ID#: 5.) State and local officials have ordered the closure of businesses for non-compliance with social distancing and hygiene measures, as well as businesses that are not life-sustaining that continued to operate in violation of orders. The District Court for the Eastern District of Kentucky also recognized the effect of the order, writing:
Does the mass gathering ban have the effect of preventing plaintiffs who comply with it from attending in-person church services? Yes. Does the ban do so because the gatherings are faith-based? No. Roberts, No. 2:20-cv-054 (E.D. Ky. May 4, 2020) (Doc. 46, Page ID#: 832) (Ex. A) Thus, even though the Order may “burden” faith-based mass gatherings, it equally burdens all mass gatherings, regardless of the religious nature. Its purpose is to prevent the spread of a disease that is particularly infectious, with no cure or treatment. The order does not discriminate or differentiate among groups, because COVID-19 does not differentiate or discriminate. The order also does not exempt secular mass gatherings and is not applied in a manner that would exempt secular mass gatherings. In fact, the Order does not provide any exemptions at all. Cf. Ward v. Polite, 667 F.3d 727, 738-39 (6th Cir. 2012). Rather, the Order provides
people, regardless of the content of the event.” Id. The court recognized that, as the March 19 Order at issue here, the emergency order followed the guidance of the Centers for Disease Control (CDC) and Prevention and the White House, and “was specifically designed to comport with relevant CDC guidelines to slow the spread of COVID-19.” Id. at 18. The court further opined that the impact on the ability to congregate at a church was merely incidental to the neutral regulation and otherwise reasonable given its limited duration and the public health threat facing the citizens of the State. Id. at 20.
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examples of what a “mass gathering” is and what it is not; the distinction is that it closes any event the purpose of which is to congregate person-to-person for an extended period to engage in a particular activity. This Court recognized the distinction in its Order denying a temporary restraining order, writing that presence at a grocery or liquor store “is a single and transitory experience: individuals enter the store at various times to purchase items; they move around the store individually–subject to strict social-distancing guidelines set out by state and federal health authorities […]–and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose.” (Doc. 9, Page ID#: 4.)
The mass gatherings order does not apply to locations providing services necessary to maintain public health and safety, despite the fact that people are in transit in the location at the same time. Plaintiffs argue these are exceptions, but Plaintiffs fail to submit any evidence that these decisions were made with “religion in mind.” See Roberts, 2:20-cv-054, (E.D.Ky. May 4, 2020) (Doc. 46, Page ID#: 831) As the Eastern District of Kentucky Court noted:
Plaintiffs do not argue that the State has permitted any other of the cited examples of mass gatherings to take place; rather, plaintiffs argue that certain businesses that the government has allowed to remain open present similar health risks. That, of course, is a judgment call, but what is missing is any evidence that Kentucky has conducted the essential/non-essential analysis with religion in mind. Lukumi, 508 U.S. at 543. Moreover, there is an undeniable difference between certain activities that are, literally, life sustaining and other[s] that are not. Food, medical care and supplies, certain travel necessary to maintain one’s employment and thus income, are, in that sense, essential. Concerts, sports events, and parades clearly are not. And while plaintiffs argue that faith-try based gatherings are as important as physical sustenance, as a literal matter, they are not life-sustaining in the physical sense. Id. at Page ID#: 832)
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In-person faith-based services, like concerts, sports events, and parades, are not specifically restricted because of the purpose for the gathering, but because they are unique, not just in the communal nature of the gathering, but also in the services they provide. Unlike lifesustaining businesses that remain open, those services can be provided in a manner that does not necessarily require the gathering of people in a crowd. To address the compelling government interest recognized by the Courts, the Governor has to take steps to limit person-to-person interaction to protect the public health, while not undercutting the very services that contribute to the public health. Thus, although the Governor has required social distancing and hygiene practices and imposed additional restrictions on food, medical, and transportation services, as well as places of employment, outright preventing the gathering of groups of people in those locations could preclude the effectiveness of those services necessary to maintain public health during the time of a pandemic. This is not true for communal, civic, public, leisure and faithbased gatherings that “are not life-sustaining in the physical sense.” Id.
The Governor’s encouragement of drive-in and virtual faith-based services further demonstrates the Order’s neutrality and general applicability. Through the creativity of our state’s faith leaders, much of the state’s religious community can still participate in their worship services. And these options allow the practice and observation of one’s faith without the risk of mass-spreading COVID-19.
Because the Order is neutral and of general applicability, it is subject to “rational basis review[.]” Miller v. Davis, 123 F. Supp. 3d 924, 938 (E.D. Ky. 2015) (citing Seger v. Ky. High Sch. Athletic Ass’n, 453 Fed. Appx. 630, 634 (6th Cir. 2011) (interpreting Smith, 494 U.S. 872 and Lukumi, 508 U.S. 520)). Under rational basis review, an emergency order will be upheld if it is “rationally related to furthering a legitimate state interest.” Seger, 453 Fed. Appx. 635. An
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emergency order “subject to rational basis review is accorded a strong presumption of validity.” Id. It should be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). Plaintiffs carry the burden to negate “every conceivable basis which might support it[.]” Id. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).
The facts weighing against Plaintiffs’ arguments are insurmountable. The White House and the CDC have recommended the closure of any establishment or event allowing for a mass gathering. National, state, and local public health officials describe the particular risks of spreading COVID-19 “among people who are in close contact with each other for a prolonged period.” (Stack Affidavit, ¶ 15.) As the District Court for the Eastern District of Kentucky noted:
As the Sixth Circuit observed just recently in the context of this pandemic, it “is imperative in such circumstances that judges give legislatures and executives–the more responsive branched of government–the flexibility they need to respond quickly and forthrightly to threats to the general welfare, even if it that flexibility sometimes comes at the cost of individual liberties.” Adams & Boyle, P.C. v. Slatery, – F.3d. –, No. 20-5408, 2020 WL 1982210, at *1 (6th Cir. Apr. 24, 2020). Because the prohibition on mass gatherings is rationally related to the legitimate state interest in stopping the spread of disease, Plaintiffs cannot demonstrate a strong likelihood of success. C. In the Alternative, the Mass Gatherings Order Survives Strict Scrutiny. Even assuming, arguendo, strict scrutiny applies to the mass gatherings order, it easily meets that standard. Certainly, the Commonwealth has a compelling governmental interest in restricting mass gatherings to prevent the spread of a highly contagious, life-threating virus. See Lukumi, 508 U.S. at 531-32. Plaintiffs do not deny the Commonwealth’s compelling interest in preventing the spread of COVID-19.
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Further, as this Court and the District Court for the Eastern District of Kentucky have
found, the mass gatherings order is narrowly tailored to advance that compelling interest. See id.
Agreeing with this Court’s finding that the mass gatherings order satisfies the “compelling
interest” test and Plaintiffs did not demonstrate a likelihood of success, the District Court for the
Eastern District of Kentucky concluded:
The current public health crisis presents life-or-death dangers. Plaintiffs are not alone in having their lives and activities disrupted by it and the measures that our federal and state governments have taken to address it. Indeed, it is hard to imagine that there is any American that has not been impacted. But unless a law can be shown to have religion within its cross-hairs, either factually or in application, the fact that religious practices are impinged by it does not contravene the First Amendment.
Roberts, No. 2:20-cv-054 (E.D. Ky. May 4, 2020) (Doc. 46, Page ID#: 834) (Ex. A)
The order prohibits all mass gatherings, where the risk of transmission of the disease is
highest. Despite Plaintiffs’ contentions to the contrary, there are no exceptions to the mass
gatherings order. As discussed above, in those life-sustaining businesses that have been
permitted to remain open during the state of emergency, multiple people may be present at once,
but they are in transit – they are thus materially different in character and kind from mass
gatherings, and the risk of virus spread is materially different as well.52 Providing an exception
to the mass gatherings order for in-person faith-based services would compromise the
Commonwealth’s efforts to reduce the spread of COVID-19 and flatten the curve. Again, the
52 There is preliminary evidence suggesting that mass gatherings present a particular risk for the spread of disease, as compared to transitory encounters, which is why CDC has advised against gatherings where individuals are in close contact for prolonged periods of time. (Stack Affidavit, ¶ 15.) See also Jianyun Lu et al., COVID-19 Outbreak Associated with Air Conditioning in Restaurant, Guangzhou, China, 2020, Emerging Infectious Diseases, Vol. 26, No. 7 (July 2020), available at https://wwwnc.cdc.gov/eid/article/26/7/20-0764_article (last visited May 5, 2020) (finding that individuals seated at a mass gathering near an infected person contracted COVID-19, while those having repeated transitory encounters with that person did not); Carl Heneghan et al., SARS-CoV-2 viral load and the severity of COVID-19, Centre for Evidence-Based Medicine, Nuffield Department of Primary Care Health Sciences, University of Oxford (Mar. 26, 2020), available at https://www.cebm.net/covid-19/sars-cov-2-viral-loadand-the-severity-of-covid-19/ (last visited May 5, 2020) (summarizing evidence that length and extent of exposure may affect severity of disease, contributing to increased mortality among healthcare workers).
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spread of COVID-19 has been documented where people have participated in faith-based mass gatherings. See supra, pp. 6-8.
Accordingly, under strict scrutiny the mass gatherings order is constitutional. II. Plaintiffs Fail To Allege An Irreparable Injury.
Generally, courts presume irreparable injury when a plaintiff alleges a violation of a constitutional right. Overstreet v. Lexington–Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). Plaintiffs rest their argument on this presumption. However, when Supreme Court precedent rebuts the allegation, the presumption gives way to the alleged facts. Id. For the reasons stated above, Plaintiffs cannot demonstrate a strong likelihood of success on the merits. As a result, they are not entitled to the presumption of irreparable injury.
Having solely relied on that presumption, Plaintiffs fail to set forth factual allegations to demonstrate an irreparable injury. For instance, they do not allege KSP cited or arrested any person at Maryville Baptist Church on April 12, 2020. They only allege KSP was present in the parking lot of the church, recorded information of vehicles in the parking lot, and placed notices of potential consequences of participating in a mass gathering on vehicles in the parking lot. Plaintiffs do not allege they have been or are currently under a forced quarantine for attending inperson services. Only local officials have taken any action related to the April 12 service – in the form of mailing a letter to individuals believed to have attended in-person services requesting that they agree to self-quarantine for 14 days and asking them to contact the local health department if they have any questions.
Nor do Plaintiffs allege the mass gatherings order prevents them from being able to practice and observe their faith. As the record shows, Plaintiffs can attend virtual or drive-in church services provided by Maryville Baptist Church. Plaintiffs do not allege a specific and
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forthcoming irreparable injury. The Kentucky State Police have not returned to Maryville Baptist Church since April 12. As such, and in light of the serious public health threat posed by Plaintiffs’ desire to worship communally person-to-person, they fail to allege an irreparable injury to warrant preliminary injunctive relief. III. Issuance Of Plaintiffs’ Requested Injunction Would Cause Substantial Harm.
Plaintiffs’ requested relief would cause substantial harm to the public health and safety. With respect to faith-based mass gatherings, the CDC and the White House have recommended avoiding social gatherings of ten or more people. Epidemiological evidence demonstrates that mass gatherings in defiance of these recommendations, and in defiance of the Governor and the Secretary’s Order, have resulted in the spread of COVID-19. Of particular relevance to Plaintiffs’ motion, faith-based mass gatherings have resulted in the spread of COVID-19.
Again, for example, a revival in Hopkins County in mid-March has been linked to more than 50 confirmed cases of the novel coronavirus and, to date, six deaths. See supra, pp. 6-7. And in the state of Washington, a church choir rehearsal in early March resulted in 45 confirmed cases and two deaths. See supra, pp. 7-8.
Importantly, those attending a mass gathering, such as in-person faith-based services, not only risk exposure to COVID-19 themselves, but they also risk exposing anyone they later come into contact with.(Stack Aff., ¶¶ 41-47.) These risks are exacerbated by the fact that COVID-19 appears to have a long incubation period, and an infected person may spread the virus even if asymptomatic.
Allowing faith-based mass gatherings as Plaintiffs request could result in more illness, more deaths, and a higher spike in cases at any given time, resulting in our health care centers becoming overwhelmed. The Commonwealth’s orders represent efforts to prevent this spike in
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cases because if our health care systems become overwhelmed, all of the problems of COVID-19 compound.
Additionally, the efforts and sacrifices Kentuckians have made to engage in social distancing and limit their exposure to one another would be sacrificed. The progress made to flatten the curve could be reversed out if Kentuckians become exposed at a mass gathering or in another state and return home infected.
Rather than present sufficient arguments in response, Plaintiffs contend there are secular exceptions to the mass gatherings order. That is not the case, as this Court and the District Court for the Eastern District of Kentucky have found. Activities currently permitted by orders – shopping for life-sustaining good such as groceries, going through a restaurant drive-thru – are materially different in kind and in terms of risk of exposure. As a result of the substantial harm currently posed by mass gatherings, Plaintiffs cannot meet their burden. IV. Issuance Of Plaintiffs’ Requested Injunction Would Not Serve The Public Interest.
While, “[g]enerally speaking, ‘the public interest is served by preventing the violation of constitutional rights[,]’ . . . enjoining officials from pursuing their chosen policies is not without costs.” League of Women Voters v. Hargett, 400 F.Supp.3d 706, 733-34 (M.D.Tenn. Sept. 12, 2019) (quoting Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir. 2004)). Courts, then, are directed to weigh the plaintiffs’ interests against that of the public. Id.
As knowledge of COVID-19 and its spread is constantly evolving, and as cases of the virus continue to increase in the Commonwealth, state and local officials must be able to take rapid, decisive action. Here, the Governor, other constitutional officers, state officials, public health officials, state and federal courts, school districts, local officials, and citizens have all
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taken action to prevent the spread of COVID-19 – the type of collective action public health
officials state is needed to protect public health and safety. The public interest in state officials’
ability to take these measures is significant, as the purpose is to prevent the spread of COVID-19
and save the lives of Kentuckians. Certainly, that overrides the public’s interest in attending in-
person faith-based mass gatherings, especially since there are multiple other ways citizens may
worship during this time, including virtual and drive-in services, and religious services are not
singled out or burdened differently from other mass gatherings in the March 19, 2020 Order.
CONCLUSION
For the foregoing reasons, Defendant-Appellee Governor Beshear respectfully asks the
Court to deny Plaintiffs-Appellants’ Renewed Emergency Motion for Injunction Pending
Appeal.
Respectfully submitted, /s/ S. Travis Mayo La Tasha Buckner General Counsel S. Travis Mayo Chief Deputy General Counsel Taylor Payne Deputy General Counsel Laura Tipton Deputy General Counsel Marc Farris Deputy General Counsel Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 (502) 564-2611 LaTasha.Buckner@ky.gov travis.mayo@ky.gov taylor.payne@ky.gov laurac.tipton@ky.gov marc.farris@ky.gov
Counsel for Governor Andy Beshear
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Case 3:20-cv-00278-DJH-RSE Document 31 Filed 05/06/20 Page 30 of 30 PageID #: 435 CERTIFICATE OF SERVICE
I hereby certify that on May 6, 2020, I electronically filed the foregoing Response via the Court’s CM/ECF system, causing all counsel of record to be served.
/s/ S. Travis Mayo S. Travis Mayo
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Case 3:20-cv-00278-DJH-RSE Document 31-1 Filed 05/06/20 Page 1 of 15 PageID #: 436 Case: 2:20-cv-00054-WOB-CJS Doc #: 46 Filed: 05/04/20 Page: 1 of 15 - Page ID#: 825

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:20cv054 (WOB-CJS)

THEODORE JOSEPH ROBERTS, ET AL.

PLAINTIFFS

VS.

MEMORANDUM OPINION AND ORDER

HON. ROBERT NEACE, ET AL.

DEFENDANTS

Plaintiffs Theodore Joseph Roberts, Randall Daniel, and Sally Boyle bring this action challenging the constitutionality of certain measures instituted by the Commonwealth of Kentucky in response to the COVID-19 public health crisis.
Specifically, plaintiffs Daniel and Boyle allege that the ban on “mass gatherings” as applied to in-person church attendance violates their right to freedom of religion under the First Amendment. (Doc. 6, ¶¶ 56-66). Plaintiff Roberts alleges that restrictions on out-of-state travel violate his fundamental liberty interest and thus his right to substantive due process. (Id. ¶¶ 67-73). Plaintiffs further allege that the Travel Ban violates their right to procedural due process. (Id. ¶¶ 74-79).
This matter is before the Court on plaintiffs’ emergency motion for temporary restraining order and motion for preliminary

Case 3:20-cv-00278-DJH-RSE Document 31-1 Filed 05/06/20 Page 2 of 15 PageID #: 437 Case: 2:20-cv-00054-WOB-CJS Doc #: 46 Filed: 05/04/20 Page: 2 of 15 - Page ID#: 826
injunction (Doc. 7). The Court previously heard oral argument on these motions and took the matter under submission. (Doc. 33).
By agreement of the parties, the Court now issues the following Memorandum Opinion and Order ruling on plaintiffs’ motion for preliminary injunction.1
Factual and Procedural Background A. Challenged Restrictions On March 6, 2020, Kentucky Governor Andrew Beshear began issuing a series of Executive Orders placing restrictions on Kentucky citizens as part of an effort to slow the spread of the COVID-19 virus in the Commonwealth. (Am. Compl. ¶¶ 13-23). As relevant here, on March 19, 2020, Governor Beshear issued an Executive Order prohibiting all “mass gatherings.” (Am. Compl. Exh. D). The Order states: “Mass gatherings include any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faithbased, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” The Order states that mass gatherings do not include “normal operations at
1 The Court acknowledges that Governor Beshear has filed a notice stating that beginning on May 20, 2020, “faith-based organizations will be permitted to have in-person services at a reduced capacity, with social distancing, and cleaning and hygiene measures implemented and followed.” (Doc. 40). Given that this date is nearly three weeks away, the Court concludes that an expeditious ruling herein is still warranted.

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airports, bus and train stations, medical facilities, libraries, shopping malls and centers, or other spaces where persons may be in transit,” as well as “typical office environments, factories, or retail or grocery stores where large numbers of people are present, but maintain appropriate social distancing.” (Id.).
Subsequent Executive Orders closed non-life-sustaining retail businesses; banned most elective medical procedures; shut down additional businesses for in-person work; and placed further restrictions on retail establishments that were allowed to remain open. (Am. Compl. ¶¶ 18-23).
On March 30, 2020, the Governor issued an Executive Order banning Kentucky residents from travelling out of state, except when required for employment; to obtain groceries, medicine, or other necessary supplies; to seek or obtain care by a licensed healthcare provider; to provide care for dependents, the elderly, or other vulnerable person; or when required by court order. (Am. Compl. Exh. H). The Order also required any Kentuckian in another state for reasons other than those set forth in the exceptions to self-quarantine for fourteen days upon returning to Kentucky. (Id.).
Finally, on April 2, 2020, Governor Beshear issued an additional Executive Order expanding the travel ban to require residents of states other than Kentucky who travel into the

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Commonwealth for reasons outside the above exceptions also to selfquarantine for fourteen days. (Am. Compl. Exh. I).
B. Bases for Plaintiffs’ Claims Notwithstanding the ban on mass gatherings, on Easter Sunday, April 12, 2020, plaintiffs attended in-person church services at Maryville Baptist Church in Hillview, Bullitt County, Kentucky. (Am. Compl. ¶ 27). Plaintiffs allege that they did so in accord with their sincerely held religious beliefs that in-person church attendance was required, and that they observed appropriate social distancing and safety measures during the service. (Id. ¶¶ 2829). Upon exiting the church, plaintiffs found on their vehicle windshields a Notice informing them that their presence at that location was in violation of the “mass gathering” ban. (Am. Compl. ¶ 32). Plaintiffs allege that the notices were placed there by the Kentucky State Police at the behest of Governor Beshear, who had stated that he was going to target religious services for such notices. (Id. ¶ 33-34). The Notice states that the recipient is required to selfquarantine for fourteen days and that the local health department will send them a self-quarantine agreement. In bold, the notice continues: “Failure to sign or comply with the agreement may result in further enforcement measures,” and “Please be advised that KRS 39A.990 makes it a Class A misdemeanor to violate an emergency

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order.” (Id. ¶ 32). Plaintiffs subsequently received such documentation from the Kentucky Cabinet for Health and Family Services, Department for Public Health. (Doc. 37 at 5-6).
With regard to the Travel Ban, plaintiff Roberts alleges that the ban prevents him from travelling to Ohio and Indiana for a variety of personal reasons that do not fall within the exceptions found in Governor Beshear’s orders. (Am. Compl. ¶ 40).
Analysis “A preliminary injunction is an ‘extraordinary remedy never awarded as of right.’” Adams & Boyle, P.C. v. Slatery, - F.3d -, No. 20-5408, 2020 WL 1982210, at *7 (6th Cir. April 24, 2020) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, (2008)). “Rather, the party seeking the injunction must prove: (1) that they are likely to succeed on the merits of their claim, (2) that they are likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that an injunction is in the public interest.” Id. A court considering whether to grant a preliminary injunction must therefore “balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Id. (citation omitted).

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A. Mass Gathering Ban The Court first considers plaintiffs’ claim that Kentucky’s ban on mass gatherings impermissibly infringes their First Amendment right to the free exercise of religion. The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). “A law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Id. A law is not neutral if it “discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Id. at 533. Stated differently, neutrality is lacking where “the object of a law is to infringe upon or restrict practices because of their religious motivation.” Id. Further, as to general applicability, the Supreme Court noted in Lukumi that “all laws are selective to some extent,” and that reality does not render a law constitutionally suspect. Id. at 542. Rather, the First Amendment inquiry, again, focuses on

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whether the government is selectively imposing “burdens only on

conduct motivated by religious belief.” Id. at 543.

A law that fails to satisfy the neutrality and general

applicability requirements “must be justified by a compelling

governmental interest and must be narrowly tailored to advance

that interest.” Id. 531-32.

With these principles in mind, it is abundantly clear that

the “object or purpose of” Kentucky’s mass gathering ban is not

“the suppression of religion or religious conduct.” Lukumi, 508

U.S. at 533. To the contrary, the plain text of the challenged

order categorically bans all “mass gatherings” as a means of

preventing the spread of a life-threatening virus.

The

illustrative examples set forth are sweeping: “community, civic,

public, leisure, faith-based, or sporting events; parades;

concerts; festivals; conventions; fundraisers; and similar

activities.” (Doc. 6-4 at 1).

Plaintiffs do not argue that the State has permitted any other

of the cited examples of mass gatherings to take place; rather,

plaintiffs argue that certain businesses that the government has

allowed to remain open present similar health risks. That, of

course, is a judgment call, but what is missing is any evidence

that Kentucky has conducted the essential/non-essential analysis

with religion in mind. Lukumi, 508 U.S. at 543.

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Moreover, there is an undeniable difference between certain activities that are, literally, life sustaining and other that are not. Food, medical care and supplies, certain travel necessary to maintain one’s employment and thus income, are, in that sense, essential. Concerts, sports events, and parades clearly are not. And while plaintiffs argue that faith-based gatherings are as important as physical sustenance, as a literal matter, they are not life-sustaining in the physical sense.
As the Sixth Circuit observed just recently in the context of this pandemic, it “is imperative in such circumstances that judges give legislatures and executives—the more responsive branches of government—the flexibility they need to respond quickly and forthrightly to threats to the general welfare, even if that flexibility sometimes comes at the cost of individual liberties.” Adams & Boyle, P.C. v. Slatery, — F.3d —, No. 20-5408, 2020 WL 1982210, at *1 (6th Cir. April 24, 2020).
Does the mass gathering ban have the effect of preventing plaintiffs who comply with it from attending in-person church services? Yes. Does the ban do so because the gatherings are faith-based? No.
For this reason, another Kentucky federal court hearing a case brought by the church attended by plaintiffs recently denied the church’s motion for a temporary restraining order, finding that the church had not demonstrated a likelihood of success on

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the merits of its First Amendment claim. See Maryville Baptist
Church, Inc. v. Beshear, — F. Supp.3d -, No. 3:20cv278, 2020 WL
1909616 (W.D. Ky. April 18, 2020). The relief sought by the church
was the same: in-person services with no state-imposed
restrictions.2
The Court notes that just two days ago the Court of Appeals
for the Sixth Circuit overruled, in part, Judge Hale’s denial of
the temporary restraining order. (Doc. 41-1). However, the Sixth
Circuit expressly limited its holding to drive-in church services:
The Governor and all other Commonwealth officials are hereby enjoined, during the pendency of this appeal, from enforcing orders prohibiting drive-in services at the Maryville Baptist Church if the Church, its ministers, and its congregants adhere to the public health requirements mandated for “life-sustaining” entities.
Id. at 10 (emphasis added). And the Court stated: “[W]e are
inclined not to extend the injunction to in-person services at
this point.” Id. Had the Court felt that such a broader injunction
2 Another court granted plaintiffs a temporary restraining order where the City of Louisville had banned drive-in church services, which the plaintiffs wished to attend on Easter. See On Fire Christian Center, Inc. v. Fischer, — F. Supp. 3d —, No. 3:20cv264, 2020 WL 1820249, at *8 (W.D. Ky. April 11, 2020). Although plaintiffs here make a passing reference in their Complaint to drive-in services, that is not the relief they seek, nor have they suggested it as a compromise. The Court also notes that Governor Beshear, at the Court’s invitation, filed an amicus curiae brief in that case stating his position that his “mass gathering” ban does not prohibit drive-in religious services where proper safety protocol are observed. See Case No. 3:20cv264, Doc. 27. The issue in On-Fire was thus different than the one before this Court.

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was warranted, it was within its power to so order. This Court thus does not find that opinion to control the outcome here.
In his opinion, Judge Hale also considered the church’s claim under the Kentucky Religious Freedom Restoration Act, which invokes the more demanding “compelling interest” test. Judge Hale concluded that, even under that standard, the church did not demonstrate a likelihood of success. Id. at *3.
This Court agrees. The current public health crisis presents life-or-death dangers. Plaintiffs are not alone in having their lives and activities disrupted by it and the measures that our federal and state governments have taken to address it. Indeed, it is hard to imagine that there is any American that has not been impacted. But unless a law can be shown to have religion within its cross-hairs, either facially or in application, the fact that religious practices are impinged by it does not contravene the First Amendment.
For these reasons, the Court concludes that plaintiffs have not shown a likelihood of success on their merits of their First Amendment claim, and their motion for preliminary injunction on that basis will be denied.3
3 For the same reasons, the Court also concludes that plaintiffs have failed to satisfy the remaining preliminary injunction factors.

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B. Travel Ban4 After careful review, the Court concludes that the Travel Ban does not pass constitutional muster. The restrictions infringe on the basic right of citizens to engage in interstate travel, and they carry with them criminal penalties. The “‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Rose, 526 U.S. 489, 498 (1999) (quoting United States v. Guest, 383 U.S. 745, 757 (1966)). Indeed, the right is “virtually unconditional.” Id. (quoting Shapiro v. Thompson, 394 U.S. 618, 643 (1969)). See also United States v. Guest, 383 U.S. 745, 757 (1966) (“The constitutional right to travel from one State to another ... occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.”). To be valid, such orders must meet basic Constitutional requirements. As the Supreme Court has stated: (E)ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.
4 Prospective injunctive relief against State defendants is proper under the doctrine of Ex Parte v. Young, 209 U.S. 123 (1908).

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Aptheker v. Sec. of State, 378 U.S. 500, 508 (1964) (quoting NAACP v. Alabama, 377 U.S. 288, 307-08 (1964)).
“Ordinarily, where a fundamental liberty interest protected by the substantive due process component of the Fourteenth Amendment is involved, the government cannot infringe on that right ‘unless the infringement is narrowly tailored to serve a compelling state interest.’” Johnson v. City of Cincinnati, 310 F.3d 484, 502 (6th Cir. 2002) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). See also Adreano v. City of Westlake, 136 F. Appx. 865, 870-71 (6th Cir. 2005) (discussing arbitrary and capricious aspect of substantive due process claim); Pearson v. City of Grand Blanc, 961 F2d 1211, 1217 (6th Cir. 1992) (similar).
The travel restrictions now before the Court violate these principles. They have the following effects, among others:
1. A person who lives or works in Covington would violate the order by taking a walk on the Suspension Bridge to the Ohio side and turning around and walking back, since the state border is several yards from the Ohio riverbank. 2. A person who lives in Covington could visit a friend in Florence, Kentucky (roughly eight miles away) without violating the executive orders. But if she visited another friend in Milford, Ohio, about the same distance from Covington, she would violate the Executive Orders and have to be quarantined on return to Kentucky. Both these trips could

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be on an expressway and would involve the same negligible risk of contracting the virus. 3. Family members, some of whom live in Northern Kentucky and some in Cincinnati less than a mile away, would be prohibited from visiting each other, even if social distancing and other regulations were observed. 4. Check points would have to be set up at the entrances to the many bridges connecting Kentucky to other states. The I75 bridge connecting Kentucky to Ohio is one of the busiest bridges in the nation. Massive traffic jams would result. Quarantine facilities would have to be set up by the State to accommodate the hundreds, if not thousands, of people who would have to be quarantined. 5. People from states north of Kentucky would have to be quarantined if they stopped when passing through Kentucky on the way to Florida or other southern destinations. 6. Who is going to provide the facilities to do all the quarantining?
The Court questioned counsel for defendants Beshear and Friedlander during oral argument about some of these potential applications of the Travel Ban, and counsel indeed confirmed that the Court’s interpretations were correct. (Doc. 38 at 9-13).

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The Court is aware that the pandemic now pervading the nation must be dealt with, but without violating the public’s constitutional rights. Not only is there a lack of procedural due process with respect to the Travel Ban, but the above examples show that these travel regulations are not narrowly tailored to achieve the government’s purpose. See Johnson v. City of Cincinnati, 310 F.3d 484, 503 (6th Cir. 2002) (“[I]f there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means.’”) (quoting Dunn v. Blumstein, 405 U.S. 330, 343 (1972)).5
5 Minor amendments to the regulations might alleviate the problems. For example, the Ohio travel regulations only restrict travel into that state by a person who intends to “stay” in the state. While the word “stay” is perhaps vague, it certainly implies an intent to remain in the state at least 24 hours, so that persons stopping while driving through the state or changing planes at the airport would not face the risk of being unnecessarily quarantined for 14 days. Further, the Ohio provisions are requests for the most part and recite that they have been issued for the “guidance” of the public. Nor do they apply “to persons who as part of their normal life live in one state and work or gain essential services in another state.” Ohio’s rules, therefore, do not appear overbroad and have a rational basis for combating the coronavirus, while still preserving the population’s constitutional rights.

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Therefore, a preliminary injunction will enter declaring the Travel Ban orders invalid and prohibiting their enforcement.
Therefore, having reviewed this matter, and the Court being advised,
IT IS ORDERED that: (1) Plaintiffs’ motion for a preliminary injunction (Doc. 7)
be, and is hereby, GRANTED IN PART AND DENIED IN PART; (2) Plaintiffs shall post a bond in the amount of $1000.00.
See Fed. R. 65 (c); and (3) A preliminary injunction consistent with this Memorandum
Opinion and Order shall enter concurrently herewith.
This 4th day of May 2020.

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Case 3:20-cv-00278-DJH-RSE Document 31-3 Filed 05/06/20 Page 1 of 1 PageID #: 457
EXHIBIT B

ANDY BESHEAR GOVERNOR
JACQUELINE COLEMAN
LT. GOVERNOR

TOURISM, ARTS AND HERITAGE CABINET
MAYO-UNDERWOOD BUILDING, 5TH FLOOR 500 MERO STREET
FRANKFORT, KENTUCKY 40601 502-564-4270 – OFFICE 502-564-1079 – FAX

MICHAEL E. BERRY
SECRETARY

April 9, 2020
Pursuant to the March 6, 2020 Executive Order of Governor Andy Beshear declaring a State of Emergency in the Commonwealth of Kentucky, and subsequent Executive Orders including, but not limited to, the March 18, 2020 Executive Order 2020-243 empowering state agencies to take all reasonable and necessary steps to ensure appropriate social distancing and to avoid overcrowding to prevent exposure to and the spread of COVID-19 and the March 25, 2020 Executive Order 2020-257 mandating social distancing and compliance with established hygiene guidance, I hereby direct and order that the following Kentucky State Parks will be closed through the month of April 2020:
Natural Bridge State Resort Park Cumberland Falls State Resort Park

Other State Parks are subject to being closed if the social distancing and hygiene guidance from the CDC and the Kentucky Department of Public Health are not followed to the fullest extent practicable.
Pursuant to these same authorities, I further direct and order that as of Friday, April 3, 2020, all Kentucky State Parks will no longer will be open to the public for overnight stays. The facilities will be open for use during daytime hours as long as visitors maintain appropriate social distancing and hygiene measures. Other than as set forth above, Kentucky State Parks will be open to the public between the hours of 7 a.m. and 7 p.m.

_____________________________ Michael E. Berry, Secretary Tourism, Arts and Heritage Cabinet

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Case 3:20-cv-00278-DJH-RSE Document 31-5 Filed 05/06/20 Page 1 of 5 PageID #: 460

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., et al.,

Plaintiffs,

v.

Civil Action No. 3:20-cv-00278-DJH

ANDY BESHEA~, in his official capacity as the Governor of the Commonwealth of Kentucky,

Defendant.

DECLARATION OF KIMBERLEE C. PERRY Kimberlee C. Perry states as follows:
My name is Kimberlee C. Perry. I am over the age of 18 and make this declaration based on my personal knowledge.
2. I am the Commissioner of the Department of Workplace Standards within the Kentucky Labor Cabinet.
3. On March 31, 2020, I was delegated authority to enforce the various public health and safety orders issued under the State of Emergency, including, but not limited to, to Executive Orders 2020-243, 2020-246, and 2020-257, and orders implementing the Governor's various Executive Orders and the orders of the secretary of the Cabinet for Health and Family Services and the Commissioner of the Department for Public Health. [Exhibit 1, 3/31/2020 Labor Cabinet Order, ¶ 1.]
4. Through that Order I was granted authority to compel compliance with the Orders referenced in Paragraph 1 of this Order, including, but not limited to, the power to issue closure

Case 3:20-cv-00278-DJH-RSE Document 31-5 Filed 05/06/20 Page 2 of 5 PageID #: 461
orders, citations, and fines, as well as all powers granted under KRS Chapter 39A, KRS Chapter 211, and KRS Chapter 212. [Exhibit 1 ¶ 2.]
5. Since April 1, 2020, the Department of Workplace Standards has received referrals z~f 220 complaints from the KY-SAFER noncompliance reporting hotline for investigation and possible enforcement action through closure orders, citations, and fines.
6. Of those 220 complaints, 113 involve businesses or organizations deemed lifesustaining under Executive Order 2020-257, and 107 involve'business or organization deemed not to be life-sustaining under Executive Order 2020-257.
7. The Department of Workplace Standards, through its own investigators and investigators assigned by the Public Protection Cabinet to assist, has performed in-person investigations of 179 of the 220 complaints. The remaining 41 are awaiting in-person inspection or have been investigated or counseled on proper compliance with Executive Order 2020-257 by telephone.
8. The Department of Workplace Standards, through its own investigators and investigators assigned by the Public Protection Cabinet to assist, has verified through its inperson investigations that 119 businesses or organizations were in compliance with Executive Order 2020-257 or that the complaints were otherwise unverified.
9. The Department of Workplace Standards, through its own investigators and investigators assigned by the Public Protection Cabinet to assist, has issued a total of 60 closure orders based on its in-person investigations. A closure order is issued if the business or organization is not life-sustaining, or if the business or organization is life-sustaining, but is not properly implementing CDC protocols regarding social distancing as required in Executive Order 2020-257.

Case 3:20-cv-00278-DJH-RSE Document 31-5 Filed 05/06/20 Page 3 of 5 PageID #: 462
10. The Department of Workplace Standards has approved a total of 181ifesustaining businesses or organizations to reopen after those entities provided evidence that they will properly implement CDC protocols regarding social distancing in the future.
Further declarant sayeth naught. Dated: May 6, 2020
I declare that the statements herein are true under penalty of perjury pursuant to 28 U.S.C. ~ 1746.
KIMB RLEE C. PERRY

Case 3:20-cv-00278-DJH-RSE Document 31-5 Filed 05/06/20 Page 4 of 5 PageID #: 463
Perry Declaration Exhibit 1

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Case 3:20-cv-00278-DJH-RSE Document 31-5 Filed 05/06/20 Page 5 of 5 PageID #: 464
Orders 2020-243, 2020-246, and 2020-257; and orders implementing the Governor's various Executive Orders and the orders of the secretary of the Cabinet for Health and Family Services and the Commissioner of the Department for Public Health;
2. The Commissioner shall have the same authority as the Commissioner of the Department for Public Health to compel compliance with the Orders referenced in Paragraph 1 of this Order, including, but not limited to, the power to issue closure orders, citations, and fines, as well as all powers granted under KRS Chapter 39A, KRS Chapter 211, and KRS Chapter 212.
3. The Commissioner may delegate authority to personnel in the Department of Workplace Standards to take all necessary measures to implement and enforce this' Order, and such personnel shall have the same authority as the Commissioner as outlined in Paragraph 2 of this Order; and
4. This Order shall take immediate effect upon execution.
This Order shall be in effect for the duration of the State of Emergency under Executive Order 2020-215 or until this Order is rescinded by further order or operation of law.

Case 3:20-cv-00278-DJH-RSE Document 31-6 Filed 05/06/20 Page 1 of 1 PageID #: 465 Case: 2:20-cv-00054-WOB-CJS Doc #: 53 Filed: 05/05/20 Page: 1 of 1 - Page ID#: 899

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:20cv054 (WOB-CJS)

THEODORE JOSEPH ROBERTS, ET AL.
VS.
HON. ROBERT NEACE, ET AL.

ORDER

PLAINTIFFS DEFENDANTS

This matter is before the Court on plaintiffs’ emergency motion to stay (Doc. 49), and for the reasons stated in this Court’s Memorandum Opinion and Order (Doc. 46),
IT IS ORDERED that plaintiffs’ motion to stay (Doc. 49) be, and is hereby, DENIED.
This 5th day of May 2020.

Case 3:20-cv-00278-DJH-RSE Document 31-7 Filed 05/06/20 Page 1 of 22 PageID #: 466
EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

 
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Case 3:20-cv-00278-DJH-RSE Document 1-10 Filed 04/17/20 Page 1 of 5 PageID #: 98

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MARYVILLE BAPTIST CHURCH, INC., )

and DR. JACK ROBERTS,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity as )

Governor of the Commonwealth of Kentucky, )

)

Defendant.

)

CASE NO. __3_:2_0_C_V_-_2_7_8_-D_J_H______

DECLARATION OF DAVID CARR 1. I am over the age of 18 years, I have personal knowledge of the matters set forth in this declaration, and I would testify competently as to such matters if called to do so. 2. I am a resident of Pulaski County, Kentucky. 3. I am the founder and C.E.O. of King of Kings Radio Network located in Somerset, Kentucky. 4. I am a member of the media. 5. I visited Maryville Baptist Church, 130 Smith Lane, Louisville, KY on Easter Sunday, April 11, 2020, from 9:45 A.M. to 11:45 A.M. E.D.T. 6. I personally witnessed the Easter Sunday Service held at Maryville Baptist Church, both inside the church building, and the “drive-in” service outside in the parking lot.

1

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Case 3:20-cv-00278-DJH-RSE Document 1-10 Filed 04/17/20 Page 2 of 5 PageID #: 99 7. I took photos of the “drive-in” service in the parking lot, including the following
photograph which accurately depicts the parking lot during the “drive-in” service:
2

Case 3:20-cv-00278-DJH-RSE Document 1-10 Filed 04/17/20 Page 3 of 5 PageID #: 100 8. The Kentucky State Police posted copies of a “NOTICE” on both occupied and
unoccupied vehicles in the parking lot during the Easter Service. The following is an accurate depiction of the NOTICE that was posted:
9. At least two vehicles that were occupied when the State Police posted copies of the NOTICE on them immediately left the parking after the posting of the NOTICE on them.
10. At approximately 12:00 P.M. E.D.T. on Easter Sunday, immediately after the Maryville Baptist Church Easter Service, I observed and took photographs at the parking lots of nearby businesses, including Walmart and Kroger, both of which are less than one mile from Maryville Baptist Church.
3

Case 3:20-cv-00278-DJH-RSE Document 1-10 Filed 04/17/20 Page 4 of 5 PageID #: 101 11. The Walmart parking lot contained approximately 100–150 vehicles, and a
Walmart employee who was counting customers going into the store advised me there were 144 people in the Walmart at the time. Below is a photograph I took accurately depicting the cars in the section of the Walmart parking lot visible in the photograph:
4

Case 3:20-cv-00278-DJH-RSE Document 1-10 Filed 04/17/20 Page 5 of 5 PageID #: 102 12. The Kroger shopping center parking lot, approximately 200 yards from the
Walmart parking lot, contained more than 150 cars, and I observed more people in the Kroger than were in the Walmart. Below is a photograph I took accurately depicting the cars in the section of the Kroger shopping center parking lot visible in the photograph:
I DECLARE under penalty of perjury that the foregoing is true and correct. EXECUTED this April 17, 2020.
s/ David Carr David Carr 5

Case 3:20-cv-00278-DJH-RSE Document 1-11 Filed 04/17/20 Page 1 of 1 PageID #: 103
(;+,%,7-

 
 Case 3:20-cv-00278-DJH-RSE Document 1 Filed 04/17/20 Page 1 of 53 PageID #: 1

FILED
VANESSA L ARMSTRONG, CLERK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

Apr 17 2020
U.S. DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY

MARYVILLE BAPTIST CHURCH, INC., )

and DR. JACK ROBERTS,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity as )

Governor of the Commonwealth of Kentucky, )

)

Defendant.

)

CASE NO. _3_:_2_0_C_V_-2_7_8_-_D_J_H______

VERIFIED COMPLAINT FOR DECLARATORY RELIEF, TEMPORARY RESTRAINING ORDER, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF, AND DAMAGES Plaintiffs, MARYVILLE BAPTIST CHURCH, INC. (“Maryville Baptist Church” or the “Church”), and DR. JACK ROBERTS (“Dr. Roberts”), sue Defendant, ANDREW BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky (“Kentucky” or the “Commonwealth”), and allege: NOTICE OF RELATED CASE CURRENTLY PENDING IN THIS COURT Pursuant to L.R. 40.1(b), Plaintiffs show the Court that a case is currently pending in this United States District Court, in the same Louisville Jury Division, involving substantial common questions of law and fact. That related case is styled ON FIRE CHRISTIAN CENTER, INC. v. GREGG FISHER, et al., Case No. 3:20-cv-00264-JRW [hereinafter On Fire Christian Center]. Plaintiffs respectfully submit that these cases should be considered related under L.R. 40.1(b) both because they meet the requirements of Fed. R. Civ. P. 42(a), and because a substantial savings of judicial time and resources would result if they were handled by the same judge.

1

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URGENCIES JUSTIFYING TEMPORARY RESTRAINING ORDER 1. In their Prayer for Relief, infra, and in their contemporaneously filed Motion for Temporary Restraining Order (TRO), Plaintiffs seek a TRO restraining enforcement against Plaintiffs of the various COVID-19 orders issued by Governor Beshear and other Commonwealth officials purporting to prohibit Plaintiffs, on pain of criminal sanctions and mandatory, householdwide quarantines, from gathering for in-person or even “drive-in” worship services at the Church, regardless of whether Plaintiffs meet or exceed the social distancing and hygiene guidelines pursuant to which the Commonwealth disparately and discriminatorily allows so-called “lifesustaining” commercial and non-religious entities (e.g., beer, wine, and liquor stores, warehouse clubs, and supercenters) to accommodate large gatherings of persons without scrutiny or numerical limit. 2. As shown by the verified allegations below, Governor Beshear on Good Friday specifically threatened criminal sanctions and quarantines against Easter Sunday worshippers who show up at a church, and the Governor followed through with his threat by dispatching Kentucky State Police to Maryville Baptist Church on Easter Sunday to post notices of criminal violation and quarantine requirements on all vehicles present and record their license plate numbers—both occupied and unoccupied vehicles, and whether the occupants were inside the Church building for the worship service or in their vehicles for the “drive-in” version of the service. On the Wednesday following Easter Sunday, April 15, owners of the vehicles in the Church parking lot on Easter Sunday, including Plaintiff Dr. Roberts, received letters from the Commonwealth further confirming Governor Beshear’s criminal sanction and mandatory quarantine threats for Easter Sunday worshippers, and also confirming that this coming Sunday’s services remain targets of Governor Beshear’s enforcement threats.
2

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3. On the Saturday between Governor Beshear’s Good Friday threats and Easter Sunday enforcement actions, however, this Court issued a TRO enjoining the Mayor of Louisville from “enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with any prohibition on drive-in church services at On Fire.” See On Fire Christian Ctr., 2020 WL 1820249, *1 (W.D. Ky. Apr. 11, 2020) (emphasis added). This Court issued the Louisville TRO because the Mayor threatened the plaintiffs with criminal enforcement of Governor Beshear’s COVID-19 orders. There, the Mayor said that he would “use the police to deter and disburse” religious gatherings, had requested that the police “record license plates of all vehicles in attendance,” and threatened that individuals would be contacted by public health officials informing them to self-quarantine under the threat of criminal sanction. Id. at *4–5. This Court held that such threats and actions were unconstitutional because the government “may not ban its citizens from worshipping.” Id. at *8 (emphasis added). And although the Louisville TRO was necessarily limited to the plaintiffs before the Court in the case, the Court admonished, “Louisville ought not to view the limits of this injunction as a green light to violate the religious liberty of non-parties.” Id. at *1 n.2.
4. Nevertheless, what the Mayor of Louisville only threatened to do to On Fire Christian Center, and this Court enjoined as unconstitutional under the First Amendment, Governor Beshear actually did to Plaintiffs, dispatching the Kentucky State Police to Maryville Baptist Church on Easter Sunday to issue notices of criminal sanctions and mandatory quarantines, and to record license plates for follow up enforcement. Given Governor Beshear’s apparent disregard of this Court’s Louisville TRO (i.e., the constitutional reasoning behind it), and the reality of the letters received by Plaintiffs’ Easter Sunday worshippers confirming Governor Beshear’s enforcement threats and intentions, Governor Beshear and the Kentucky State Police
3

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will continue to threaten criminal sanctions and other enforcement actions against Plaintiffs and their Sunday worshippers, including this Sunday, absent emergency relief from the Court.
INTRODUCTION 5. Due to the unprecedented nature of the 2019 novel coronavirus disease (COVID-19) and the indisputable health tragedy the disease has wrought on our great Republic and those victims suffering under its yoke, there are those who may find it “tempting to hold that First Amendment rights should acquiesce to national security in this instance.” Tobey v. Jones, 706 F.3d 379, 393 (4th Cir. 2013). One could be forgiven for hastily reaching such a conclusion in such uncertain times, but “our Forefather Benjamin Franklin warned against such a temptation by opining that those who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” Id. 6. When the great American experiment was first implemented, our revered Founders took pains to note that the Constitution—and all of the rights it recognized and enshrined—was instituted “in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” U.S. Const. Pmbl. (emphasis added). To this very day, “we continue to strive toward [that] more perfect union.” Smith v. City of New Smyrna Beach, No. 6:110cv01110-Orl-37KRS, 2013 WL 5230659, *1 (M.D. Fla. Sept. 16, 2013). That work is not easy, and governments acting in good faith can and sometimes do miss the mark. This is such a case. 7. Recognizing that times of crisis would arise, that such times might lead governments to seek to repress precious freedoms, and that the Republic’s survival depended upon defeating such repressive instincts, the genius of our founding document is that it placed explicit protections into the text of the Bill of Rights. And, importantly, “[o]ur Bill of Rights placed our
4

Case 3:20-cv-00278-DJH-RSE Document 1 Filed 04/17/20 Page 5 of 53 PageID #: 5
survival on firmer ground—that of freedom, not repression.” Konigsberg v. State Bar of California, 366 U.S. 36, 79 (1961) (Black, J., dissenting).
8. During times of national crisis, such as the current uncertainty arising from COVID-19, “the fog of public excitement obscures the ancient landmarks set up in our Bill of Rights.” American Communist Ass’n, C.I.O. v. Douds, 339 U.S. 382, 453 (1950) (Black, J., dissenting). But, where the fog of public excitement is at its apex, “the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly.” De Jonge v. Oregon, 299 U.S. 353, 365 (1937). Without doubt, “[t]herein lies the security of the Republic, the very foundation of constitutional government.” Id.
9. It is beyond cavil that our commitment to our founding principles is most tested and best calculated during times of crisis and uncertainty. Indeed, “[t]imes of crisis take the truest measure of our commitment to constitutional values. Constitutional values are only as strong as our willingness to reaffirm them when they seem most costly to bear.” Hartness v. Bush, 919 F.2d 170, 181 (D.C. Cir. 1990) (Edwards, J., dissenting) (emphasis added). Our willingness to reaffirm our staunch commitment to our fundamental freedoms is imperative to the very survival of the American experiment. For, “[h]istory reveals that the initial steps in the erosion of individual rights are usually excused on the basis of an ‘emergency’ or threat to the public. But the ultimate strength of our constitutional guarantees lies in the unhesitating application in times of crisis and tranquility alike.” United States v. Bell, 464 F.2d 667, 676 (2d Cir. 1972) (Mansfield, J., concurring) (emphasis added).
10. In the instant matter, Plaintiffs bring this case only to highlight the troubling erosion of fundamental and cherished liberties wrought by the imposition of Defendant’s orders surrounding the COVID-19 virus. Plaintiffs seek not to discredit or discard the government’s
5

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unquestionable interest in doing that task for which it was instituted – protecting the citizenry. But, as is often true in times of crisis, Plaintiffs respectfully submit that in an effort to uphold its sworn duties the Commonwealth has stepped over a line the Constitution does not permit. Because of that, Plaintiffs bring this action to ensure that this Court safeguards the cherished liberties for which so many have fought and died. For, “[i]f the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be discarded.” Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J., dissenting) (emphasis added). Plaintiffs pray unto the Court that it not permit the cherished and fundamental liberties enshrined in the Constitution to be another tragic casualty of COVID-19.
PARTIES 11. Plaintiff MARYVILLE BAPTIST CHURCH, INC. (the “Church”) is a non-profit corporation incorporated under the laws of the Commonwealth of Kentucky and is located at 130 Smith Lane, Louisville, Kentucky 40229. 12. Plaintiff DR. JACK ROBERTS (“Dr. Roberts”) is the Founder and Senior Pastor of Maryville Baptist Church and resides in Bullitt County, located in the Louisville Jury Division of the Western District of Kentucky. 13. Defendant, ANDY BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky (“Kentucky” or the “Commonwealth”), is responsible for enacting and enforcing, either personally or through his designees, the COVID-19 Executive Orders and other Orders at issue in this litigation.
JURISDICTION AND VENUE 14. This action arises under the First and Fourteenth Amendments to the United States Constitution and is brought pursuant to 42 U.S.C. § 1983. This action also arises under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc, et eq. This action also
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arises under Sections 1, 5, 8, and 15 of the Bill of Rights of the Kentucky Constitution. This action also arises under the Kentucky Religious Freedom Restoration Act, Ky. Rev. Stat. § 446.350.
15. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.
16. Venue is proper in this Court under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
17. This Court is authorized to grant declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. § 2201-02, implemented through Rule 57 of the Federal Rules of Civil Procedure, and is authorized to grant a temporary restraining order and injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure.
18. This Court is authorized to grant Plaintiffs’ prayer for relief regarding costs, including a reasonable attorney’s fee, pursuant to 42 U.S.C. § 1988.
GENERAL ALLEGATIONS GOVERNOR BESHEAR’S EXECUTIVE ORDERS AND RELATED CABINET FOR HEALTH AND FAMILY SERVICES ORDERS. 19. On March 6, 2020, in response to COVID-19, Governor Beshear issued Executive Order 2020-215, which declared a state of emergency in the Commonwealth of Kentucky. A true and correct copy of Executive Order 2020-215 is attached hereto as EXHIBIT A and incorporated herein. 20. In that order, Governor Beshear stated that COVID-19 represents a “public health emergency” and directed various government agencies to implement certain restrictions and orders to facilitate the Commonwealth’s response. 21. On March 16, 2020, purporting to act under the authority of various Kentucky statutes and Executive Order 2020-215, the Cabinet for Health and Family Services issued an
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Order permitting business establishments that offer for sale “[l]iquor, beer, and wine” to continue operations for “carry-out, delivery, and drive-thru services.” A true and correct copy of the March 16, 2020 Order is attached hereto as EXHIBIT B and incorporated herein.
22. On March 17, 2020, purporting to act under the authority of various Kentucky statutes and Executive Order 2020-215, the Cabinet for Health and Family Services issued an Order stating that “all public-facing businesses that encourage public congregation or, that by the nature of the service to the public, cannot comply with CDC guidelines concerning social distancing, shall cease all in-person operations.” A true and correct copy of the March 17, 2020 Order is attached hereto as EXHIBIT C and incorporated herein.
23. The March 17 Order permitted numerous businesses, including “food, food processing, agriculture, industrial manufacturing, feed mills, construction, trash collection, retail, grocery and consumer goods, home repair/hardware and auto repair, pharmacy, and other medical facilities, biomedical and healthcare, post offices, insurance, banks, gas stations, laundromats, veterinary clinics and pet stores, warehousing, storage, and distribution, public transportation, and hotel and commercial lodging,” to “remain open . . . but must to the extent practicable implement Centers for Disease Control guidance” on social distancing and sanitary practices. EXHIBIT C at 1–2 (emphasis added).
24. On March 19, 2020, purporting to act under the authority of various Kentucky statutes and Executive Order 2020-215, the Cabinet for Health and Family Services issued an order stating that “[a]ll mass gatherings are hereby prohibited.” A true and correct copy of the March 19, 2020 Order is attached hereto as EXHIBIT D and incorporated herein.
25. In the March 19 Order, the Commonwealth purported to prohibit “any event or convening that brings together groups of individuals, including, but not limited to, community,
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civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” EXHIBIT D at 1 (emphasis added).
26. While purporting to prohibit “[a]ll mass gatherings,” the March 19 Order provides blanket exemptions for non-faith-based events or locations “where large numbers of people are present” including “airports, bus and train stations, medical facilities, libraries, shopping malls and centers . . . office environments, factories, [and] retail or grocery stores.” EXHIBIT D at 1 (emphasis added).
27. On March 22, 2020, Governor Beshear issued Executive Order 2020-246, which ordered closure of “[a]ll in-person retail businesses that are not life-sustaining” immediately as of March 23, 2020 at 8:00 p.m. A true and correct copy of Executive Order 2020-246 is attached hereto as EXHIBIT E and incorporated herein.
28. Executive Order 2020-246 provided for a large number of so-called life-sustaining businesses, and so-called non-life-sustaining businesses providing “delivery and curbside service,” to continue operations so long as appropriate social distancing (“when possible”) and hygiene practices were followed, to the extent “practicable.” EXHIBIT E at 2 ¶ 4.
29. Executive Order 2020-246 exempted as life-sustaining businesses “Building Material and Garden Equipment and Supplies Dealers,” “Beer, Wine, and Liquor Stores,” “General Merchandise Stores, including Warehouse Clubs and Supercenters,” and others. EXHIBIT E at 4.
30. Executive Order 2020-246 thus continued to prohibit religious or “faith-based” gatherings of any kind from occurring in the Commonwealth regardless of whether social distancing and personal hygiene practices could be maintained, which were the conditions
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under which numerous commercial and non-religious entities “where large numbers of people are present” were exempted without scrutiny or numerical limit.
31. On March 25, 2020, Governor Beshear issued Executive Order 2020-257, which provided further restrictions on businesses and organizations in the Commonwealth. A true and correct copy of Executive Order 2020-257 is attached hereto as EXHIBIT F and incorporated herein.
32. In Executive Order 2020-257, Governor Beshear provided further instructions and clarifications as to those businesses, entities, and organizations that may remain open if social distancing and personal hygiene practices are followed. EXHIBIT F at 2–4.
33. Executive Order 2020-257 exempted 19 broad categories of businesses from the mandated closure order, including so-called life-sustaining businesses (e.g., beer, wine, and liquor stores, warehouse clubs, and supercenters) exempted under Executive Order 2020-246 and “[c]arry-out, delivery, and drive-through food and beverage sales.” EXHIBIT F at 2–4.
34. Executive Order 2020-257 thus continued to prohibit religious or “faith-based” gatherings of any kind from occurring in the Commonwealth, regardless of whether such gatherings could meet the social distancing and personal hygiene guidelines pursuant to which exempted commercial and non-religious entities “where large numbers of people are present” were permitted to operate without scrutiny or numeric limitation.
35. Executive Order 2020-257 also expressly incorporated by reference the “CISA List” (EXHIBIT F at 2 ¶ 1.a), which as of March 28, 2020 referred to the U.S. Department of Homeland Security Cybersecurity and Infrastructure Agency updated guidance document, Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience In COVID-19 Response, Ver. 2.0 (Mar. 28, 2020) (“CISA Guidance 2.0”), which significantly
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expands beyond 19 the categories of business exempted from the GATHERING ORDERS, and also specifies “Clergy for essential support” as “essential critical infrastructure workers” who are “needed to maintain the services and functions Americans depend on daily and that need to be able to operate resiliently during the COVID-19 pandemic response,” and whose ability “to continue to work during periods of community restriction, access management, social distancing, or closure orders/directives is crucial to community resilience and continuity of essential functions.” A true and correct copy of the CISA Guidance 2.0 is attached hereto as EXHIBIT G and incorporated herein.
36. Plaintiffs hereinafter refer to Executive Order 2020-215, the March 16, 2020 Order, the March 17, 2020 Order, the March 19, 2020 Order, Executive Order 2020-246, and Executive Order 2020-257 (EXHIBITS A-G) collectively as the “GATHERING ORDERS.”
GOVERNOR BESHEAR’S EXPLICIT STATEMENTS OF HOSTILITY TOWARD RELIGIOUS GATHERINGS. 37. Despite exempting large categories of commercial and non-religious entities from the mandatory closures specified in the GATHERING ORDERS, even “where large numbers of people are present,” the Commonwealth has continued to prohibit faith-based and religious gatherings regardless of their ability to maintain the same social distancing and personal hygiene practices required of exempted businesses and organizations. 38. On April 10, 2020, Governor Beshear explicitly stated he would target all individuals who decided to engage in their constitutionally protected free exercise of religion and assembly by attending church on Easter Sunday. See Kevin Wheatley, Participants in weekend gatherings must self-quarantine for 2 weeks, Gov. Beshear says, WDRB.com (Apr. 10, 2020), https://www.wdrb.com/news/participants-in-weekend-gatherings-must-self-quarantine-for-2weeks-gov-beshear-says/article_01fa77c6-7b72-11ea-90c7-7747ea013459.html.
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39. In his press conference, Governor Beshear informed the Commonwealth that he had instructed the Kentucky State Police to collect the license plate information of all individuals who attended church on Easter Sunday and that such information would be forwarded to the local health departments to impose a mandatory self-quarantine for such individuals. See Wheatley, supra, ¶ 38.
40. In an official press release from the Office of the Governor on Good Friday, April 10, 2020, Governor Beshear explicitly threatened Plaintiffs and anyone else who would attend church on Easter Sunday with criminal violations. A true and correct copy of Governor Beshear’s Good Friday press release is attached hereto as EXHIBIT H and incorporated herein.
41. Also in his Good Friday press release, discussing individuals attending Easter worship services, Governor Beshear stated that “[a]nyone attending such a gathering will be notified that it is [sic] misdemeanor violation of the emergency orders issued by the Governor and Kentucky Department for Public Health.” EXHIBIT H at 1 (emphasis added).
42. Governor Beshear’s Good Friday press release again notified people that the Kentucky State Police would be collecting the license plate information of all cars attending a church service on Easter Sunday and that the government would subsequently require a mandatory self-quarantine of 14 days. EXHIBIT H at 2.
THE COMMONWEALTH’S ENFORCEMENT OF THE GATHERING ORDERS. 43. Consistent with Governor Beshear’s explicit threats to individuals attending religious services or faith-based gatherings on Easter Sunday, the Kentucky State Police stationed themselves at Maryville Baptist Church on Easter Sunday, April 12, 2020, to enforce the GATHERING ORDERS.
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44. The State Police affixed to cars parked in the Maryville Baptist Church parking lot
on Easter Sunday—both occupied and unoccupied (see Declaration of David Carr (“Carr
Declaration”), attached hereto as EXHIBIT I, ¶ 8)—the Commonwealth’s “NOTICE” to the cars’
owners and occupants, and their household members, of criminal violation of the GATHERING
ORDERS by their presence in the parking lot; the requirement for mandatory, household-wide
self-quarantine for 14 days on pain of further enforcement; and that disclosure of their attendance
at the Easter Service would be subject to public disclosure under Kentucky’s open records laws.
A true and correct copy of the NOTICE is attached hereto as EXHIBIT J and incorporated herein.
45. The NOTICE states:
NOTICE
This vehicle’s presence at this location indicates that its occupants are present at a mass gathering prohibited by Orders of the Governor and the Cabinet for Health and Family Services. As a result, this vehicle’s occupants, and anyone they come into contact with, are at risk of contracting COVID-19, a respiratory illness that can be severe and lead to death, particularly for older adults and those with underlying heart, lung, kidney, and immunity issues.
Where people congregate unnecessarily, or fail to follow adequate social distancing practices, they are spreading COVID-19, CREATING SCENES OF EMERGENCY
THIS VEHICLE’S LICENSE PLATE NUMBER HAS BEEN RECORDED.*
Employees of the local health department will be contacting those associated with this vehicle with self-quarantine documents, including an agreement requiring this vehicle’s occupants and anyone in the household to self-quarantine for 14 days. Failure to sign or comply with the agreement may result in further enforcement measures.
Please be advised that KRS 39A.990 makes it a Class A misdemeanor to violate an emergency order.
*Records maintained by the Commonwealth are subject to disclosure under the Open Records Act.
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Case 3:20-cv-00278-DJH-RSE Document 1 Filed 04/17/20 Page 14 of 53 PageID #: 14 (EXHIBIT J.) 46. A copy of the NOTICE is reproduced below:
(EXHIBIT J.) 47. Plaintiff Dr. Roberts received a copy of the NOTICE on his vehicle on Easter
Sunday April 12, 2020 in the Maryville Baptist Church parking lot. 48. Other members and attendees of the Church’s Easter Service received copies of the
NOTICE on their vehicles—not only those attending in-person, but also those attending only by “drive-in,” where the worship was broadcast on a loudspeaker in the parking lot, and they received copies of the NOTICE on their vehicles even though they remained in their vehicles.
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49. In addition to Plaintiff Dr. Roberts and other members and attendees of the Church’s Easter Service, some members of the media whose vehicles were in the Church’s parking lot—who are purportedly exempted from the GATHERING ORDERS’ prohibitions (see Exhibit F at 3)—also received the NOTICE on their vehicles, despite their not entering the Church building, as depicted below:
50. The very presence of the visibly uniformed and armed Kentucky State Police and their issuance of the NOTICE caused some members or prospective attendees of the Church’s Easter Service to leave the premises and forego attending the Service either in-person or by “drivein” for fear of criminal repercussions. At least two occupied vehicles left the Church’s parking lot immediately upon receiving the NOTICE. (Carr Decl., EXHIBIT I, ¶ 9.)
51. Kentucky State Police did not enter the church building at Maryville Baptist Church, did not verify that any occupant of any car in the parking lot was actually inside the
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church building, and did not witness the social distancing and hygiene practices employed by Maryville Baptist Church inside its building on Easter Sunday. The Kentucky State Police placed its NOTICE on cars in the Church’s parking lot solely because it was a parking lot associated with their targeted religious gathering.
52. Consistent with Governor Beshear’s threats to Plaintiffs for attending services at Maryville Baptist Church on Easter Sunday and subsequent NOTICE from the State Police, Plaintiff Dr. Roberts received a letter from the Commonwealth on April 15, 2020, informing him and his household that they are required to self-quarantine, in their home, for 14 days, solely because Dr. Roberts’ car was parked at the Church during its Easter Service. The mandatory quarantine letter purports to require each member of the household to sign an acknowledgement of the mandatory requirements of the quarantine, including reporting a daily temperature reading to the Bullitt County Health Department, not going to work, school, church, or any public place, and not traveling outside Kentucky or Bullitt County without government approval—all on pain of enforcement actions by “public health authorities.” A true and correct copy of the Commonwealth’s “LETTER” to Dr. Roberts is attached hereto as EXHIBIT K and incorporated herein.
53. The LETTER states that Dr. Roberts received the letter because his vehicle was parked in the parking lot at Maryville Baptist Church on Easter Sunday, April 12, 2020. EXHIBIT K at 1.
54. The LETTER informs Dr. Roberts that he is “advised to restrict movement to home while self-monitoring with public health supervision for 14 days.” EXHIBIT K at 1. It further demands that Dr. Roberts sign the attached acknowledgement “outlining [his] responsibilities during this period of isolation.” EXHIBIT K at 1.
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55. The LETTER further informs Dr. Roberts that various Kentucky laws “require [him] to implement control measures that are reasonable and necessary to prevent the introduction, transmission, and spread of the 2019 novel corona virus in this state” and that “[f]ailure to abide by these requests may result in additional actions by public health authorities.” EXHIBIT K at 1 (emphasis added).
MARYVILLE BAPTIST CHURCH’S EASTER SERVICE COMPLIED WITH SOCIAL DISTANCING AND HYGIENE GUIDELINES. 56. To comply with the CDC and other governmental social distancing and personal hygiene guidelines imposed by the Commonwealth’s GATHERING ORDERS (i.e., “where possible” and to the extent “practicable” for exempted businesses), for their Easter Sunday Service Plaintiffs initiated stringent social distancing for the small group inside the 700-seat sanctuary and personal hygiene protocols, and plan to continue such procedures for all church services held during the COVID-19 period. 57. The Church posted signs on all of its entrances stating that attendees were required to engage in the recommended social distancing while inside the building and supplied hand sanitizer for use by attendees. During the service, Plaintiff Dr. Roberts reiterated compliance with the guidelines for distancing and hygiene, and recommending the elderly and sick to stay at home. 58. All attendees of the Church’s Easter Service complied with the Church’s social distancing and hygiene requirements while inside the church building, and most exceeded the requirements by keeping distances of more than 6 feet between them. 59. The Church’s sanctuary can seat up to 700 people, but only a small fraction of that number entered the sanctuary on Easter Sunday. 60. In addition to the social distancing protocols for those members and attendees who entered the Church building on Easter Sunday, the Church posted signs outside the building noting
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Case 3:20-cv-00278-DJH-RSE Document 1 Filed 04/17/20 Page 18 of 53 PageID #: 18 that the Church also offered a “drive-in” service for those members and attendees who preferred to stay in their vehicles for the service. 61. The Church placed a loudspeaker outside the building to facilitate the “drive-in” service and broadcast the audio portion of the service over the loudspeaker for those listening from the parking lot. 62. Some members and attendees of the Church’s Easter Service elected to stay in their vehicles or in the open air of the parking lot to listen to the service on the loudspeaker, as shown below:
63. No person inside the Church building or in the Church parking lot on Easter Sunday was known or observed to by infected by or symptomatic of COVID-19.
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Case 3:20-cv-00278-DJH-RSE Document 1 Filed 04/17/20 Page 19 of 53 PageID #: 19 THE COMMONWEALTH’S UNEQUAL TREATMENT OF COMMERCIAL AND OTHER NON-RELIGIOUS GATHERINGS.
64. Immediately after the Church’s Easter Service, during which the Kentucky State Police had posted the NOTICE on cars in the Church’s parking lot, the parking lot of the nearby Walmart was packed with 100–150 vehicles not subject to such treatment, as depicted below:
(Carr Decl., EXHIBIT I, ¶ 11.) 65.
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Case 3:20-cv-00278-DJH-RSE Document 1 Filed 04/17/20 Page 20 of 53 PageID #: 20 66. At or about the same time, the parking lot at the nearby Kroger shopping center was
likewise packed with over 150 cars not subject to the same treatment as those at Maryville Baptist Church, as depicted below:
(Carr Decl., Exhibit I, ¶ 12.)
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Case 3:20-cv-00278-DJH-RSE Document 1 Filed 04/17/20 Page 21 of 53 PageID #: 21 67. In stark contrast to the large parking lots of the local Walmart and Kroger shopping
center, which had hundreds of vehicles parked outside at the same time as the Church was hosting its Easter Service, the small parking lot of the Church had relatively few cars in it, as shown below:
(Carr Decl., Exhibit I, ¶ 7.) 68. Nevertheless, the Church and its attendees were targeted for disparate and
discriminatory treatment by the Commonwealth in stationing Kentucky State Police in the Church parking lot and posting the NOTICE on occupied and unoccupied vehicles in the lot.
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LESS RESTRICTIVE ALTERNATIVES TO THE GATHERING ORDERS, NOTICE, AND LETTER ARE AVAILABLE TO THE COMMONWEALTH. 69. Despite the Commonwealth’s insistence that “faith-based” or religious gatherings cannot continue because they would spread COVID-19, the Commonwealth has failed to consider other, substantially less restrictive alternatives to a total prohibition on religious gatherings. 70. Like the Commonwealth, the State of Florida has issued stay-at-home executive orders and required the closure of all so-called “non-essential businesses,” but managed to do so without unnecessarily discriminating against religious gatherings. On April 1, 2020, Florida Governor Ron DeSantis issued Executive Order 20-91, which included “religious services conducted in churches, synagogues, and houses of worship” as essential businesses able to continue to meet provided social distancing and personal hygiene practices were followed. A true and correct copy of Florida Executive Order 20-91 is attached hereto as EXHIBIT L and incorporated herein. 71. The State of Indiana has likewise issued stay-at-home executive orders and required the closure of all so-called “non-essential businesses,” but managed to do so without unnecessarily discriminating against religious gatherings. Governor Eric. J. Holcomb’s Executive Order 20-08 also declared that “[r]eligious facilities, entities and groups, and religious gatherings” are essential businesses and may continue to operate provided they follow appropriate social distancing and personal hygiene practices. A true and correct copy of Indiana’s Executive Order 20-08 is attached hereto as EXHIBIT M and incorporated herein. 72. The State of Arizona, in Executive Order 2020-18, classified religious services as essential and also permitted them to meet provided social distancing and personal hygiene practices were followed. A true and correct copy of Arizona Executive Order 2020-18 is attached hereto as EXHIBIT N and incorporated herein.
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73. The State of Alabama, in its final Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19, issued April 3, 2020, exempts individuals attending religious worship services in person subject to certain requirements and permits “drive-in” worship services. A true and correct copy of the Alabama Order is attached hereto as EXHIBIT O and incorporated herein.
74. The State of Arkansas has likewise exempted “places of worship” from its Executive Order 20-13 imposing restrictions to prevent the spread of COVID-19, provided that they engage in adequate social distancing and personal hygiene practices. A true and correct copy of the Arkansas Executive Order is attached hereto as EXHIBIT P and incorporated herein.
75. The State of Connecticut has similarly shown that other, less restrictive alternatives are available. In Executive Order No. 7N, Governor Ned Lamont permitted religious services to continue to meet, but limited their in-person gatherings to 50 people, as opposed to the six-person limit applicable to other gatherings. A true and correct copy of the Connecticut Executive Order No. 7N is attached hereto as EXHIBIT Q and incorporated herein.
76. Numerous other states have similarly permitted religious gatherings to be treated equally with non-religious gatherings.
77. As these other states have demonstrated, the government can continue to pursue its objective of preventing the spread of COVID-19 without unnecessarily treating religious gatherings in a discriminatory manner and have numerous other, less restrictive alternatives available to it to do so.
78. The Commonwealth has neither tried without success nor considered and ruled out for good reason these less restrictive alternatives.
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79. The Commonwealth has constitutionally permissible alternatives available, but it has failed to attempt to achieve its purported goals without unnecessarily interfering with constitutionally protected activities.
PLAINTIFFS’ IRREPARABLE INJURY RESULTING FROM THE COMMONWEALTH’S GATHERING ORDERS. 80. Despite following all social distancing and personal hygiene protocols recommended by the CDC and specified in the Commonwealth’s GATHERING ORDERS, Plaintiffs have been explicitly targeted, singled out, and punished for participating in a religious or “faith-based” gathering when gatherings involving numerous commercial or non-religious entities “where large numbers of people are present” are permitted without numeric limitation, and without targeting or punishment by the government. 81. Members and attendees of the Church have been stigmatized and subjected to adverse employment action by their employers, including immediate furlough and constructive furlough forced by professional ostracization, as a result of merely attending services at the Church, due to the public targeting of faith-based gatherings by Governor Beshear and the specific public targeting of Plaintiffs and enforcement of the GATHERING ORDERS against Plaintiffs by the Kentucky State Police. 82. As a result of the Commonwealth’s GATHERING ORDERS, Plaintiffs have suffered and are suffering irreparable injury by being prohibited from engaging in their constitutionally and statutorily protected rights of free exercise, assembly, and speech. 83. As a result of the Commonwealth’s GATHERING ORDERS, Plaintiffs have suffered and are suffering irreparable injury by being prohibited from engaging in their constitutionally protected rights to be free from government hostility toward religion.
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84. As a result of the Commonwealth’s GATHERING ORDERS, Plaintiffs have suffered and are suffering irreparable injury by being deprived of their constitutionally protected rights to equal protection.
85. As a result of the Commonwealth’s NOTICE to Plaintiff Dr. Roberts and other members and attendees of the Church, Plaintiffs have suffered and are suffering irreparable injury by the Commonwealth’s threat of criminal sanctions against Dr. Roberts and the Church’s members and attendees for merely exercising their constitutionally protected freedoms, and for failing to self-quarantine as a consequence of their merely exercising their constitutionally protected freedoms.
86. As a result of the Commonwealth’s LETTER to Plaintiff Dr. Roberts and to other members and attendees of the Church, following the Commonwealth’s NOTICE, imposing a household-wide self-quarantine on each recipient and threatening criminal sanctions for noncompliance, Plaintiffs have suffered and are suffering irreparable injury by the Commonwealth’s threat of criminal sanctions against Dr. Roberts and the Church’s members and attendees for failing to self-quarantine as a consequence of their merely exercising their constitutionally protected freedoms.
PLAINTIFFS’ ATTEMPTS TO SECURE RELIEF WITHOUT JUDICIAL INTERVENTION WERE IGNORED, AND FURTHER ATTEMPTS TO NOTIFY THE COMMONWEALTH ARE FUTILE AND IMPRACTICAL BEFORE THIS SUNDAY. 87. At approximately 9:00 P.M. E.D.T. on April 15, 2020—the same day Plaintiff Dr. Roberts and other members and attendees of the Church received the Commonwealth’s LETTER, further enforcing the Commonwealth’s NOTICE and GATHERING ORDERS, and prior to the commencement of the instant action—Plaintiffs’ counsel sent by e-mail a demand letter to Governor Beshear (c/o La Tasha Buckner, Governor Beshear’s Chief of Staff and General
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Counsel, Latasha.buckner@ky.gov), Eric Friedlander, Acting Secretary, Kentucky Cabinet for Health and Family Services (Eric.Friedlander@ky.gov), and Andrea Renfrow, Public Health Director, Bullitt County Health Department (Andrea.Renfrow@ky.gov), with a copy to Shawna Kincer, General Counsel, Kentucky State Police (Shawna.Kincer@ky.gov), in which Plaintiffs’ counsel demanded, by 2:00 P.M. on April 16, written confirmation that the officials have withdrawn the church gathering bans embodied in the GATHERING ORDERS, will allow individuals to attend church services consistent with social distancing guidelines, and will cease enforcement of any church gathering bans against members and attendees of the Church’s services through means such as patrolling the Church’s parking lot, issuing the NOTICE, or sending the LETTER. Between 9:30 and 10:00 A.M. on April 16, 2020, Plaintiffs’ counsel attempted to reach by telephone each of the primary addressees of the demand letter but was unable to speak to any of them. No written response from any Commonwealth or County official was received by the requested 2:00 P.M. deadline, or at any time prior to the filing of this complaint.
88. The failure of the Commonwealth’s officials to confirm withdrawal or cessation of enforcement of the church gathering ban embodied in the GATHERING ORDERS and applied to Plaintiffs and other members and attendees of the Church through the NOTICE and the LETTER shows that Plaintiffs’ irreparable injury to their constitutionally protected freedoms is ongoing.
89. The failure of the Commonwealth’s officials to respond to Plaintiffs’ communication also shows that notice and an opportunity to respond to this lawsuit cannot be effectuated, and would be futile, prior to this Sunday’s worship activities at the Church, when the Commonwealth will again interfere with the constitutional liberties of Plaintiffs absent a temporary restraining order from this Court.
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CONSTITUTIONAL CLAIMS COUNT I — THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS TO FREEDOM OF ASSEMBLY
UNDER THE FIRST AMENDMENT. 90. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above. 91. The First Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, prohibits the Commonwealth from abridging the right of the people peaceably to assemble. 92. The GATHERING ORDERS, on their face and as applied, are an unconstitutional prior restraint on Plaintiffs’ right to assemble. 93. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of viewpoint. 94. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of content. 95. Defendant lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of differential standards for churches and faith-based gatherings than those applicable to so-called “life-sustaining” businesses or non-religious entities. 96. The GATHERING ORDERS, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served by the orders. 97. The GATHERING ORDERS, on their face and as applied, are not narrowly tailored to serve the government’s purported interest. 98. The GATHERING ORDERS, on their face and as applied, do not leave open ample alternative channels of communication for Plaintiffs.
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99. The GATHERING ORDERS, on their face and as applied, are irrational and unreasonable and impose unjustifiable and unreasonable restrictions on Plaintiffs’ constitutionally protected right to assemble.
100. The GATHERING ORDERS, on their face and as applied, impermissibly vest unbridled discretion in the hands of government officials, including Governor Beshear and his designees, to apply or not apply the GATHERING ORDERS in a manner to restrict free assembly.
101. The GATHERING ORDERS, on their face and as applied, are underinclusive by limiting their gathering prohibitions to only certain businesses or organizations deemed “non-lifesustaining.”
102. The GATHERING ORDERS, on their face and as applied, are unconstitutionally vague and overbroad as they chill and abridge the free assembly rights of Plaintiffs.
103. On their face and as applied, the GATHERING ORDERS’ violation of Plaintiffs’ right to free assembly have caused, are causing, and will continue to cause Plaintiffs to suffer immediate and irreparable injury and undue and actual hardship.
104. Plaintiffs have no other adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
COUNT II — THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS TO FREEDOM OF SPEECH UNDER THE FIRST AMENDMENT
105. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above.
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106. The Free Speech Clause of the First Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, prohibits the Commonwealth from abridging Plaintiffs’ freedom of speech.
107. The GATHERING ORDERS, on their face and as applied, are an unconstitutional prior restraint on Plaintiffs’ speech.
108. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of viewpoint.
109. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of content.
110. The Commonwealth lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of different standards for churches and faith-based gatherings than those applicable to exempted businesses and non-religious entities.
111. The GATHERING ORDERS, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served by the orders.
112. The GATHERING ORDERS, on their face and as applied, are not narrowly tailored to serve the government’s purported interest.
113. The GATHERING ORDERS, on their face and as applied, do not leave open ample alternative channels of communication for Plaintiffs.
114. The GATHERING ORDERS, on their face and as applied, are irrational and unreasonable and impose unjustifiable and unreasonable restrictions on Plaintiffs’ constitutionally protected speech.
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115. The GATHERING ORDERS, on their face and as applied, impermissibly vest unbridled discretion in the hands of government officials, including Governor Beshear and his designees, to apply or not apply the GATHERING ORDERS in a manner to restrict free speech.
116. The GATHERING ORDERS, on their face and as applied, are underinclusive by limiting their prohibitions to only certain entities, organizations, or businesses deemed non-lifesustaining.
117. The GATHERING ORDERS, on their face and as applied, are unconstitutionally overbroad as they chill and abridge the free speech rights of Plaintiffs.
118. On their face and as applied, the GATHERING ORDERS’ violation of Plaintiffs’ rights to free speech have caused, are causing, and will continue to cause Plaintiffs to suffer immediate and irreparable injury and undue and actual hardship.
119. Plaintiffs have no other adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
COUNT III — THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS TO FREE EXERCISE OF RELIGION
UNDER THE FIRST AMENDMENT 120. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above. 121. The Free Exercise Clause of the First Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, prohibits the Commonwealth from abridging Plaintiffs’ rights to free exercise of religion. 122. Plaintiffs have sincerely held religious beliefs that Scripture is the infallible, inerrant word of the Lord Jesus Christ, and that they are to follow its teachings.
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123. Plaintiffs have sincerely held religious beliefs, rooted in Scripture’s commands (e.g., Hebrews 10:25), that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis. Indeed, the entire purpose of the Church (in Greek “ekklesia,” meaning “assembly”) is to assemble together Christians to worship Almighty God.
124. The GATHERING ORDERS, on their face and as applied, target Plaintiffs’ sincerely held religious beliefs by prohibiting faith-based gatherings.
125. The GATHERING ORDERS, on their face and as applied, impermissibly burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs in the commands of Scripture and the Commonwealth’s imposed value system.
126. The GATHERING ORDERS, on their face and as applied, place Plaintiffs in an irresolvable conflict between compliance with the GATHERING ORDERS and their sincerely held religious beliefs.
127. The GATHERING ORDERS, on their face and as applied, put substantial pressure on Plaintiffs to violate their sincerely held religious beliefs by ignoring the fundamental teachings and tenets of Scripture concerning the assembling of Believers.
128. The GATHERING ORDERS, on their face and as applied, are neither neutral nor generally applicable, but rather specifically and discriminatorily target the religious beliefs, speech, assembly, and viewpoint of Plaintiffs.
129. The GATHERING ORDERS, on their face and as applied, constitute a substantial burden on Plaintiffs’ sincerely held religious beliefs.
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130. The Commonwealth lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of different standards for churches and faith-based gatherings than those applicable to exempted businesses or non-religious entities.
131. Even if the GATHERING ORDERS’ restriction on faith-based gatherings were supported by a compelling interest, which it is not, they are not the least restrictive means to accomplish the government’s purported interest.
132. The GATHERING ORDERS, on their face and as applied, fail to accommodate Plaintiffs’ sincerely held religious beliefs.
133. The GATHERING ORDERS, on their face and as applied, specifically target Plaintiffs’ sincerely held religious beliefs and set up a system of individualized exemptions that permits certain other similarly situated businesses or non-religious entities to continue operations under certain guidelines while prohibiting faith-based gatherings, such as Plaintiffs’ church and religious gatherings, from operating with similar guidelines.
134. The GATHERING ORDERS, on their face and as applied, constitute an overt religious gerrymander.
135. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
136. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
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COUNT IV — THE GATHERING ORDERS VIOLATE THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT 137. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above. 138. The Establishment Clause of the First Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, prohibits the government from establishing a religion. 139. The Establishment Clause also prohibits excessive government entanglement with religion. 140. The Establishment Clause also prohibits the government from showing hostility towards religion and prohibits showing favoritism towards one religious sect over another or between non-religion and religion. 141. The GATHERING ORDERS, on their face and as applied, permit the Commonwealth to display impermissible hostility towards religious or faith-based gatherings. 142. The GATHERING ORDERS, on their face and as applied, impermissibly show favoritism towards certain non-religious gatherings over religious or faith-based gatherings. 143. The GATHERING ORDERS, on their face and as applied, violate the Establishment Clause because they excessively entangle the government with religion. 144. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship. 145. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished constitutional liberties.
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WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
COUNT V — THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHT TO EQUAL PROTECTION UNER THE FOURTEENTH AMENDMENT
146. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above.
147. The Fourteenth Amendment to the United States Constitution guarantees Plaintiffs the right to equal protection under the law.
148. The GATHERING ORDERS, on their face and as applied, are an unconstitutional abridgement of Plaintiffs’ right to equal protection under the law, are not neutral, and specifically target Plaintiffs and other faith-based gatherings for unequal treatment.
149. The GATHERING ORDERS, on their face and as applied, are an unconstitutional abridgment of Plaintiffs’ right to equal protection because they permit the Commonwealth to treat Plaintiffs differently from other similarly situated businesses and non-religious entities on the basis of the content and viewpoint of Plaintiffs’ gatherings.
150. The GATHERING ORDERS, on their face and as applied, impermissibly discriminate between certain non-religious gatherings and religious or faith-based gatherings.
151. Defendant lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of different standards for churches and faith-based gatherings than those applicable to exempted businesses or non-religious entities.
152. The GATHERING ORDERS, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served.
153. The GATHERING ORDERS, on their face and as applied, do not have a rational basis.
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154. The GATHERING ORDERS, on their face and as applied, are irrational and unjustifiable and impose irrational and unjustifiable restrictions on Plaintiffs’ religious or faithbased gatherings.
155. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
156. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
COUNT VI — THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHT TO A REPUBLICAN FORM OF GOVERNMENT
UNDER THE GUARANTEE CLAUSE OF ARTICLE IV, § 4 OF THE UNITED STATES CONSTITUTION
157. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above.
158. Article IV, § 4 of the United States Constitution requires the United States to guarantee to every citizen in the nation a republican form of government.
159. The Guarantee Clause’s distinguishing feature is that the republican form of government that it guarantees is the right of the people to choose their own governmental administration and pass their own laws.
160. As interpreted by the federal judiciary and prominent scholars, the Guarantee Clause mandates that the federal government guarantee a form of government for all citizens in which supreme power resides in a body of citizens entitled to vote and exercised by elected officers responsible to such citizens.
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161. The GATHERING ORDERS’ express, unilateral, and unequivocal exercise of executive authority purportedly over the constitutional rights of Plaintiffs deprive Plaintiffs of the right to select their own government administration, pass their own laws, and maintain a government administration directly responsible to the people, including by laws that are enacted by the legislature in constitutional recognition of the separation of powers.
162. The impermissible exercise of exclusive and unaccountable executive authority violates the Guarantee Clause of the United States Constitution.
163. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
164. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
COUNT VII — THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHT TO ASSEMBLE UNDER SECTION 1 OF THE BILL OF RIGHTS OF THE KENTUCKY CONSTITUTION 165. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above. 166. Section 1 of the Bill of Rights of the Kentucky Constitution gives all men the “inherent and inalienable” right “of assembling together in a peaceable manner for their common good.” 167. The GATHERING ORDERS, on their face and as applied, are an unconstitutional prior restraint on Plaintiffs’ right to assemble.
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168. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of viewpoint.
169. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of content.
170. The Commonwealth lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of different standards for churches and faith-based gatherings than those applicable to other so-called “non-life-sustaining” businesses or services.
171. The GATHERING ORDERS, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served by the orders.
172. The GATHERING ORDERS, on their face and as applied, are not narrowly tailored to serve the government’s purported interest.
173. The GATHERING ORDERS, on their face and as applied, do not leave open ample alternative channels of communication for Plaintiffs.
174. The GATHERING ORDERS, on their face and as applied, are irrational and unreasonable and impose unjustifiable and unreasonable restrictions on Plaintiffs’ constitutionally protected right to assembly.
175. The GATHERING ORDERS, on their face and as applied, impermissibly vest unbridled discretion in the hands of government officials, including Governor Beshear and his designees, to apply or not apply the GATHERING ORDERS in a manner to restrict free assembly.
176. The GATHERING ORDERS, on their face and as applied, are underinclusive by limiting their prohibitions to only certain entities, organizations, or businesses deemed non-lifesustaining.
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177. The GATHERING ORDERS, on their face and as applied, are unconstitutionally vague and overbroad as they chill and abridge the free assembly rights of Plaintiffs.
178. On their face and as applied, the GATHERING ORDERS’ violation of Plaintiffs’ rights to free assembly have caused, are causing, and will continue to cause Plaintiffs to suffer immediate and irreparable injury and undue and actual hardship.
179. Plaintiff have no other adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
COUNT VIII — THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHT TO FREE SPEECH UNDER SECTION I OF THE BILL OF RIGHTS OF THE KENTUCKY CONSTITUTION 180. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above. 181. Section 1 of the Bill of Rights of the Kentucky Constitution gives all men the “inherent and inalienable” right of “freely communicating their thoughts and opinions.” 182. The GATHERING ORDERS, on their face and as applied, are an unconstitutional prior restraint on Plaintiffs’ speech. 183. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of viewpoint. 184. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of content. 185. The Commonwealth lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of differential standards for churches and faith-based gatherings than those applicable to other so-called “non-life-sustaining” businesses or services.
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186. The GATHERING ORDERS, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served by the orders.
187. The GATHERING ORDERS, on their face and as applied, are not narrowly tailored to serve the government’s purported interest.
188. The GATHERING ORDERS, on their face and as applied, do not leave open ample alternative channels of communication for Plaintiffs.
189. The GATHERING ORDERS, on their face and as applied, are irrational and unreasonable and impose unjustifiable and unreasonable restrictions on Plaintiffs’ constitutionally protected speech.
190. The GATHERING ORDERS, on their face and as applied, impermissibly vest unbridled discretion in the hands of government officials, including Governor Beshear, to apply or not apply the GATHERING ORDERS in a manner to restrict free speech.
191. The GATHERING ORDERS, on their face and as applied, are underinclusive by limiting their prohibitions to only certain entities, organizations, or businesses deemed non-lifesustaining.
192. The GATHERING ORDERS, on their face and as applied, are unconstitutionally overbroad as they chill and abridge the free speech rights of Plaintiffs.
193. On their face and as applied, the GATHERING ORDERS’ violation of Plaintiffs’ rights to free speech have caused, are causing, and will continue to cause Plaintiffs to suffer immediate and irreparable injury and undue and actual hardship.
194. Plaintiffs have no other adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
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WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as
hereinafter set forth in their prayer for relief.
COUNT IX — THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHT TO FREE EXERCISE AND
ENJOYMENT OF RELIGION UNDER SECCTIONS 1 AND 5 OF THE BILL OF RIGHTS OF THE KENTUCKY CONSTITUTION 195. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89
above.
196. Section 1 of the Bill of Rights of the Kentucky Constitution states that all men have
the “inherent and inalienable” right of “worshipping Almighty God according to the dictates of
their consciences.”
197. Section 5 of the Bill of Rights of the Kentucky Constitution states that
No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience. (Emphasis added.)
198. Plaintiffs have sincerely held religious beliefs that Scripture is the infallible,
inerrant word of the Lord Jesus Christ, and that they are to follow its teachings.
199. Plaintiffs have sincerely held religious beliefs, rooted in Scripture’s commands
(e.g., Hebrews 10:25), that followers of Jesus Christ are not to forsake the assembling of
themselves together, and that they are to do so even more in times of peril and crisis. Indeed, the
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entire purpose of the Church (in Greek “ekklesia,” meaning “assembly”) is to assemble together Christians to worship Almighty God.
200. The GATHERING ORDERS, on their face and as applied, targets Plaintiffs’ sincerely held religious beliefs by prohibiting faith-based gatherings.
201. The GATHERING ORDERS, on their face and as applied, impermissibly burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs in the commands of Scripture and the Commonwealth’s imposed value system.
202. The GATHERING ORDERS, on their face and as applied, place Plaintiffs in an irresolvable conflict between compliance with the GATHERING ORDERS and their sincerely held religious beliefs.
203. The GATHERING ORDERS, on their face and as applied, put substantial pressure on Plaintiffs to violate its sincerely held religious beliefs by ignoring the fundamental teachings and tenets of Scripture concerning the assembling of Believers.
204. The GATHERING ORDERS, on their face and as applied, purport to exercise control and interference with Plaintiffs’ constitutionally protected rights of conscience.
205. The GATHERING ORDERS, on their face and as applied, purport to prohibit Plaintiffs from worshipping Almighty God in accordance with the dictates of their conscience.
206. The GATHERING ORDERS, on their face and as applied, are neither neutral nor generally applicable, but rather specifically and discriminatorily targets the religious beliefs, speech, assembly, and viewpoint of Plaintiffs.
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207. The GATHERING ORDERS, on their face and as applied, constitute a substantial burden on Plaintiffs’ sincerely held religious beliefs.
208. The Commonwealth lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of different standards for churches and faith-based gatherings than those applicable to exempted businesses and non-religious entities.
209. Even if the GATHERING ORDERS’ restriction on faith-based gatherings was supported by a compelling interest, which it is not, they are not the least restrictive means to accomplish the government’s purported interest.
210. The GATHERING ORDERS, on their face and as applied, fail to accommodate Plaintiffs’ sincerely held religious beliefs.
211. The GATHERING ORDERS, on their face and as applied, specifically target Plaintiffs’ sincerely held religious beliefs and set up a system of individualized exemptions that permits certain other similarly situated businesses or non-religious entities to continue operations under certain guidelines while prohibiting faith-based gatherings, such as Plaintiffs’ church and religious gatherings, from operating with similar guidelines.
212. The GATHERING ORDERS, on their face and as applied, constitute a religious gerrymander.
213. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
214. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
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WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
COUNT X — THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHT TO HAVE LAWS SUSPENDED ONLY BY THE
KENTUCKY LEGISLATURE 215. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above. 216. Section 15 of the Bill of Rights of the Kentucky Constitution states that “[n]o power to suspend laws shall be exercised unless by the General Assembly.” 217. The GATHERING ORDERS’ express, unilateral, and unequivocal exercise of executive authority purportedly over the constitutional rights of Plaintiffs deprive Plaintiffs of the right to select their own government administration, pass their own laws, and maintain a government administration directly responsible to the people, including by laws that are enacted by the legislature. 218. The impermissible exercise of such executive authority violated the Kentucky Constitution by purporting to suspend constitutional rights and laws of the Commonwealth without legislative exercise of such suspension. 219. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship. 220. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties. WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
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STATUTORY CLAIMS COUNT XI — THE GATHERING ORDERS VIOLATE
PLAINTIFFS’ RIGHTS UNDER THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT 221. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above. 222. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”) states that “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.” 42 U.S.C. § 2000cc(a)(1). If the government does impose such a restriction, it must then demonstrate that such a burden on the religious assembly is supported by a compelling interest and is the least restrictive means to further that alleged interest. 223. RLUIPA further mandates that no government “impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). 224. RLUIPA further states that “[n]o government shall impose or implement a land use regulation that (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3). 225. Plaintiffs have sincerely held religious beliefs that Scripture is the infallible, inerrant word of the Lord Jesus Christ, and that they are to follow its teachings. 226. Plaintiffs have sincerely held religious beliefs, rooted in Scripture’s commands (e.g., Hebrews 10:25), that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis. Indeed, the
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entire purpose of the Church (in Greek “ekklesia,” meaning “assembly”) is to assemble together Christians to worship Almighty God.
227. The GATHERING ORDERS, on their face and as applied, target Plaintiffs’ sincerely held religious beliefs by prohibiting faith-based gatherings.
228. The GATHERING ORDERS, on their face and as applied, impermissibly and substantially burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs in the commands of Scripture and the Commonwealth’s imposed value system.
229. The GATHERING ORDERS, on their face and as applied, constitute a substantial burden on Plaintiffs’ sincerely held religious beliefs.
230. The Commonwealth lacks a compelling interest in the GATHERING ORDERS’ application of different standards for churches and faith-based gatherings than those applicable to exempted businesses and non-religious entities.
231. Even if the GATHERING ORDERS’ restrictions on faith-based gatherings was supported by a compelling interest, which it is not, they are not the least restrictive means to accomplish the government’s purported interest.
232. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
233. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
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WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
COUNT XII — THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS UNDER THE
KENTUCKY RELIGIOUS FREEDOM RESTORATION ACT 234. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–89 above. 235. The Kentucky Religious Freedom Restoration Act, Ky. Rev. Stat. § 446.350 [hereinafter KRFRA], prohibits the government from substantially burdening a person’s exercise of religion. 236. If the government does burden an individual’s exercise of religion, it must demonstrate “by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.” KRFRA. 237. Plaintiffs have sincerely held religious beliefs that Scripture is the infallible, inerrant word of the Lord Jesus Christ, and that they are to follow its teachings. 238. Plaintiffs have sincerely held religious beliefs, rooted in Scripture’s commands (e.g., Hebrews 10:25), that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis. Indeed, the entire purpose of the Church (in Greek “ekklesia,” meaning “assembly”) is to assemble together Christians to worship Almighty God. 239. The GATHERING ORDERS, on their face and as applied, target Plaintiffs’ sincerely held religious beliefs by prohibiting faith-based gatherings. 240. The GATHERING ORDERS, on their face and as applied, impermissibly and substantially burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change
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those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs in the commands of Scripture and the Commonwealth’s imposed value system.
241. The GATHERING ORDERS, on their face and as applied, constitute a substantial burden on Plaintiffs’ sincerely held religious beliefs.
242. The Commonwealth lacks a compelling interest in the GATHERING ORDERS’ application of differential standards for churches and faith-based gatherings than those applicable to other so-called “non-life-sustaining” businesses or services.
243. Even if the GATHERING ORDERS’ restriction on faith-based gatherings was supported by a compelling interest, which it is not, they are not the least restrictive means to accomplish the government’s purported interest.
244. The Commonwealth has not and cannot demonstrate clear and convincing evidence of a compelling government interest in treating Plaintiffs’ faith-based or religious gatherings differently than gatherings of exempted businesses and non-religious entities.
245. The Commonwealth has not and cannot demonstrate by clear and convincing evidence that it has deployed the least restrictive means to further its purported compelling interest.
246. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
247. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the Commonwealth as hereinafter set forth in their prayer for relief.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows: A. That the Court issue a Temporary Restraining Order restraining and enjoining Governor Beshear, all Commonwealth officers, agents, employees, and attorneys, and all other persons in active concert or participation with them, from enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with the GATHERING ORDERS or any other order to the extent any such order prohibits drive-in church services at the Church, or inperson church services at the Church if the Church meets the social distancing and hygiene guidelines pursuant to which the Commonwealth allows so-called “life-sustaining” commercial and non-religious entities (e.g., beer, wine, and liquor stores, warehouse clubs, and supercenters) to accommodate large gatherings of persons without numerical limit. B. That the Court issue a Preliminary Injunction pending trial, and a Permanent Injunction upon judgment, restraining and enjoining Governor Beshear, all Commonwealth officers, agents, employees, and attorneys, and all other persons in active concert or participation with them, from enforcing the GATHERING ORDERS so that:
i. The Commonwealth will not apply the GATHERING ORDERS in any manner as to infringe Plaintiffs’ constitutional and statutory rights by discriminating against their right to assembly, speech, free exercise of religion, equal protection, and all other constitutional and statutory rights outlined herein;
ii. The Commonwealth will apply the GATHERING ORDERS in a manner that treats Plaintiffs’ faith-based gatherings on equal terms as gatherings for or in so-called life-sustaining businesses and non-religious entities;
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iii. The Commonwealth will permit faith-based gatherings so long as they comply with the same social distancing and personal hygiene recommendations pursuant to which the Commonwealth allows so-called “life-sustaining” commercial and non-religious entities (e.g., beer, wine, and liquor stores, warehouse clubs, and supercenters) to accommodate large gatherings of persons without numerical limit under the GATHERING ORDERS;
iv. The Commonwealth will permit Plaintiffs the opportunity to comport their behavior to any further limitations or restrictions that the Commonwealth may impose in any future modification, revision, or amendment of the GATHERING ORDERS or similar legal directive;
v. The Commonwealth will cease issuing notices of criminal violation and mandatory, household-wide self-quarantine on the vehicles in the parking lot of Plaintiff Maryville Baptist Church, such as the NOTICE issued by the Kentucky State Police on the vehicles in the Church’s parking lot on Easter Sunday, solely because such vehicles are on the Church’s premises during a religious gathering;
vi. The Commonwealth will revoke the self-quarantine LETTER issued to Plaintiff Dr. Roberts; and
vii. The Commonwealth will not bring any further enforcement, criminal, or other public health actions against Plaintiffs as threatened in Governor Beshear’s public statements, in the NOTICE, and in the LETTER.
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C. That the Court render a Declaratory Judgment declaring that the GATHERING ORDERS both on their face and as applied by the Commonwealth are unconstitutional under the United States Constitution and Kentucky Constitution, and further declaring that:
i. The Commonwealth has violated Plaintiffs’ rights to freedom of assembly by impermissibly prohibiting faith-based gatherings;
ii. The Commonwealth has violated Plaintiffs’ rights to freedom of speech by impermissibly prohibiting faith-based gatherings;
iii. The Commonwealth has violated Plaintiffs’ rights to free exercise of religion by impermissibly prohibiting faith-based gatherings, substantially burdening their sincerely held religious beliefs, applying criteria that are neither neutral nor generally applicable to religious and non-religious gatherings, by establishing a religious gerrymander against faith-based gatherings, and by establishing a system of individualized exemptions that exclude similarly situated non-religious gatherings from the prohibitions applicable to Plaintiffs’ religious and faith-based gatherings;
iv. The Commonwealth has violated Plaintiffs’ rights to equal protection of the laws by impermissibly prohibiting faith-based gatherings, and by applying criteria that treats faith-based gatherings in a discriminatory and dissimilar manner as that applied to various non-religious gatherings;
v. The Commonwealth has violated the Establishment Clause by impermissibly demonstrating hostility towards faith-based gatherings and by impermissibly showing favoritism to certain non-religious gatherings;
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vi. The Commonwealth has violated the Guarantee Clause by impermissibly exercising executive authority in an unconstitutional manner;
vii. The Commonwealth has violated the Religious Land Use and Institutionalized Persons Act by substantially and impermissibly burdening Plaintiffs’ sincerely held religious beliefs and treating unequally as compared to other non-religious assemblies or institutions, by imposing draconian prohibitions on Plaintiffs’ sincerely held religious beliefs without a compelling government interest, and without deploying the least restrictive means to achieve any permissible government interest; and
viii. The Commonwealth has violated the Kentucky Religious Freedom Restoration Act by substantially and impermissibly burdening Plaintiffs’ sincerely held religious beliefs and treating them unequally as compared to other non-religious assemblies or institutions, by imposing draconian prohibitions on Plaintiffs’ sincerely held religious beliefs without a compelling government interest, without deploying the least restrictive means to achieve any permissible government interest, and without providing clear and convincing evidence that its GATHERING ORDERS are supported by a compelling government interest and deploy the least restrictive means.
D. That the Court award Plaintiffs nominal damages for the violation of Plaintiffs’ constitutional rights.
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E. That the Court adjudge, decree, and declare the rights and other legal relations within the subject matter here in controversy so that such declaration shall have the full force and effect of final judgment.
F. That the Court retain jurisdiction over the matter for the purposes of enforcing the Court’s order.
G. That the Court declare Plaintiffs are prevailing parties and award Plaintiffs the reasonable costs and expenses of this action, including a reasonable attorney’s fee, in accordance with 42 U.S.C. § 1988.
H. That the Court grant such other and further relief as the Court deems equitable and just under the circumstances.
DATED this April 17, 2020. Respectfully submitted, s/ Horatio G. Mihet Mathew D. Staver* Horatio G. Mihet* Roger K. Gannam* Daniel J. Schmid* LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 (407) 875-1776 court@LC.org hmihet@LC.org rgannam@LC.org dschmid@LC.org Attorneys for Plaintiffs *Pro hac vice applications pending
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VERIFICATION I, Dr. Jack Roberts, am over the age of eighteen years, the Founder and Senior Pastor of Maryville Baptist Church, and am one of the Plaintiffs in this action. The statements and allegations that pertain to me and/or Plaintiff Maryville Baptist Church or which I make in this VERIFIED COMPLAINT are true and correct, and based upon my personal knowledge (unless otherwise indicated). If called upon to testify to their truthfulness, I would and could do so competently. I declare under penalty of perjury, under the laws of the United States and the Commonwealth of Kentucky, that the foregoing statements are true and correct to the best of my knowledge. Executed this April 17, 2020.
s/ Dr. Jack Roberts Dr. Jack Roberts

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JS 44 (Rev. 06/17)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Maryville Baptist Church, Inc.; Dr. Jack Roberts
(b) County of Residence of First Listed Plaintiff Bullitt
(EXCEPT IN U.S. PLAINTIFF CASES)

Hon. Andrew Beshear, in his official capacity as Governor of the Commonwealth of Virginia
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Mathew D. Staver, Horatio G. Mihet, Roger K. Gannam, Daniel J. Schmid, LIBERTY COUNSEL, P.O. Box 540774, Orlando, FL 32854; Phone: (407) 875-1776, Fax: (407) 875-0770; Email: court@lc.org

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

u 1 U.S. Government Plaintiff

u 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

u 1 u 1 Incorporated or Principal Place

u 4 u4

of Business In This State

u 2 U.S. Government Defendant

u 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

u 2 u 2 Incorporated and Principal Place of Business In Another State

u 5 u5

Citizen or Subject of a Foreign Country

u 3 u 3 Foreign Nation

u 6 u6

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

FORFEITURE/PENALTY

Click here for: Nature of Suit Code Descriptions.

BANKRUPTCY

OTHER STATUTES

u 110 Insurance

PERSONAL INJURY

PERSONAL INJURY u 625 Drug Related Seizure

u 422 Appeal 28 USC 158

u 120 Marine

u 310 Airplane

u 365 Personal Injury -

of Property 21 USC 881 u 423 Withdrawal

u 130 Miller Act

u 315 Airplane Product

Product Liability

u 690 Other

28 USC 157

u 140 Negotiable Instrument

Liability

u 367 Health Care/

u 150 Recovery of Overpayment u 320 Assault, Libel &

& Enforcement of Judgment

Slander

Pharmaceutical Personal Injury

PROPERTY RIGHTS u 820 Copyrights

u 151 Medicare Act

u 330 Federal Employers’

Product Liability

u 830 Patent

u 152 Recovery of Defaulted Student Loans

Liability u 340 Marine

u 368 Asbestos Personal Injury Product

u 835 Patent - Abbreviated New Drug Application

(Excludes Veterans)

u 345 Marine Product

u 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

u 350 Motor Vehicle

Liability

PERSONAL PROPERTY

LABOR

u 370 Other Fraud

u 710 Fair Labor Standards

u 840 Trademark SOCIAL SECURITY
u 861 HIA (1395ff)

u 160 Stockholders’ Suits

u 355 Motor Vehicle

u 371 Truth in Lending

Act

u 862 Black Lung (923)

u 190 Other Contract

Product Liability

u 195 Contract Product Liability u 360 Other Personal

u 380 Other Personal Property Damage

u 720 Labor/Management Relations

u 863 DIWC/DIWW (405(g)) u 864 SSID Title XVI

u 196 Franchise

Injury

u 385 Property Damage

u 740 Railway Labor Act

u 865 RSI (405(g))

u 362 Personal Injury -

Product Liability

u 751 Family and Medical

Medical Malpractice

Leave Act

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS u 790 Other Labor Litigation

FEDERAL TAX SUITS

u 210 Land Condemnation

u 440 Other Civil Rights

Habeas Corpus:

u 791 Employee Retirement

u 870 Taxes (U.S. Plaintiff

u 220 Foreclosure

u 441 Voting

u 463 Alien Detainee

Income Security Act

or Defendant)

u 230 Rent Lease & Ejectment u 442 Employment

u 510 Motions to Vacate

u 871 IRS—Third Party

u 240 Torts to Land u 245 Tort Product Liability

u 443 Housing/ Accommodations

Sentence u 530 General

26 USC 7609

u 290 All Other Real Property u 445 Amer. w/Disabilities - u 535 Death Penalty

IMMIGRATION

Employment

Other:

u 462 Naturalization Application

u 446 Amer. w/Disabilities - u 540 Mandamus & Other u 465 Other Immigration

Other

u 550 Civil Rights

Actions

u 448 Education

u 555 Prison Condition

u 560 Civil Detainee -

Conditions of

Confinement

u 375 False Claims Act u 376 Qui Tam (31 USC
3729(a)) u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and
Corrupt Organizations u 480 Consumer Credit u 490 Cable/Sat TV u 850 Securities/Commodities/
Exchange u 890 Other Statutory Actions u 891 Agricultural Acts u 893 Environmental Matters u 895 Freedom of Information
Act
u 896 Arbitration u 899 Administrative Procedure
Act/Review or Appeal of Agency Decision u 950 Constitutionality of State Statutes

V. ORIGIN (Place an “X” in One Box Only)

u 1 Original

u 2 Removed from

Proceeding

State Court

u 3 Remanded from Appellate Court

u 4 Reinstated or u 5 Transferred from u 6 Multidistrict

Reopened

Another District

Litigation -

(specify)

Transfer

u 8 Multidistrict Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

VI.

CAUSE OF ACTION

42 U.S.C. 1983; First and Fourteenth Amendments to the United States Constitution
Brief description of cause:

Challenge to Kentucky COVID-19 orders violating First Amendment rights to speech, assembly, and free exercise

VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER RULE 23, F.R.Cv.P.

JURY DEMAND: u Yes u No

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE Hon. Justin R. Walker

DOCKET NUMBER 3:20-CV-00264-JRW

DATE
04/17/2020
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
/s/ Mathew D. Staver

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 3:20-cv-00278-DJH-RSE Document 1-1 Filed 04/17/20 Page 2 of 2 PageID #: 55
JS 44 Reverse (Rev. 06/17)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) (b) (c)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

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 Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 1 of 34 PageID #: 106
STATE OF FLORIDA
OFFICE OF THE GOVERNOR EXECUTIVE ORDER NUMBER 20-91
(Essential Services and Activities During COVID-19 Emergency) WHEREAS, on March 1, 2020, I issued Executive Order 20-51 directing the Florida Department of Health to issue a Public Health Emergency; and WHEREAS, on March 1, 2020, the State Surgeon General and State Health Officer declared a Public Health Emergency exists in the State of Florida as a result of COVID-19; and WHEREAS, on March 9, 2020, I issued Executive Order 20-52 declaring a state of emergency for the entire State of Florida as a result of COVID-19; and WHEREAS, on March 16, 2020, President Donald J. Trump and the Centers for Disease Control and Prevention ("CDC") issued the "15 Days to Slow the Spread" guidance advising individuals to adopt far-reaching social distancing measures, such as avoiding gatherings of more than 10 people, and in states with evidence of community spread, recommending restrictions to certain establishments conducive to mass gatherings and congregations; and WHEREAS, on March 29, 2020, the President extended such guidance to be in effect until April 30, 2020; and WHEREAS, on March 31 , 2020, the President updated the guidance, renaming it "30 Days to Slow the Spread", and along with the White House Coronavirus Task Force urged Americans to continue to adhere to the guidelines and expand community mitigation efforts; and
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WHEREAS, the majority of individuals in Florida that have tested positive for COVID-19 have been concentrated in its southeastern counties and other urban cores; and
WHEREAS, positive cases of COVID-19 have continued to rise in other states in close proximity to Florida, resulting in increased risk to counties in northern Florida; and
WHEREAS, many thousands of people fled the New York City region to Florida following New York State issuing a "shelter-in-place" order, thereby jeopardizing the health and safety ofFloridians; and
WHEREAS, on March 23, 2020, I issued Executive Order 20-80, requiring all individuals that fly into Florida from states with substantial community spread to self-isolate in Florida for 14 days or the duration of their trip, whichever is shorter; and
WHEREAS, on March 27, 2020, I issued Executive Order 20-86, requmng all individuals that drive into Florida from states with substantial community spread to selfisolate in Florida for 14 days or the duration of their trip, whichever is shorter; and
WHEREAS, persistent interstate travel continues to pose a risk to the entire state of Florida; and
WHEREAS, on March 24, 2020, I issued Executive Order 20-83, directing the State Surgeon General and State Health Officer to issue a public health advisory urging the public to avoid all social or recreational gatherings of 10 or more people and urging those who can work remotely to do so; and
WHEREAS, it is necessary and appropriate to take action to ensure that the spread of COVID-19 is slowed, and that residents and visitors in Florida remain safe and secure.
NOW, THEREFORE, I, RON DESANTIS, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section (l)(a) of the Florida Constitutiop Chapter
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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 3 of 34 PageID #: 108
252, Florida Statutes, and all other applicable laws, promulgate the following Executive Order totake immediate effect:
Section 1. Safer At Home A. Senior citizens and individuals with a significant underlying medical condition
(such as chronic lung disease, moderate-to-severe asthma, serious heart conditions, immunocompromised status, cancer, diabetes, severe obesity, renal failure and liver disease) shall stay at home and take all measures to limit the risk of exposure to COVID-19.
B. In concert with the efforts of President Trump and the White House Coronavirus Task Force to fight COVID-19, and based on guidance provided by Florida Surgeon General and State Health Officer, Dr. Scott Rivkees, all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.
Section 2. Essential Services A. For purposes of this Order and the conduct it limits, ''essential services" means
and encompasses the list detailed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, v. 2 (March 28, 2020) (attached) and any subsequent lists published.
B. Essential services also include those businesses and activities designated by Executive Order 20-89 and its attachment which consists of a list propounded by Miami-Dade County in multiple orders.
C. Other essential services may be added under this Order with the approval of the State Coordinating Officer, in close coordination with the State Health Officer. The State Coordinating Officer shall maintain an online list of essential services, as specified in this Order along with any approved additions. The online list shall be available on the Division of
3

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 4 of 34 PageID #: 109
Emergency Management's website at www.floridadisaster.org and the Florida Department of Health's website at www.floridahealth.gov.
D. Nothing in this order prohibits individuals from working from home; indeed, this Order encourages individuals to work from home.
E. All businesses or organizations are encouraged to provide delivery, carry-out or curbside service outside of the business or organization, oforders placed online or via telephone, to the greatest extent practicable.
Section 3. Essential Activities A. For purposes of this Order and the conduct it limits, "essential activities" means
and encompasses the following: 1. Attending religious services conducted in churches, synagogues and houses of worship; and 11. Participating in recreational activities (consistent with social distancing guidelines) such as walking, biking, hiking, fishing, hunting, running, or swimming; and
m. Taking care of pets; and 1v. Caring for or otherwise assisting a loved one or friend. B. Other essential activities may be added to this list with the approval of the State Coordinating Officer, in close coordination with the State Health Officer. The State Coordinating Officer shall maintain an online list of essential activities, as specified in this Order along with any approved additions. C. A social gathering m a public space is not an essential activity. Local jurisdictions shall ensure that groups of people greater than ten are not permitted to congregate in any public space.
4

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 5 of 34 PageID #: 110
Section 4. Local Orders in Response to COYID-19 This Order shall supersede any confl icting official action or order issued by local officials in response to COVID- 19 but only to the extent that such action or order allows essential services or essential activities prohibited by this Executi ve Order. Section 5. Previous Executive Orders This Executive Order does not supersede any Executive Order related to COVlD-1 9. Section 6. Effective Date and Expiration Date Thi s Order is effective 12:0 1 am on April 3, 2020. This Order shall expire on April 30, 2020 unless extended by subsequent order. Executive Order 20-68 (bars, restaurants) and Executive Order 20-71 (alcohol sales, restaurants) shall remain in effect through the duration of Executive Order 20-52, including any extensions.
IN TESTIMONY WHEREOF, l have hereunto set my hand and caused the Great Seal of the State of Florida to be affixed, at Tallahassee, this 1st day of April, 2020

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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 6 of 34 PageID #: 111
U.S. Department of Homeland Security Cybersecurity & !nfrastructure Security Agency QI/ice ofthe Director Washington, DC 20528
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March 28, 2020

ADVISORY MEMORANDUM ON IDENTIFICATION OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS DURING COVID-19 RESPONSE

FROM:

C~istopher C. Krebs ,,--,

D1rector

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Cybersecurity and Infrastructure Security Agency (CISA)

As the Nation comes together to slow the spread of COVID-19, on March 16th the President issued updated Coronavirus Guidance for America that highlighted the importance ofthe critical infrastructure workforce.
The Cybersecurity and Infrastructure Security Agency (CISA) executes the Secretary of Homeland Security's authorities to secure critical infrastructure. Consistent with these authorities, CISA has developed, in collaboration with other federal agencies, State and local governments, and the private sector, an "Essential Critical Infrastructure Workforce" advisory list. This list is intended to help State, local, tribal and territorial officials as they work to protect their communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security. Decisions informed by this list should also take into consideration additional public health considerations based on the specific COVID-19-related concerns of particularjurisdictions.
This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard. Additionally, this advisory list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions. Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.
The advisorylist identifies workers who conduct a range ofoperations and services that are typically essential to continued critical infrastructure viability, including staffing operations centers, maintaining and repairing critical infrastructure, operating call centers, working construction, and performing operational functions, among others. It also includes workers who support crucial supply chains and enable functions for critical infrastructure. The industries they support represent, but are not limited to, medical and healthcare, telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, energy, water and wastewater, law enforcement,

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 7 of 34 PageID #: 112
and public works.
State, local, tribal, and territorial governments are responsible for implementing and executing response activities, including decisions about access and reentry, in their communities, while the Federal Government is in a supporting role. Officials should use their own judgment in issuing implementation directives and guidance. Similarly, while adhering to relevant public health guidance, critical infrastructure owners and operators are expected to use their own judgement on issues of the prioritization of business processes and workforce allocation to best ensure continuity of the essential goods and services they support. All decisions should appropriately balance public safety, the health and safety of the workforce, and the continued delivery of essential critical infrastructure services and functions. While this advisory list is meant to help public officials and employers identify essential work functions, it allows for the reality that some workers engaged in activity determined to be essential may be unable to perform those functions because ofhealth-related concerns.
CISA will continue to work with our partners in the critical infrastructure community to update this advisory list if necessary as the Nation's response to COVID-19 evolves.
Should you have questions about this list, please contact CISA at CISA.CAT@cisa.dhs.gov.
Attachment: "Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response Version 2.0"

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 8 of 34 PageID #: 113

Guidance on the Essentlal Crltlcal Infrastructure Workforce: Ensuring Community and Natlonal Reslllence In COVID-:1.9 Response
Version 2.0 (March 28, 2020)
THE IMPORTANCE OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS
Functioning critical infrastructure is imperative during the response to the COVID-19 emergency for both public health and safety as well as community well-being. Certain critical infrastructure industries have a special responsibility in these times to continue operations.
This advisory guidance and accompanying list are intended to support state, local, tribal, territorial and industry partners in identifying the critical infrastructure sectors and the essential workers needed to maintain the services and functions Americans depend on daily and that need to be able to operate resiliently during the COVID-19 pandemic response.
This document gives advisory guidance on defining essential critical infrastructure workers. Promoting the ability of such workers to continue to work during periods of community restriction, access management, social distancing, or closure orders/ directives is crucial to community resilience and continuity of essentia l functions.
CISA will continually solicit and accept feedback on the list and will evolve the list in response to stakeholder feedback. We will also use our various stakeholder engagement mechanisms to work with partners on how they are using this list and share those lessons learned and best practices broadly. Feedback can be sent to CISA.CAT@CISA.DHS.GOV.
CONSIDERATIONS FOR GOVERNMENT AND BUSINESS
This list was developed in consultation with federal agency partners, industry experts, and State and local officials, and is based on several key principles:
1. Response efforts to the COVID-19 pandemic are locally executed, state managed, and federally supported.
2. Everyone should follow guidance from the CDC, as well as State and local government officials, regarding strategies to limit disease spread.
3. Workers should be encouraged to work remotely when possible and focus on core business activities. Inperson, non-mandatory activities should be delayed until the resumption of normal operations.
4. When continuous remote work is not possible, businesses should enlist strategies to reduce the likelihood of spreading the disease. This includes, but is not necessarily limited to, separating staff by off-setting shift hours or days and/or social distancing. These steps can preserve the workforce and allow operations to continue.
5. All organizations should implement their business continuity and pandemic plans or put plans in place if they do not exist. Delaying implementation is not advised and puts at risk the viability of the business and the

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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 9 of 34 PageID #: 114
Essential Critical Infrastructure Workforce
health and safety of the employees. 6 . Reliance on technology and just-in-time supply chains means that certain workers must be able to access
certain sites, facilities, and assets to ensure continuity of functions. 7. Government employees, such as emergency managers, and the business community need to establish and
maintain lines ofcommunication. 8. When government and businesses engage in discussions about essential critical infrastructure workers.they
need to consider the implications of business operations beyond the jurisdiction where the asset or facility is located. Businesses can have sizeable economic and societal impacts as well as supply chain dependencies that are geographicallydistributed. 9. Whenever possible, jurisdictions should align access and movement control policies related to critical infrastructure workers to lower the burden of workers crossing jurisdictional boundaries.
IDENTIFYING ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS
The following list of identified essential critical infrastructure workers is intended to be overly inclusive reflecting the diversity of industries across the United States.
Essential Critical Infrastructure Workers
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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 10 of 34 PageID #: 115
Essential Critical Infrastructure Workforce
HEALTHCARE / PUBLIC HEALTH
• Workers who perform critical clinical research, development, and testing needed for COVID-19 response. • Healthcare providers and Caregivers including physicians, dentists, psychologists, mid-level practitioners, nurses
and assistants, infection control and quality assurance personnel, pharmacists, physical and occupational therapists and assistants, social workers, optometrists, speech pathologists, chiropractors, and diagnostic and therapeutictechnicians and technologists. • Hospital and laboratory personnel (including accounting, administrative, admitting and discharge, engineering, epidemiological, source plasma and blood donation , food service, housekeeping, medical records, information technology and operational technology, nutritionists, sanitarians, respiratory therapists, etc.). • Workers in other medical and biomedical facilities (including Ambulatory Health and Surgical, Blood Banks, Clinics, Community Mental Health, Comprehensive Outpatient rehabilitation, End Stage Renal Disease, Health Departments, Home Health care, Hospices, Hospitals, Long Term Care, Nursing Care Facilities, Organ Pharmacies, Procurement Organizations, Psychiatric Residential, Rural Health Clinics and Federally Qualified Health Centers, and retail facilities specializing in medical good and supplies). • Manufacturer workers for health manufacturing (including biotechnology companies), materials and parts suppliers, logistics and warehouse operators, distributors of medical equipment (including those who test and repa ir), personal protective equipment (PPE), isolation barriers, medical gases, pharmaceuticals (including materials used in radioactive drugs), dietary supplements, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products. • Public health / community health workers, including those who compile, model, analyze and communicate public health information. • Blood and plasma donors and the employees of the organizations that operate and manage related activities. • Workers who manage health plans, billing, and health information, who cannot practically work remotely. • Workers who conduct community-based public health functions, conducting epidemiologic surveillance, compiling, analyzing and communicating public health information, who cannot practically work remotely. • Workers performing information technology and cybersecurity functions at healthcare and public health facilities, who cannot practically work remotely. • Workers performing security, incident management, and emergency operations functions at or on behalf of healthcare entities including healthcare coalitions, who cannot practically work remotely. • Pharmacy employees necessary to maintain uninterrupted prescription filling. • Workers performing mortuary funeral, cremation, burial, cemetery, and related services, including funeral homes, crematoriums, cemetery workers, and coffin makers. • Workers who coordinate with other orga nizations to ensure the proper recovery, handling, identification, tra nsportation, tracking, storage, and disposal of human remains and personal effects; certify cause of death; and facilitate access to mental/behavioral health services to the family members, responders, and survivors of an incident.

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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 11 of 34 PageID #: 116
Essential Critical Infrastructure Workforce
LAW ENFORCEMENT, PUBLIC SAFETY, AND OTHER FIRST RESPONDERS
• Public, private, and voluntary personnel (front line and management) in emergency management, law enforcement, fire and rescue services, emergency medical services, and private security, to include public and private hazardous material responders, air medical service providers (pilots and supporting technicians), corrections, and search and rescue personnel.
• 911 call center employees and Public Safety Answering Points who can't perform their duties remotely. • Fusion Centeremployees. • Workers - including contracted vendors - who maintain, manufacture, or supply equipment and services
supporting law enforcement emergency service and response operations (to include electronic security and life safety security personnel). • Workers supporting the manufacturing of safety equipment and uniforms for law enforcement, public safety personnel, and first responder. • Workers supporting the operation of firearm or ammunition product manufacturers, retailers,importers, distributors, and shooting ranges. • Public agency workers responding to abuse and neglect of children, elders, and dependentadults. • Workers who support weather disaster / natural hazard mitigation and prevention activities. • Security staff to maintain building access control and physical securitymeasures.
FOOD AND AGRICULTURE
• Workers supporting groceries, pharmacies, convenience stores, and other retail (including unattended and vending) that sells human food, animal/pet food and pet supply, and beverage products, including retail customer support service and information technology support staff necessary for online orders, pickup and delivery.
• Restaurant carry-out and quick serve food operations, including dark kitchen and food prep centers, and carryout and delivery food employees.
• Food manufacturer employees and their supplier employees-to include those employed in food ingredient production and processing facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging.
• Farmers, farm workers, and agribusiness support services to include those employed in auction and sales: grain and oilseed handling, processing and distribution; animal food, feed, and ingredient production, packaging, and distribution; manufacturing, packaging, and distribution of veterinary drugs; truck delivery and transport; farm and fishery labor needed to produce our food supplydomestically and for export.
• Fa rmers, farm workers, support service workers, and their supplier employees to include those engaged in producing and harvesting field crops; commodity inspection; fuel ethanol facilities; biodiesel and renewable diesel facilities; storage facilities; and other agricultural inputs.
• Employees and firms supporting the distribution of food, feed, and beverage and ingredients used in these products, including warehouse workers, vendor- managed inventory controllers and blockchain managers.
• Workers supporting the sanitation and pest control of all food manufacturing processes and operations from wholesale to retail.
• Employees in cafeterias used to f eed employees, particularly employee populations sheltered againstCOVID-19. • Workers in animal diagnostic and food testing laboratories in private industries and in institutions of higher
education.

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 12 of 34 PageID #: 117
Essential Critical Infrastructure Workforce

• Government, private, and non-governmental organizations' workers essential for food assistance programs (including school lunch programs) and government payments.
• Employees of companies engaged in the production, storage, transport, and distribution of chemicals, medicines, vaccines, and other substances used by the food and agriculture industry, including seeds, pesticides, herbicides, fertilizers, minerals, enrichments, and other agricultural production aids.
• Animal agriculture workers to include those employed in veterinary health (including those involved in supporting emergency veterinary or livestock services); raising of animals for food; animal production operations; livestock markets; slaughter and packing plants, manufacturers, renderers, and associated regulatory and government workforce.
• Transportation supporting animal agricultural industries, including movement of animal medical and reproductive supplies and materials, animal vaccines, animal drugs, feed ingredients, feed , and bedding, live animals, animal by-products, and deceased animals for disposal.
• Workers who support sawmills and the manufacture and distribution of fiber and forest products, including, but not limited to timber, paper, and other wood andfiberproducts.
• Employees engaged in the manufacture and maintenance of equipment and other infrastructure necessary for agricultural production anddistribution.
ENERGY
• Workers supporting the energy sector, regardless of the energy source (including but not limited to nuclear, fossil, hydroelectric, or renewable), segment of the system, or infrastructure the worker is involved in, or who are needed to monitor, operate, engineer, and maintain the reliability, safety, environmental health, and physical and cyber security of the energysystem.
• Energy/commodity trading/scheduling/marketing functions, who can't perform their dutiesremotely.
• IT and OT technology for essential energy sector operations including support workers, customer service operations; energy management systems, control systems, and Supervisory Control and Data Acquisition SCADA systems, and energy sector entity data centers; cybersecurity engineers; and cybersecurity risk management.
• Workers supporting the energy sector through renewable energy infrastructure (including, but not limited to wind, solar, biomass, hydrogen, ocean, geothermal, and/or hydroelectric), including those supporting construction, manufacturing, transportation, permitting, operation/ maintenance, monitoring, and logistics.
• Workers and security staff involved in nuclear re-fueling operations.
• Providing services related to energy sector fuels (including, but not limited, petroleum (crude oil), natural gas, propane, natural gas liquids, other liquid fuels, nuclear, and coal), supporting the mining, processing, manufacturing, construction, logistics, transportation, permitting, operation/ maintenance, security, waste disposal and storage, and monitoring of support for resources.
• Environmental remediation/ monitoring, limited to immediate critical needs technicians.
• Manufacturing and distribution of equipment, supplies, and parts necessary to maintain production, maintenance, restoration, and service at energy sector facilities (across all energy sector segments).
Electricity industry:
• Workers who maintain, ensure, or restore, or are involved in the development, transportation, fuel procurement, expansion, or operation of the generation, transmission, and distribution of electric power, including call centers, utility workers, engineers, retail electricity, constraint maintenance, and fleet maintenance technicianswho cannot perform their duties remotely.
• Workers at coal mines, production facilities, and those involved in manufacturing, transportation, permitting, operation/ maintenance and monitoring at coal sites which is critical to ensuring the reliability of the electrical system.

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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 13 of 34 PageID #: 118
Essential Critical Infrastructure Workforce

• Workers who produce, process, ship and handle coal used for power generation and manufacturing.
• Workers needed for safe and secure operations at nuclear generation to include but not limited to, the broader nuclear supply chain, parts to maintain nuclear equipment, fuel manufacturers and fuel components used in the manufacturing of fuel.
• Workers at renewable energy infrastructure (including, but not limited to wind, solar, biomass, hydrogen, geothermal, and/or hydroelectric), including those supporting construction, manufacturing, transportation, permitting, operation/maintenance, monitoring, and logistics.
• Workers at generation, transmission, and electric black startfacilities.
• Workers at Reliability Coordinator, Balancing Authorities, and primary and backup Control Centers, including but not limited to independent system operators, regional transmission organizations, and local distribution control centers.
• Mutual assistance personnel which may include workers from outside of the state or local jurisdiction.
• Vegetation management and traffic control for supporting those crews.
• Environmental remediation/monitoring workers limited to immediate critical needstechnicians. • Instrumentation, protection, and control technicians.
• Essential support personnel for electricityoperations.
• Generator set support workers such as diesel engineers used in powergeneration including those providing fuel.

Petroleum industry:
• Workers for onshore and offshore petroleum drilling operations; platform and drilling construction and maintenance; transportation (including helicopter operations), maritime transportation, supply, and dredging operations; maritime navigation; well stimulation, intervention, monitoring, automation and control, extraction, production; processing; waste disposal, and maintenance, construction, and operations.
• Workers for crude oil, petroleum and petroleum product storage and transportation, including pipeline, marine transport, terminals, rail transport, storage facilities and racks and roadtransport for use as enduse fuels such as gasoline, diesel fuel, jet fuel, and heating fuels or feedstocks for chemical manufacturing.

• Petroleum and petroleum product security operations center employees and workers who support maintenance andemergency response services.
• Petroleum and petroleum product operations control rooms/centers and refinery facilities. • Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them. • Supporting new and existing construction projects, including, but not limited to, pipeline construction.

Natural Gas, Natural Gas Liquids (NGL), Propane, and other liquid fuels
• Workers who support onshore and offshore drilling operations, platform and drilling construction and maintenance; transportation (including helicopter operations); maritime transportation, supply, and dredging operations; maritime navigation; natural gas and natural gas liquid production, processing, extraction, storage and transportation; well intervention, monitoring, automation and control; waste disposal, and maintenance, construction, and operations.
• Transmission and distribution pipeline workers, including compressor stations and any other required, operations maintenance, construction, and support for natural gas, natural gas liquid, propane, and other liquid fuels.
• Natural gas, propane, natural gas liquids, and other liquid fuel processing plants, including construction, maintenance, ar support operations.

• Natural gas processing plants workers, and those that deal with natural gasliquids.

• Workers who staff natural gas, propane, natural gas liquids, and other liquid fuel security operations centers,

operations dispatch and control rooms/centers, and emergency response and customer emergencies (including

leak calls)operations.

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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 14 of 34 PageID #: 119
Essential Critical Infrastructure Workforce
chemical manufacturing, or use in electricitygeneration. • Dispatch and control rooms and emergency response and customer emergencies, including propane
leak calls. • Propane gas service maintenance and restoration, including call centers. • Propane, natural gas liquids, and other liquid fuel distribution centers. • Propane gas storage, transmission, and distribution centers. • Supporting new and existing construction projects, including, but not limited to, pipeline construction. • Ethanol and biofuel production, refining, and distribution. • Workers in fuel sectors (including, but not limited to nuclear, coal, and gas types and liquid fuels)
supporting the mining, manufacturing, logistics, transportation, permitting, operation/maintenance, and monitoring of support for resources.
WATER AND WASTEWATER
Employees needed to operate and maintain drinking water and wastewater/drainage infrastructure, including: • Operational staff at waterauthorities. • Operational staff at community watersystems. • Operational staff at wastewater treatment facilities. • Workers repairing water and wastewater conveyances and performing required sampling or monitoring, including field staff. • Operational staff for water distribution and testing. • Operational staff at wastewater collection facilities. • Operational staff and technical support for SCADA Control systems. • Chemical and equipment suppliers to water and wastewater systems and personnel protection. • Workers who maintain digital systems infrastructure supporting water and wastewater operations.
TRANSPORTATION AND LOGISTICS
• Employees supporting or enabling transportation functions, including truck drivers, bus drivers, dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, Department of Motor Vehicle (OMV) employees, towing/recovery services, roadside assistance workers, intermodal transportation personnel, and workers who maintain and inspect infrastructure (including those that require cross-jurisdiction travel).
• Workers supporting the distribution of food, pharmaceuticals (including materials used in radioactive drugs) and other medical materials, fuels, chemicals needed for water or water treatment and energy Maintenance and operation of essential highway infrastructure, including roads, bridges, and tunnels (e.g., traffic operations centers and moveable bridge operators).
• Employees of firms providing services, supplies, and equipment that enable warehouse and operations, including cooling, storing, packaging, and distributing products for wholesale or retail sale or use. Includes cold- and frozen-chain logistics for food and critical biologic products.
• Mass transit workers and providing critical transit services and/or performing critical or routine maintenance to mass transit infrastructure or equipment.
• Employees supporting personal and commercial transportation services - including taxis, delivery services, vehicle rental services, bicycle maintenance and car-sharing services, and transportation network providers.
• Workers responsible for operating and dispatching passenger, commuter and freight trains and maintaining rail infrastructure and equipment.
• Maritime transportation workers, including dredgers, port workers, mariners, ship crewmembers, ship pilots and tug boat operators, equipment operators (to include maintenance and repair, and maritime-specific medical

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 15 of 34 PageID #: 120
Essential Critical Infrastructure Workforce
providers), ship supply, chandler, and repair companies.
• Workers including truck drivers, railroad employees and contractors, maintenance crew, and cleaners supporting transportation of chemicals, hazardous, medical, and waste materials to support critical infrastructure, capabilities, functions, and services, including specialized carriers, crane and rigging industryworkers.
• Bus drivers and workers who provide or support intercity, commuter and charter bus service in support of other essential services or functions.
• Automotive repair, maintenance, and transportation equipment manufacturing and distribution facilities (including those who repair and maintain electric vehicle charging stations).
• Transportation safety inspectors, including hazardous material inspectors and accident investigator inspectors. • Manufacturers and distributors (to include service centers and related operations) of packaging materials,
pallets, crates, containers, and other supplies needed to support manufacturing, packaging staging and distribution operations.
• Postal, parcel, courier, last-mile delivery, and shipping and related workers, to include privatecompanies. • Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, bicycles, and the
equipmentand infrastructure that enables operations that encompass movement of cargo and passengers.
• Air transportation employees, includingairtraffic controllers and maintenance personnel, ramp workers, aviation and aerospace safety, security, and operations personnel and accident investigations.
• Workers who support the operation, distribution, maintenance, and sanitation, of air transportation for cargo and passengers, including flight crews, maintenance, airport operations, those responsible for cleaning and disinfection, and other on- and off- airport facilities workers.
• Workers supporting transportation via inland waterways such as barge crew, dredging, river port workers for essential goods.
• Workers critical to rental and leasing of vehicles and equipment that facilitate continuity of operations for essential workforces and other essential travel.
• Warehouse operators, including vendors and support personnel critical for business continuity (including HVAC & electrical engineers; security personnel; and janitorial staff) and customer service for essential functions.
PUBLIC WORKS AND INFRASTRUCTURE SUPPORT SERVICES
• Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, t raffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues.
• Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC Technicians, landscapers, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings such as hospitals, senior living facilities, any temporary construction required to support COVID-19 response.
• Workers who support, such as road and line clearing, to ensure the availability of and access to needed facilities , transportation, energy and communications.
• Support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste, including landfilloperations.
• Workers who support the operation, inspection, and maintenance of essential dams, locks and levees. • Workers who support the inspection and maintenance of aids to navigation, and other government provided
services that ensure continued maritime commerce.

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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 16 of 34 PageID #: 121 Essential Critical Infrastructure Workforce

COMMUNICATIONS AND INFORMATION TECHNOLOGY
Communications:
• Maintenance of communications infrastructure- including privately owned and maintained communication systems- supported by technicians, operators, call -centers, wireline and wireless providers, cable service providers, satellite operations, Internet Exchange Points, Points of Presence, Network Access Points, back haul and front haul facilities, and manufacturers and distributors of communications equipment.
• Government and private sector employees (including government contractors) with work related to undersea cable infrastructure and support facilities, including cable landing sites, beach manhole vaults and covers, submarine cable depots and submarine cable shipfacilities.
• Government and private sector employees (including government contractors) supporting Departmentof Defense internet and communications facilities.
• Workers who support radio, television, and media service, including, but not limited to front-line news reporters, studio, and technicians for newsgathering, and reporting, and publishing news.
• Network Operations staff, engineers and/or technicians to include IT managers and staff, HVAC & electrical engineers, security personnel, software and hardware engineers, and database administrators that manage the network or operate facilities.
• Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables, buried conduit, small cells, other wireless facilities, and other communications sector-related infrastructure. This includes construction of new facilities and deployment of new technology as these are required to address congestion or customer usage due to unprecedented use of remote services.
• Installation, maintenance and repair technicians that establish, support or repair service as needed.
• Central office personnel to maintain and operate central office, data centers, and other network office facilities, critical support personnel assisting front line employees.
• Customer service and support staff, including managed and professional services as well as remote providers of support to transitioning employees to set up and maintain home offices, who interface with customers to manage or support service environments and security issues, including payroll, billing, fraud, logistics, and troubleshooting.
• Workers providing electronic security, fire, monitoring and life safety services, and to ensure physical security, cleanliness and safety of facilities and personnel, including temporary licensing waivers for security personnel to work in other States ofMunicipalities.
• Dispatchers involved with service repair and restoration.
• Retail customer service personnel at critical service center locations for onboarding customers, distributing and repairing equipment and addressing customer issues in order to support individuals' remote emergency communications needs, supply chain and logistics personnel to ensure goods and products are on-boarded to provision these front-line employees.
• External Affairs personnel to assist in coordinating with local, state and federal officials to address communications needs supporting COVID-19 response, public safety, and nationalsecurity.
Information Technology:
• Workers who support command centers, including, but not limited to Network Operations Command Centers, Broadcast Operations Control Centers and Security Operations Command Centers.
• Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers and purchasers, data transfer solutions engineers, software and hardware engineers, and database administrators, for all industries (including financial services).

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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 17 of 34 PageID #: 122
Essential Critical Infrastructure Workforce

• Workers who support client service centers, field engineers, and other technicians and workers supporting critical infrastructure, as well as manufacturers and supply chain vendors that provide hardware and software, support services, research and development, and information technology equipment (to include microelectronics and semiconductors), and HVAC and electrical equipment for critical infrastructure, and test labs and certification agencies that qualify such equipment(to include microelectronics, optoelectronics, and semiconductors) for critical infrastructure, including data centers.
• Workers needed to preempt and respond to cyber incidents involving critical infrastructure, including medical facilities, SLTT governments and federal facilities, energy and utilities, and banks and financial institutions, securities/other exchanges, other entities that support the functioning of capital markets, public works, critical manufacturing, food & agricultural production, transportation, and other critical infrastructure categories and personnel, in addition to all cyber defense workers (who can't perform their dutiesremotely).
• Suppliers, designers, transporters and other workers supporting the manufacture, distribution and provision and construction of essential global, national and local infrastructure for computing services (including cloud computing services and telework capabilities), business infrastructure, financial transactions/services, webbased services, and critical manufacturing.
• Workers supporting communications systems and information technology- and work from home solutions- used by law enforcement, public safety, medical, energy, public works, critical manufacturing, food & agricultural production, financial services, education, and other critical industries and businesses.
• Employees required in person to support Software as a Service businesses that enable remote working, performance of business operations, distance learning, media services, and digital health offerings, or required for technical support crucial for business continuity and connectivity.
OTHER COMMUNITY- OR GOVERNMENT-BASED OPERATIONS AND ESSENTIAL FUNCTIONS
• Workers to ensure continuity of building functions, including but not limited to security and environmental controls (e.g., HVAC), the manufacturing and distribution of the products required for these functions, and the permits and inspections for construction supporting essential infrastructure.
• Elections personnel to include both public and private sector elections support.
• Workers supporting the operations of the judicial system.
• Federal, State, and Local, Tribal. and Territorial employees who support Mission Essential Functions and communications networks.
• Trade Officials (FTA negotiators; international data flow administrators).
• Employees necessary to maintain news and media operations across various media.
• Employees supporting Census 2020.
• Weat herforecasters.
• Clergy for essential support.
• Workers who maintain digital systems infrastructure supporting other critical government operations.
• Workers who support necessary credentialing, vetting and licensing operations for critical infrastructure workers.
• Customs and immigration workers who are critical to facilitating trade in support of the national emergency response supply chain.
• Educators supporting public and private K-12 schools, colleges, and universities for purposes of facilitating distance learning or performing other essential functions.
• Staff at government offices who perform title search, notary, and recording services in support of mortgage and real estate services and transactions.

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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 18 of 34 PageID #: 123
Essential Critical Infrastructure Workforce
• Residential and commercial real estate services, including settlementservices. • Workers supporting essential maintenance, manufacturing, design, operation, inspection, security, and
construction for essential products, services, and supply chain and COVID 19 reliefefforts.
CRITICAL MANUFACTURING
• Workers necessary for the manufacturing of metals (including steel and aluminum), industrial minerals, semiconductors, materials and products needed for medical supply chains, and for supply chains associated with transportation, energy, communications, information technology, food and agriculture, chemical manufacturing, nuclear facilities, wood products, commodities used as fuel for power generation facilities, the operation of dams, water and wastewater treatment, processing and reprocessing of solid waste, emergency services, and the defense industrial base. Additionally, workers needed to maintain the continuity of these manufacturing functions and associated supply chains, and workers necessary to maintain a manufacturing operation in warm standby.
• Workers necessary for the manufacturing of materials and products needed to manufacture medicalequipment and personal protective equipment(PPE).
• Workers necessary for mining and production of critical minerals, materials and associated essential supply chains, and workers engaged in the manufacture and maintenance of equipment and other infrastructure necessary for mining production and distribution.
• Workers who produce or manufacture parts or equipment that supports continued operations for any essential services and increase in remote workforce (including computing and communication devices, semiconductors, and equipment such as security tools for Security Operations Centers (SOCs) ordatacenters).
HAZARDOUS MATERIALS
• Workers who manage hazardous materials associated with any other essential activity, including but not limited to healthcare waste (medical, pharmaceuticals, medical material production), testing operations (laboratories processing test kits), and energy (nuclear facilities) Workers at nuclear facilities, workers managing medical waste, workers managing waste from pharmaceuticals and medical material production, and workers at laboratories processing tests Workers who support hazardous materials response and cleanup.
• Workers who maintain digital systems infrastructure supporting hazardous materials management operations.
FINANCIAL SERVICES
• Workers who are needed to provide, process and maintain systems for processing, verification, and recording of financial transactions and services, including payment, clearing, and settlement; wholesale funding; insurance services; consumer and commercial lending; and capital markets activities).
• Workers who are needed to maintain orderly market operations to ensure the continuity of financial transactions and services.
• Workers who are needed to provide business, commercial, and consumer access to bank and non-bank financial services and lending services, including ATMs, lending and money transmission, and to move currency, checks, securities, and payments (e.g., armored cash carriers).
• Workers who support financial operations and those staffing call centers, such as those staffing data and security operations centers, managing physical security, or providing accounting services.
• Workers supporting production and distribution of debit and credit cards. • Workers providing electronic point of sale support personnel for essential businesses and workers.

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 19 of 34 PageID #: 124
Essential Critical Infrastructure Workforce

CHEMICAL
• Workers supporting the chemical and industrial gas supply chains, including workers at chemical manufacturing plants, workers in laboratories, workers at distribution facilities, workers who transport basic raw chemical materials to the producers of industrial and consumer goods, including hand sanitizers, food and food additives, pharmaceuticaIs, paintings and coatings, textiles, buildingmaterials, plumbing. electrical, and paper products.
• Workers supporting the safe transportation of chemicals, including those supporting tank truck cleaning facilities and workers who manufacture packaging items.
• Workers supporting the production of protective cleaning and medical solutions, personal protective equipment, disinfectants, fragrances, and packaging that prevents the contamination of food, water, medicine, among others essential.
• Workers supporting the operation and maintenance of facilities (particularly those with high risk chemicals and/ or sites that cannot be shut down) whose work cannot be done remotely and requires the presence of highly trained personnel to ensure safe operations, including plant contract workers who provide inspections.
• Workers who support the production and transportation of chlorine and alkali manufacturing, single-use plastics, and packaging that prevents the contamination or supports the continued manufacture of food, water, medicine, and other essential products, including glass container manufacturing.
DEFENSE INDUSTRIAL BASE
• Workers who support the essential services required to meet national security commitments to the federal government and U.S. Military. These individuals include, but are not limited to, space and aerospace; mechanical and software engineers (various disciplines), manufacturing/production workers; IT support; security staff; security personnel; intelligence support, aircraft and weapon system mechanics and maintainers; and sanitary workers who maintain the hygienic viability of necessaryfacilities.
• Personnel working for companies, and their subcontractors, who perform under contract or sub-contract to the Department of Defense, as well as personnel at government-owned/contractor- operated and governmentowned/government-operated facilities, and who provide materials and services to the Department of Defense, including support for weapon systems, software systems and cybersecurity, defense and intelligence communications and surveillance, space systems and other activities in support of our military, intelligence and space forces.
COMMERCIAL FACILITIES
• Workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paintjcoatings, and employees who provide services that enable repair materials and equipment for essential functions.
• Workers supporting ecommerce through distribution, warehouse, call center facilities, and other essential operational support functions.
• Workers in hardware and building materials stores, consumer electronics, technology and appliances retail, and related merchant wholesalers and distributors - with reduced staff to ensure continued operations.
• Workers distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment.
RESIDENTIAL/ SHELTER FACILITIES AND SERVICES
• Workers in dependent care services, in support of workers in other essential products and services.

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Im Linkedin.com/company/cybersecurityand-infrastructu re-security-agency
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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 20 of 34 PageID #: 125
Essential Critical Infrastructure Workforce
• Workers who support food, shelter, and social services, and other necessities of life for needy groups and individuals, including in-need populations and COVID-19 responders (including travelling medical staff).
• Workers in animal shelters. • Workers responsible for the leasing of residential properties to provide individuals and families with ready
access to available housing. • Workers responsible for handling property management, maintenance, and related service calls who can
coordinate the response to emergency "at-home" situations requiring immediate attention, as well as facilitate the reception of deliveries, mail, and other necessaryservices. • Workers performing housing construction related activities to ensure additional units can be made available to combat the nation's existing housing supplyshortage. • Workers performing services in support of the elderly and disabled populations who coordinate a variety of services, including health care appointments and activities of dailyliving. • Workers supporting the construction of housing, including those supporting government functions related to the building and development process, such as inspections, permitting and plan review services that can be modified to protect the public health, but fundamentally should continue and serve the construction of housing (e.g., allow qualified private third-party inspections in case of governmentshutdown).
HYGIENE PRODUCTS AND SERVICES
• Workers who produce hygiene products. • Workers in laundromats, laundry services, and drycleaners. • Workers providing personal and household goods repair and maintenance. • Workers providing disinfection services, for all essential facilities and modes of transportation, and supporting
the sanitation of all food manufacturing processes and operations from wholesale toretail. • Workers necessary for the installation, maintenance, distribution, and manufacturing of water andspace
heating equipment and its components. • Support required for continuity of services, including commercial disinfectant services, janitorial/cleaning
personnel, and support personnel functions that need freedom of movement to access facilities in support of front-line employees.

CONNECT WITH US www.clsa.gov
For more Information, emall CISA.CAT@clsa.dhs.gov

HD Li nkedin.com/company/cybersecuritya nd -i nfrastructu re-security-agency
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Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 21 of 34 PageID #: 126
STATE OF FLORIDA
OFFICE OF THE GOVERNOR EXECUTIVE ORDER NUMBER 20-89
(Emergency Management - COYID-19 - Miami-Dade County, Broward County, Palm Beach County, Monroe County Public Access Restrictions)
WHEREAS. on March I, 2020. I issued Executive Order 20-51 directing the Florida Department of Health to issue a Public Jlealth Emergency; and
WHEREAS, on March 1, 2020, the State Surgeon General and State Health Officer declared a Public Health Emergency exists in the State of Florida as a result of COYTD-19: and
WHEREAS, on March 9, 2020, I issued Executive Order 20-52 declaring a state of emergency for the entire State of Florida as a result of COVID- 19; and
WHEREAS, on March I6, 2020, President Donald J. Trump and the Centers for Disease Comrol and Prevention (''CDC') issued the "15 Days to Slow the Spread" guidance advising individuals to adopt far-reaching social distancing measures, such as avoiding gatherings of more than IO people, and in states with evidence of community spread, recommending restrictions to certain establishments conducive to mass gatherings and congregations; and
WHEREAS, on March 29, 2020. the President extended such guidance to be in effect until April 30, 2020: and
WHEREAS, Miami-Dade County, Broward County, and Palm Beach County have already implemented orders restricting certain public access to non-essential retail and commercial establishments; and
WHEREAS, over sixty (60) percent of Florida's identified COYID-19 cases are in these neighboring southern counties, which make up a large percentage of Florida's population; and

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 22 of 34 PageID #: 127
WHEREAS, my Administration has consulted with the authorities from Miami-Dade County, Broward County, Palm Beach County and Monroe County who seek to harmonize restricted public access mandates in order to establish unifom1ity and consistency throughout their counties of close proximity; and
\VHEREAS, it is necessary and appropriate to take action to ensure that COVID-19 remains controlled, and that residents and visitors in Florida remain safe and secure.
NOW, THEREFORE, I, RON DESANTJS, as Governor of Florida. by virtue of the authority vested in me by Article IV, Section (I )(a) of the Florida Constitution, Chapter 252. Florida Statutes. and all other applicable laws, promulgate the following Executive Order to take immediate effect :
Section I. Jhereby order Miami-Dade County, Broward County, Palm Beach County and Monroe County to restrict public access to businesses and facilities deemed non-essential pursuant to the guidelines established by Miami-Dade County pursuant to its March 19. 2020 Emergency Order 07-20. and as modified by subsequent amendments and orders prior to the date of this order.
Section 2. At their discretion, such county administrators may determine additional "essential" retail and commercial establishments--or other institutions providing essential services-that shall not be subject to complete closure. No county or local authority may restrict or prohibit any "essential'" service from performing a function allowed under this order.
Section 3. Essential service establishments not subject to closure shall continue to determine, adopt and maintain reasonable measures to ensure sanitation and cleanliness of premises and items that may come into contact with employees and the public, and such establishments shall take reasonable action to ensure that people adhere to the CDC's social distancing guidelines.

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 23 of 34 PageID #: 128

Section 4. The above-named counties shall not institute curfews pertaining to transit to or from the essential service establishments.
Section 5. This order shall remain in effect LLntil April 15, 2020 unless renewed or otherwise modified by subsequent order.

TN TESTIMONY WHEREOF, I have hereunto

set my hand and caused the Great Seal of the

State of Florida to be affixed at Tallahassee. this

30th day

h, 202

ATTEST:

r •

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 24 of 34 PageID #: 129
COUNTY
MIAMI-DADE COUNTY EMERGENCY ORDER 07-20 WHEREAS, Section 252.38(3)(a), Florida Statutes, gives political subdivisions the authority to declare and enact a State of Local Emergency for a period of up to seven days, thereby waiving the procedures and formalities otherwise required of the political subdivision by law; and WHEREAS, on March I, 2020, the Governor of Florida issued Executive Order Number 20-51, directing the State Health Officer and Surgeon General to declare a Public Health Emergency due to the discovery of COVID-19/novel Coronavirus in Florida; and WHEREAS, on March 9, 2020, the Governor of Florida issued Executive Order Number 20-52, declaring a State of Emergency for the state of Florida related to COVID-19/novel Coronavirus; and WHEREAS, on March 12, 2020, the County Mayor declared a State of Emergency for all of Miami-Dade County; and WHEREAS, COVID-19/novel Coronavirus poses a health risk to Miami-Dade County residents, particularly elderly residents and those who are immunosuppressed or otherwise have high-risk medical conditions; and WHEREAS, minimization of contact is necessary to avoid risk of COVID-19 infection for the residents of the County; and WHEREAS, the Centers for Disease Control (CDC) has issued guidance entitled " 15 Days to Slow the Spread," encouraging social distancing and maintaining a 6 foot separation between residents to slow the spread of infection and that events with more than ten attendees either be cancelled or held vinually; and WHEREAS, the CDC guidelines are based upon the amount of community spread within a community and become more stringent where there is minimal to moderate or substantial community spread; and WHEREAS, section 88-7(2)(t) of the Code authorizes the County Mayor to order the closure of any commercial establishment; and
Page 1 of 5

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 25 of 34 PageID #: 130

Miami-Dade County Declaration ofLocal Stale of Emergency

WHEREAS, sections 8B-7(2)(e) and (o) of the Code authorize the County Mayor to limit the movement of persons inside Miami-Dade County in order to safeguard life and health,

T HEREFORE, as County Mayor of Miami-Dade County, I hereby order:

J. All non-essential retail and commercial establishments are ordered closed.

2. Essential retail and co mmercial businesses, which may remain open, are:

a. Healthcare providers, including, but not limited to, hospitals, doctors' and dentists' offices, urgent care centers, clinics, rehabilitation facilities, physical therapists, mental health professionals, psychiatrists, therapists, and pharmacies:

b. Grocery stores, fanners' markets, farm and produce stands, supermarkets, food banks, convenience stores, and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pct supply, fresh meats, fish, and poultry, and any other household consumer products (such as cleaning and personal care products). This authorization includes stores that sell groceries and also sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operations of residences;

c. Food cultivation, including fanning, livestock, and fishing;

d . Businesses that provide food, shelter, social services, and other necessities of life for economically disadvantaged or otherwise needy individuals;

e. Newspapers, television, radio, and other media services;

f.

Gas stations and auto-supply, auto-repair, and related facilities;

g. Banks and related financial institutions ;

h. Hardware stores;

i.

Contractors and other tradesmen, appliance repair personnel, exterminators, and

other service providers who provide services that are necessary 10 maintaining the safety,

sanitation, and essential operation of residences and other structures;

J.

Businesses providing mailing and shipping services, including post office boxes;

k. Private colleges, trade schools, and technical colleges, but only as needed to facilitate online or distance ]earning;

I.

Laundromats, dry cleaners, and laundry service providers;

m. Restaurants and other facilities that prepare and serve food, but subject to the limitations and requirements of Emergency Order 3-20. Schools and other entities that typica1ly

Page2of5

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 26 of 34 PageID #: 131

Miami-Dade County Declaration of Local State of Emergency

provide free food services to students or members of the public may continue to do so on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis only. Schools and other entities that provide food services under this exemption shall not pemut the food to be eaten at the site where it is provided, or at any other gathering site;

n. Businesses that supply office products needed for people to work from home;

o. Businesses that supply other essential businesses with the support or supplies necessary to operate, and which do not interact with the general public;

p. Businesses that ship or deliver groceries, food, goods, or services directly to residences;

q. Airlines, taxis, and other private transportation providers providing transportation services via automobile, truck, bus, or train;

r.

Home-based care for seniors, adults, or children;

s. Assisted living facilities, nursing homes, and adult day care centers, and senior residential facilities;

t.

Professional services, such as legal or accounting services, when necessary to

assist in compliance with legally mandated activities;

u. services;

Landscape and pool care businesses, including residential landscape and pool care

v. Childcare facilities providing services that enable employees exempted in this Order to work as permitted. To the extent possible. childcare facilities should operate under the following mandatory conditions:
1. Childcare must be carried out in stable groups of IO or fewer (inclusive of childcare providers for the group).
2. Children and child care providers shall not change from one group to anotl1er. 3. lfmorc than one group of children is cared for at one facility, each group shall
be in a separate room. Groups shall not mix or interact with each other.

w. Businesses operating at any airport, seaport, or other government facility, including parks and government offices;

x.
y.
handlers;

Pet supply stores; Logistics providers, including warehouses, trucking, consolidators, fumigators, and

z. Telecommunications providers, including sales ofcomputer or telecommunications devices and the provision of home telecommunications;

Page 3 of 5

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 27 of 34 PageID #: 132

Miami-Dade County Declaration of Local State of Emergency

aa Provision ofpropane or natural gas;

bb. Office space and administrative support necessary IO perform any of the above-
listed activities;

cc. Open construction sites, irrespective of the type of building;

dd. Architectural, engineering, or land surveying services;

ec. Factories, manufacturing facilities, bottling plants, or other industrial uses;

ff. Waste management services, including collection and disposal of waste; and

gg. Any business that is interacting with customers solely through electronic or telephonic means, and delivering products via mailing, shipping, or delivery services

3. This order does not affect or limit the operations ofMiami-Dade County, any public utility, any municipality, the Miami-Dade County School District, or any State or Federal office or facility, except that such entities shall abide by the restrictions ofany County, Municipal, State or Federal emergency order, as applicable.

4. This order does not limit the number ofpersons who may be physically present performing services at any location where an essential business is being conducted except as expressly set forth herein or otherwise governed by any State or Federal order or regulation. Employers and employees are urged, but are not required, to practice social distancing, such as keeping six feet between persons and limiting group size to less than ten people.

5.

This order does not limit the number of persons who may be physically present at any

religious service. Persons attending religious services are urged, but are not required, to practice

social distancing. such as keeping six feet between persons and limiting group size to less than ten

people.

6. The County Mayor may amend the provisions ofparagraph 2, 3, and 4 by written notice to the County Clerk.

7. The provisions ofthis order shall serve as minimum standards. Municipalities may impose
more stringent standards within their jurisdictions.

8. This order shall expire upon the expiration of the existing Miami-Dade County State of Local Emergency, except that if such State of Local Emergency is extended, this order shall also be deemed to extend for the duration of such extension. This order may be cancelled earlier by action of the County Mayor.

9. This order shall be effective as of 9:00 p.m., March 19, 2020.

Page 4 of5

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 28 of 34 PageID #: 133

Miami-Dade County Declaration of Local Stale of Emergency
9. This order shall be effective as of 9:00 p.m., March 19, 2020. 10. This order shall be provided to all appropriate media consistent with the requirements of section 8B-7(2)(n) ofthe Code of Miami-Dade County. Enacted:
Signed:_ 2~=~~~f~}JJJ~ii5~~-::-::-:kt- - - - - - - - - - - -- -- - -
Tim d , 3 D

Cancelled: Signed:_ _ _ _ _ __ __ _ __ _ __ __ _ _ _ _ _ _ _ _ __ __
COUNTY MAYOR

Date: - - -

Time: - -

Witness:- - - - - -- - - - - -

Page 5 of 5

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 29 of 34 PageID #: 134
AMENDMENT NO. 1 TO MIAMI-DADE COUNTY EMERGENCY ORDER 07-20 WHEREAS, on March 19, 2020, the County Mayor issued Emergency Order 07-20; and WHEREAS, Emergency Order 07-20 directed the closure of all non-essential retail and commercial establishments and included a list of essential businesses that may still operate; and WHEREAS, Emergency Order 07-20 provided for amendment by filing written notice with the clerk; and WHEREAS, hotels, motels, other commerciaJ lodging establishments, and temporary vacation rentals provide essential business services during emergencies; and WHEREAS, marinas and boat launches, docking, fueling, marine supply and other marina services provide essential business services during emergencies, including access to living space, repair services, and other vital needs; and WHEREAS, additional retail and commercial establishments listed below provide essential business services during emergencies, THEREFORE, as County Mayor of Miami-Dade County, I hereby order: I. Paragraph 2 of Emergency Order 07-20 is hereby amended and restated to clarify that additional following essential businesses may remain open:
2. Essential retail and commercial businesses, which may remain open, are:
• •
f. Gas stations>>: new and used automobile dealerships;<< and auto-supply, auto-repair, and related facilities>>. provided however that such businesses should ensure that customers practice the social distancing as advised by the CDC<<;
•• •
k. Private colleges, trade schools, and technical colleges, but only as needed to facilitate online or distance learning >>and university, college, or technical college residence halls. to the extent needed to accommodate students who cannot return to their homes<<;
Pagel of2

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 30 of 34 PageID #: 135

Miami-Dade County Declaration of Local State of Emergency

..

•

ff. Waste management services, including collection and disposal of waste; [faoo])

gg. Any business that is interacting with customers solely through electronic or telephonic means, and delivering products via mailing, shipping, or delivery services>>~<<

>>hh. Private and municipal marinas and boat launches. docking. fueling, marine supply and other marina services:

ii. Hotels, motels, other commercial lodging establishments and temporary vacation rentals. Notwithstanding the foregoing, restaurants. bars, and fitness center restrictions within these establishments remain as slated in Emergency Order 03-20;

jj. Veterinarians and pet boarding facilities; and

kk. Mortuaries, funeral homes, and cemeteries.<<

2. The balance of Emergency Order 07-20 remains in full force and effect and is subject to further amendment as set forth in Emergency Order 07-20.

Enacted: Signed: ~ -- -t:.;~j~i~f~J . ~ -- - - - -- - - - - -- - -- -

Dat~

CanceJled:
Signed:- - -- - -CO-U-NT-Y-M-AY- O-R -- -- -- - -- -- - - - - -- -

Date: - --

Time: - -

Witness:- - - - - -- - - - -- -

Page 2 of 2

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 31 of 34 PageID #: 136
AMENDMENT NO. 2 TO MIAMI-DADE COUNTY EMERGENCY ORDER 07-20
WHEREAS, on March 19, 2020, the County Mayor issued Emergency Order 07-20; and WHEREAS, Emergency Order 07-20 directed the closure of all non-essential retail and commercial establishments and included a list of essential businesses that may still operate; and WHEREAS, Emergency Order 07-20 provided for amendment by filing written notice with the clerk; and WHEREAS, Governor DeSantis issued Executive Order 20-71 which promulgated standards for
the sale ofalcohol; and
WHEREAS, additional retail and commercial establishments listed below provide essential business services during emergencies,
THEREFORE, as County Mayor of Miami-Dade County, I hereby order:
1. Paragraph 2 of Emergency Order 07-20 is hereby amended and restated to clarify that additional following essential businesses may remain open:
2. Essential retail and commercial businesses. which may remain open, are:
• • *
hh. Private and municipal marinas and boat launches, docking, fueling, marine supply and other marina services;
ii. Hotels, motels, other commercial lodging establishments and temporary vacation rentals. Notwithstanding the foregoing, restaurants, bars, and fitness center restrictions within these establishments remain as stated in Emergency Order 03-20;
jj. Veterinarians and pet boarding facilities; and kk. Mortuaries, funeral homes, and cemeteries. >>IL The sale of alcoholic beverages is authorized consistent with Executive Order 20-71 . mm. Firearm and ammunition supply stores.
Page 1 of2

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 32 of 34 PageID #: 137

Miami-Dade County Declaration of Local State of Emergency

nn . Businesses providing services to any local, state. or Federal government. including municipalities. pursuant to a contract with such government.<<

2. The balance of Emergency Order 07-20 remains in full force and effect and is

::~:,:d•:o 07-20. further amendment ~ •~=

n Emergency Order

S1gned:_ ~ --~:i.-::;ilo-illil!H1JrO-le=~=-~--:-1-r--- - - _ __ _ __ _ __ _ _ __ _ _
4C TYM R

Datc:.'.i'}?l,/41 •

Cancelled :

~ j w;1ness
,c

Signed:_ _ __ _ _ _ _ _ _ __ _ _ _ _ _ __ _ __ _ _ _ _ _ __ _

COUNTY MAYOR

Date: - - -

Time: - -

Witness:- - - -- -- -- - --

Page 2 of2

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 33 of 34 PageID #: 138
AMENDMENT NO. 3 TO MIAMI-DADE COUNTY EMERGENCY ORDER 07-20 WHEREAS, on March 19, 2020, the County Mayor issued Emergency Order 07-20; and WHEREAS, Emergency Order 07-20 directed the closure of all non-essential retail and commercial establishments and included a list ofessential businesses that may still operate; and WHEREAS, Emergency Order 07-20 provided for amendment by filing written notice with the clerk; and WHEREAS, Amendment No. 1 to Emergency Order 07-20 stated that marinas and boat launches, docking, fueling, marine supply and other marina services provide essential business services; and WHEREAS, large numbers of boaters congregated without observing social distancing and promoted large parties, the occurrence of which would have increased the risk of spreading COVID-19 throughout the community; and WHEREAS, as a result it is necessary to further limit the use of marinas and boat launches, docking, fueling, marine supply and other marina services; and
WHEREAS, Emergency Order 06-20 as amended from time to time contains detailed information
on the use of marinas, boat launches, docking, fueling, marine supply and other marina services for the duration ofthe state ofemergency, 1HEREFORE, as County Mayor of Miami-Dade County, I hereby order: l. Paragraph 2 of Emergency Order 07-20 as amended is hereby amended and restated to clarify that additional following essential businesses may remain open:
2. Essential retail and commercial businesses, which may remain open, are:
• • •
[[hit. Pfi¥ete aftEI mtiftieipel m&fi88fl BBd heat Jeunehes, deeking, feeling, mofine supply &Hd et:her mar.na semees]]
>>hh. Marinas, boat launches. docking. fueling. marine supply and other marina services
only as set forth in Emergency Order 06-20 as amended from time to time.<<
Page 1 of2

Case 3:20-cv-00278-DJH-RSE Document 1-13 Filed 04/17/20 Page 34 of 34 PageID #: 139

Miami-Dade County Declaration ofLocal State ofEmergency

• • •

2. The balance of Emergency Order 07-20 as amended remains in full force and effect and is

;;;:o further mn~

m«gency Order 07-20.

Data ~aa.o

Time: @ o.o

Witness:& ( 1 " .,_ '--1A'
Cancelled: Signed:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _ __
COUNTY MAYOR

Date: - --

Time: _ _

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 Case 3:20-cv-00278-DJH-RSE Document 45 Filed 06/17/20 Page 1 of 24 PageID #: 635

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MARYVILLE BAPTIST CHURCH, INC., )

and DR. JACK ROBERTS,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity as )

Governor of the Commonwealth of Kentucky, )

)

Defendant.

)

CASE NO. 3:20-cv-00278-DJH

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND AMENDED MOTION TO DISMISS
Pursuant to L.R. 7.1, Plaintiffs, Maryville Baptist Church, Inc. and Dr. Jack Roberts
(collectively “Plaintiffs”), by and through the undersigned counsel, hereby submit this Response
in Opposition to the Governor’s Motion to Dismiss (Docket No. 33) and Amended Motion to Dismiss. (D.N. 38).1 For the following reasons, the Governor’s motion should be denied.
FACTUAL BACKGROUND
A. The Procedural History Of Plaintiffs’ Claims And The Law Of The Case Already Holding That Plaintiffs Are Substantially Likely To Succeed On The Merits Of Their Constitutional And Statutory Claims.
On April 17, 2020, Plaintiffs initiated the instant action, filing a Verified Complaint for
Declaratory Relief, Temporary Restraining Order, Preliminary and Permanent Injunctive Relief,
and Damages (D.N. 1, “V.Compl.”), and moved this Court for a Temporary Restraining Order and

1

The Governor’s Amended Motion to Dismiss essentially incorporates all of the arguments

made in his original Motion to Dismiss, with a few other purported defenses added. (See D.N. 38-

1, Memorandum in Support of Amended Motion to Dismiss.) In accordance with this Court’s

Order (D.N. 44), Plaintiffs address both motions in this consolidated response.

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Preliminary Injunction. (D.N. 3). The next day, April 18, 2020, this Court issued an Order denying Plaintiffs’ motion for a temporary restraining order and preliminary injunction. (D.N. 9). On April 24, 2020, Plaintiffs noticed their appeal of this Court’s denial to the Sixth Circuit Court of Appeals. (D.N. 16). On May 2, 2020, on an emergency motion for injunction pending appeal, the Sixth Circuit Court of Appeals found that Plaintiffs were “likely to succeed on [their] state and federal claims, especially with respect to the ban’s application to drive-in services.” (D.N. 23, PageID 288 (emphasis added)). On May 8, 2020, after Plaintiffs had submitted a renewed motion for injunction pending appeal, this Court entered an Injunction Pending Appeal likewise finding that “Plaintiffs have a strong likelihood of success on the merits of their [state] KRFRA claim” (D.N. 35, PageID 578 (emphasis added)), and that “Plaintiffs are likely to succeed on the merits of their constitutional claims,” because the Governor’s orders could not survive the required strict scrutiny. (D.N. 35, PageID 578-580).
Interestingly, on the same day this Court issued its Injunction Pending Appeal (but prior to that decision), the Governor moved to dismiss Plaintiffs’ Verified Complaint, arguing that Plaintiffs could not state a claim under the First Amendment, that the Religious Land Use and Institutionalized Persons Act did not apply to Plaintiffs’ claims, and that the Eleventh Amendment barred determination of Plaintiffs’ state law claims. (D.N. 33-1, PageID at 501-505).
B. The Ever-Changing And Temporary Nature Of The Governor’s COVID-19 Gathering Restrictions And Orders.
Because the temporal nature of the Governor’s gathering restrictions imposed via his COVID-19 orders is relevant to his contentions relating to mootness and this Court’s subjectmatter jurisdiction, Plaintiffs provide the following chart outlining the timeline of all (pertinent) orders issued by the Governor during the COVID-19 period:
2

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Fig. 1. Temporary Duration of Stay-at-Home Restrictions Limiting Worship Services

Order/Action

Date Issued

Limit on religious worship

Status

Executive Order 2020-243 and March 19 Cabinet Order

Mar. 19, 2020

“Any gathering that brings together groups of individuals”

Amended and Extended by Executive Order 2020-257 signed on March 25, 2020

Executive Order 2020-257

Mar. 25, 2020

“Any gathering that brings together groups of individuals”

Extended by Executive Order 2020-275 on April 8, 2020

Executive Order 2020-275

Apr. 8, 2020

“Any gathering that brings together groups of individuals”

Duration clarified by Benchmark Announcement for Reopening Kentucky

Benchmark Announcement

Apr. 16, 2020

“Any gathering that brings together groups of individuals”

Noted that Executive Order 2020-243’s gathering restriction would last until 14 days have passed with decreasing cases and updates on vaccine and treatment

Healthy at Work, Apr. 21, 2020 Phases 1-2

“Any gathering that brings together groups of individuals”

Amended by Cabinet for Health and Family Services Order on May 9, 2020

May 9 Order of Cabinet for Health and Family Services; Guidelines for Places of Worship

May 9, 2020

“33% of building occupancy”

Amended by June 10 Order of Cabinet for Health and Family Services

3

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June 10 Order of Cabinet for Health and Family Services; Amended Guidelines for Places of Worship

June 10, 2020

“50% of building occupancy”

Current

LEGAL ARGUMENT
I. THE GOVERNOR’S CHANGE OF POLICY DOES NOT MOOT THIS CASE BECAUSE HE HAS NOT MET AND CANNOT MEET HIS FORMIDABLE BURDEN UNDER THE VOLUNTARY CESSATION DOCTRINE, AND THIS DISPUTE IS CAPABLE OF REPETITION YET EVADING REVIEW.
A. The Voluntary Cessation Of Illegal And Unconstitutional Conduct Does Not Moot Plaintiffs’ Claims.
1. The Governor Faces A “Formidable Burden” To Demonstrate That It Is Absolutely Clear He Will Not Resume Old Policies.
This Court should reject the Governor’s arguments that this case is moot. His sudden,
“voluntary” shift from the discriminatory prohibition on religious gatherings and worship services
enshrined in his Executive Order 2020-243 and Healthy at Work Reopening Kentucky plan, which
he has vigorously defended in this court, and at the Sixth Circuit, is not enough to remove his
conduct from review. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982) (“It is
well settled that a defendant's voluntary cessation of a challenged practice does not deprive
a federal court of its power to determine the legality of the practice.” (emphasis added)).
a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued. Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends. Given this concern, our cases have explained that a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.

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Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (emphasis added) (internal quotation marks and citation omitted).
2. The Governor Cannot Carry His Formidable Burden Because, Absent A Permanent Injunction, The Challenged Policies Can Be Reinstituted At Any Time.
Applying this “formidable burden,” the Supreme Court held in Trinity Lutheran Church of Columbia, Inc. v. Comer that a state governor’s “voluntary cessation of a challenged practice does not moot a case unless subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” 137 S. Ct. 2012, 2019 n.1 (2017) (cleaned up). Here, the Governor “has not carried the ‘heavy burden’ of making ‘absolutely clear’ that [he] could not revert to [his] policy,” id., of imposing unique and discriminatory numerical limits and restrictions on religious worship services, because his sudden change in policy is neither permanent nor irrevocable. See City of L.A. v. Lyons, 461 U.S. 95, 101 (1983).
The Healthy At Work plan, and the specific Guidelines for Places of Worship, issued only after the Governor was temporarily enjoined from enforcing his unconstitutional restrictions against Plaintiffs “by [their] terms [are] not permanent” and have not “‘irrevocably eradicated the effects of the alleged violation.’” Lyons, 461 U.S. at 101 (emphasis added). Neither the plain language of the May 9 Order of the Cabinet for Health and Family Services, nor the regulatory context of the Guidelines for Places of Worship demonstrates any legally enforceable provision binding the Governor irrevocably or durably against his fiat. See id.; Porter v. Bowen, 496 F.3d 1009, 1017 (9th Cir. 2007). In fact, just the opposite is true. As the May 9 Order demonstrates, “[t]he Cabinet for Health and Family Services will monitor these directives continuously” and continue to “provide updates” throughout the COVID-19 situation. (D.N. 36-1, PageID 585).
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Moreover, the Governor’s website that is constantly updating the requirements and restrictions on gatherings explicitly states:
Reminder: People should be prepared for state and local public health orders to be extended, amended, or changed as needed to protect public health. This means we may move between the different Phases during this pandemic. See Healthy at Work: Reopening Kentucky, available at https://govstatus.egov.com/ky-healthyat-work (last visited June 15, 2020) (emphasis original). Thus, not only is the Governor not contending that the change (brought about by numerous courts temporarily and preliminarily prohibiting him from enforcing his gathering restrictions) is permanent, but he is explicitly stating that previous restrictions may need to be reinstated, allegedly based on health metrics. No matter, claims the Governor, because the Sixth Circuit has indicated that government is entitled to a presumption that it will not reinstitute a previous order. (D.N. 38-1, PageID 600 (citing Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012)). But, Bench Billboard involved the actions of a City Council, acting through the cooperative and deliberative process that is attendant to the ordinary legislative process. 675 F.3d at 982. Moreover, the legislative body in Cincinnati not only officially repealed the challenged ordinance, it also “imposed an entirely new statutory scheme in place of the repealed ordinance,” id. (emphasis added), and, critically, “there was no evidence in the record that the City has announced any intention of, or made any threat to, reenact” the challenged law. Id. at 981 None of those things is true here. First, the Governor has “neither asserted nor demonstrated that [he] will never resume the complained of conduct.” Norman-Bloodsaw v. Lawrence Berkely Lab., 135 F.3d 1260, 1274 (9th Cir 1998). Second, the Governor’s directives are issued only at his whim and are not subject to the stringent legislative process that would entitle them to a presumption of permanence. See McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir.
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2015) (“[W]hile a statutory change ‘is usually enough to render a case moot,’ an executive action that is not governed by any clear or codified procedures cannot moot a claim.” (emphasis added)). To be sure, as quoted and demonstrated above, the Governor ostensibly plans to implement, change or reverse restrictions as health metrics and health criteria change. The Governor has already laid the groundwork for imposing more, not fewer restrictions going forward. Thus, not only has the Governor not affirmatively and positively disclaimed any intention to ever reinstate his unconstitutional restriction on religious worship services, but there is evidence he intends to reinstate restrictions within months, under certain circumstances. He cannot demonstrate mootness. Cf. United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 n.* (2018) (holding, where government intends to reinstate old policy, “the rescission of the policy does not render this case moot”); Pierce v. Ducey, No. CV-16-01538-PHX-NVW, 2019 WL 4750138, at *1 (D. Ariz. Sept. 30, 2019) (“A voluntary cessation joined with a threat to do it again is the paradigm of unsuccessful blunting of power to adjudicate . . . .”).
Moreover, the timing of the Governor’s policy change—only after he had been temporarily enjoined from enforcing his unconstitutional restrictions—is suspect, calls into question the representation that the Governor’s sudden reversal was a “considered decision,” and betrays an intent to go back to his old ways if the preliminary injunction is not made permanent. See Pierce, 2019 WL 4750138, *5–6 (“The Court is not fooled.”); cf. Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012) (“Such [post-litigation] maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye.”); McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 871 (2005) (rejecting counties’ mere “litigating position” as evidence of actual intent of county policies).
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Notably, the Seventh Circuit recently rejected almost identical mootness claims in almost identical circumstances. See Elim Romanian Pentecostal Church v. Pritzker, -- F.3d --, No. 201811, 2020 WL 3249062, *3 (7th Cir. June 16, 2020) (challenge to Illinois Governor’s voluntarily rescinded COVID-19 restrictions on religious services was not moot because “[t]he list of criteria for moving back to [a prior phase] (that is, replacing current rules with older ones) shows that it is not absolutely clear that the [challenged restrictions] will never be restored”). In Elim, as here, the case was not moot by the Governor’s rescission of the challenged order because the Governor retained the authority to reenact the previous restrictions at any time, and did not make “absolutely clear” that he will not do so. Id. (“It follows that the dispute is not moot and that we must address the merits of the plaintiffs’ challenge.”)2
3. The Governor Cannot Carry His Heavy Burden Because He Has Not Changed His Mind About The Legality Of The Gathering Restrictions And Continues To Vigorously Defendant Their Constitutionality.
A case is not moot where, as here, the Governor “did not voluntarily cease the challenged activity because he felt [it] was improper,” and “has at all times continued to argue vigorously that his actions were lawful.” Olagues v. Russoniello, 770 F.2d 791, 795 (9th Cir. 1985); Pierce, 2019 WL 4750138, at *5 (“[W]hen the government ceases a challenged policy without renouncing it, the voluntary cessation is less likely to moot the case.”). In numerous filings in this Court, including the motion currently pending, the Governor continues to assert that his original restrictions were constitutional. (D.N. 38-1, PageID 606 (incorporating all of the Governor’s arguments in opposition to Plaintiffs’ Renewed Emergency Motion for Injunction Pending

2

The Seventh Circuit’s upholding of the challenged restrictions in Elim is of no import here,

because the decision was rooted in its express disagreement with the Sixth Circuit’s decision and

rationale in this case. Id. at *5. Of course, the latter not the former controls this case.

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Appeal); D.N. 31, PageID 423-434 (arguing that the Governor’s orders are constitutional)). Thus, “[t]here is nothing in the parties’ submissions or the record to demonstrate the Governor changed his mind about the merits of Plaintiff[s’] claim.” Pierce, 2019 WL 4750138, at *6. “The Governor did not experience a change of heart that may counsel against a mootness finding.” Id. Furthermore, “[g]iven the importance of the issues at bar . . . the public interest in having the legality of the Governor’s behavior settled weighs against a mootness ruling.” Id. at *7.3
B. This Dispute Is Capable Of Repetition Yet Evading Review, And Not Moot. This case also “fit[s] comfortably within the established exception to mootness for disputes capable of repetition, yet evading review.” Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462 (2007). “The exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’” Id. Both conditions are true here. Given the rapidly changing COVID-19 landscape, there is no question that the duration of the Governor’s total prohibition on religious gatherings was always going to be “too short to be fully litigated prior to cessation or expiration.” Id. Indeed, Order 2020243 was superseded by Order 2020-257 after just 6 days, and the total prohibition first articulated in Order 2020-243 was only fully (as the Governor contends) amended to permit religious gatherings on May 9th, a mere 51 days after it was enacted (see supra Figure 1). It appears that the life span of the Orders runs from 6 days or less to 30 days. Even under the Governor’s

3

Moreover, Plaintiff Dr. Roberts and other members and/or attendees of Maryville Baptist

Church received letters warning that their failure to abide by the Governor’s restrictions subjected

them to “additional actions by health authorities.” (D.N. 1, PageID 17, ¶55 and V.Compl. Ex.K).

These letters have never been revoked or rescinded, and thus, without permanent injunctive relief,

Plaintiffs still suffer under the Damocles sword of enforcement actions at any time.

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recent Guidelines for Places of Worship, the duration of his restrictions will be too short to be fully litigated. See Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (two years is too short); Turner v. Rogers, 564 U.S. 431, 440 (2011) (12 months is too short); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978) (18 months is too short); Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) (two years is too short).
The realities of the Governor’s COVID-19 orders give Churches no more than 30 days to obtain final judicial review of any particular restriction imposed by the Governor. (Figure 1, supra). This time horizon is unquestionably shorter, to a significant degree, than either the two years, the 18 months, or even the 12 months held insufficient by the Supreme Court in the foregoing cases. And the Governor himself has forecasted “a reasonable expectation that [Plaintiffs] will be subjected to the same action again,” Wisconsin Right To Life, 551 U.S. at 462, given the Governor’s established preference for a total prohibition on religious worship services, and his explicit prediction that “People should be prepared for state and local public health orders to be extended, amended, or changed as needed to protect public health. This means we may move between the different Phases during this pandemic.” (See page 6, supra).
C. The Governor’s Voluntary Cessation Does Not Moot Plaintiffs’ Equitable Claims.
“Along with its power to hear a case, the court’s power to grant injunctive relief survives discontinuance of the illegal conduct.” United States v. W.T. Grant Co., 345 U.S. 629, 633 (193). Indeed, for this Court to still grant equitable relief in the form of a declaratory judgment or permanent injunctive relief, Plaintiffs need only show that “there exists come cognizable danger of recurring violation.” Id.; Smith v. S.E.C., 129 F.3d 356, (6th Cir. 1997) (same). The Sixth Circuit has held that injunctive and declaratory relief are available where – as here – “[t]here is a reasonable expectation that the alleged wrongful and unconstitutional deprivation may be
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repeated.” Southern Ohio Coal Co. v. Donovan, 774 F.2d 693, 699 (6th Cir. 1985) (emphasis original). As demonstrated supra, there is a possibility here – explicitly stated by the Governor as an expectation – that a return to prior orders and restrictions may be necessary during the COVID-19 pandemic. Thus, this Court retains the authority to declare the legal rights of the Plaintiffs and enjoin the Governor’s unconstitutional restrictions on religious gatherings.
D. The Governor’s Voluntary Cessation Does Not Moot Plaintiffs’ Damages Claims.
Finally, even if Plaintiffs’ claims for injunctive relief were moot, which they are not, Plaintiffs have pleaded a claim for damages. (V.Compl., D.N. 1, PageID 51). Under binding law in the Sixth Circuit, a claim for damages – even nominal damages – is sufficient to keep a case justiciable. See, e.g., Lynch v. Leis, 382 F.3d 642, n.2 (6th Cir. 2004) (noting that the Sixth Circuit “’squarely hold[s] that a claim for nominal damages is sufficient to render a case justiciable’” (quoting Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1268 (10th Cir. 2004) (McConnell, J., concurring)); Ermold v. Davis, 855 F.3d 715, 719 (6th Cir. 2017) (“Even ‘a claim for nominal damages is normally sufficient to establish standing and defeat mootness’” (quoting Lynch, 382 F.3d at 646 n.2)); Murray v. Bd. of Trustees, Univ. of Louisville, 659 F.2d 77, 79 (6th Cir. 1981) (finding district court erred by failing to consider claims for nominal damages, even though the claims for injunctive relief were moot).
In sum, the Governor’s attempt to avoid judicial accountability for his unconstitutional dictates fails. This case is not moot. The Court should deny the motion to dismiss. II. PLAINTIFFS’ WELL-PLEAD ALLEGATIONS STATE CLAIMS FOR
RELIEF. “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[A] complaint attacked by a Rule 12(b)(6) motion
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to dismiss does not need detailed factual allegations,” but a plaintiff must meet his “obligation to show the grounds of his entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court does “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face” and enough facts to “nudge[] [plaintiffs’] claims across the line from conceivable to plausible.” Id. at 570; see also Ashcroft, 556 U.S. at 679 (“a complaint that states a plausible claim to relief survives a motion to dismiss”). A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses. See 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990).
A district court cannot dismiss a complaint under Rule 12(b)(6) “unless after accepting all well-pleaded allegations in the plaintiff’s complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005) (emphasis added). It is axiomatic that motions to dismiss under Rule 12(b)(6) are highly disfavored. See, e.g. Nuchols v. Berrong, 141 F. App’x 451, 453 (6th Cir. 2005). Indeed, such motions “are rarely granted.” Id. (emphasis added). See also Damnjanovic v. U.S. Dep’t of Air Force, 135 F. Supp. 3d 601, 605 (E.D. Mich. Sept. 22, 2015) (same).
The Governor cannot overcome his extraordinarily high burden to prevail on his motion to dismiss, especially since both this Court and the Sixth Circuit have already concluded that Plaintiffs are likely to succeed on both their state and federal claims. Plaintiffs’ well-plead allegations unquestionably cross the minimum threshold, and the Governor’s Motion must be denied.
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A. Binding Sixth Circuit Precedent, And The Law Of The Case, Demonstrate That Plaintiffs Have Stated A Claim For Relief Under The First Amendment (And Are Likely To Succeed).
The Governor continues to argue that his restrictions on religious gatherings challenged in the instant action are perfectly permissible under the First Amendment because of the emergent nature of the COVID-19 situation. (D.N. 38-1, PageID 606). This contention must fail as a matter of law. The fatal problem for the Governor’s motion is that he asks this Court to address (and reverse) that which has already been decided: that his total prohibitions on religious gatherings – even during the COVID-19 situation – are unconstitutional under the First Amendment. See Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 614-15 (6th Cir. 2020) (Governor’s COVID-19 gathering restrictions are unconstitutional as to drive-in services, and likely also unconstitutional as to in-person worship services); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (Governor’s COVID-19 gathering restrictions are unconstitutional as to in-person and drive-in services); Maryville Baptist Church, Inc. v. Beshear, D.N. 35, Order Granting Injunction Pending Appeal and Preliminary Injunction as to restrictions on in-person worship services).
It is beyond cavil that the Governor cannot succeed on his motion to dismiss Plaintiffs’ constitutional claims, because these matters, decided by both the Sixth Circuit and by this Court in this matter, are now the law of the case. In fact, this Court is prohibited from revisiting the precise issue the Governor seeks here. “[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Pepper v. United States, 562 U.S. 476, 506 (2011) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)); Musacchio v. United States, 136 S. Ct. 709, 716 (2016) (same). Indeed, “[t]he doctrine ‘expresses the practice of courts generally to refuse to reopen what has been decided.’” Musacchio, 136 S. Ct. at 716 (quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912)). See also Caldwell v. City
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of Louisville, 200 F. App’x 430, 433 (6th Cir. 2006) (“The law-of-the-case doctrine precludes reconsideration of issues decided at an earlier stage of the case.”).
Put simply, “the law of the case doctrine and the mandate rule generally preclude a lower court from reconsidering an issue expressly or impliedly decided by a superior court.” United States v. Moored, 38 F.3d 1419, 1422 (6th Cir. 1994) (emphasis added). Even in the context of a preliminary injunction, when the Sixth Circuit issues a decision on an important issue of law in the case, “then that opinion becomes the law of the case.” Howe v. City of Akron, 801 F.3d 718, 740 (6th Cir. 2015). Thus, because the Sixth Circuit has already held that the Governor’s orders likely violate the First Amendment and the Kentucky RFRA, this Court is precluded from revisiting those question of law, and certainly precluded from concluding that Plaintiffs are not only unlikely to prevail but have not even stated cognizable claims.
B. The Sixth Circuit’s Decision Also Demonstrates That Plaintiffs’ Other First Amendment Claims State Cognizable Claims For Relief.
Though the Sixth Circuit’s decision in Maryville Baptist focused on the Free Exercise component of Plaintiffs’ Complaint, its analysis is equally binding on Plaintiffs’ Free Speech and Free Assembly claims. Plaintiffs have plainly alleged that the Governor’s orders impose a contentand viewpoint-based restriction on Plaintiffs’ free speech rights, and that the orders impose a prior restraint on their speech. (D.N. 1, V.Compl. ¶¶92-94). Content-based restrictions on speech must survive strict scrutiny. Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Thus, because Plaintiffs have alleged a content and viewpoint-based restriction on their speech, the Sixth Circuit’s determination that the Governor’s Orders cannot withstand strict scrutiny because they are not narrowly tailored or the least restrictive means, 957 F.3d at 614, applies equally to Plaintiffs’ free speech and free assembly claims.
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C. Plaintiffs’ Well-Plead Allegations Demonstrate That They Have Stated A Claim For Relief Under RLUIPA.
The Religious Land Use and Institutionalized Persons Act (“RLUIPA”) states that “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.” 42 U.S.C. § 2000cc(a)(1). If the government does impose such a restriction, it must satisfy strict scrutiny, i.e., demonstrate that such a burden on the religious assembly is supported by a compelling interest and is the least restrictive means to further that alleged interest. Id. RLUIPA has several key provisions, including inter alia an “[e]qual terms” provision, a “[n]ondiscrimination” provision, and a total exclusion provision. 42 U.S.C. §§2000cc(b)(1)-(3).4 Plaintiffs’ well-plead allegations state a claim under all three RLUIPA provisions.
1. Plaintiffs’ RLUIPA Claims Are Not Barred By Sovereign Immunity. The Governor contends that the Eleventh Amendment bars Plaintiffs’ RLUIPA claims. (D.N. 38-1, PageID 603-04 (citing Webman v. Fed. Bureau of Prisons, 441 F.3d 1022 (D.C. Cir. 2006)).5 This is incorrect. RLUIPA has been expressly held to authorize injunctive relief claims

4

The equal terms provision mandates that no government “impose or implement a land use

regulation in a manner that treats a religious assembly or institution on less than equal terms with

a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). The nondiscrimination

provision mandates that no government “impose or implement a land use regulation that

discriminates against any assembly or institution on the basis of religion.” 42 U.S.C. §

2000cc(b)(2). The total exclusion provision mandates that the government not “impose or

implement a land use regulation that . . . totally excludes religious assemblies from a jurisdiction.”

42 U.S.C. §2000cc(b)(3)(A).

5

The Governor’s reliance on Webman is misplaced. First, Webman involved RFRA, not

RLUIPA. 441 F.3d at 1025. Second, Webman dealt with whether the federal government had

waived sovereign immunity under RFRA. Id. Third, Webman’s only holding was that RFRA did

not waive the federal government’s sovereign immunity as to monetary damages, but recognized

it did waive sovereign immunity as to injunctive relief, which Plaintiffs seek here. Id.

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against states, which is what Plaintiffs seek here. See, e.g., Sossamon v. Texas, 536 U.S. 277, 285 (2011) (RLUIPA authorizes injunctive relief, but does not waive state’s sovereign immunity from suit for monetary damages); Cardinal v. Metrish, 564 F.3d 794 (6th Cir. 2009) (sovereign immunity only bars plaintiffs RLUIPA claims for monetary damages); Luther v. White, No. 5:17CV-P138-TBR, 2017 WL 6507655, *2 (W.D. Ky. Dec. 19, 2017) (citing Sossamon for the proposition that “RLUIPA generally authorizes only injunctive relief and does not waive a state’s sovereign immunity from suit for money damages” (emphasis added)); Robinson v. Parker, No. 5:12CV-P45-R, 2012 WL 3989925, *5 (W.D. Ky. Sept. 11, 2012) (holding that RLUIPA permits claims for injunctive relief against the states).
2. The Governor’s Orders Regulate How Plaintiffs Can Use Their Land And Emanate From His Authority To Regulate Land Use.
Next, the Governor contends that Plaintiffs’ RLUIPA claims fail to state a claim because the Governor’s Orders did not arise out of a zoning or land use scheme. (D.N. 38-1, PageID 605606). This contention fails too, because it ignores the very authority upon which the Governor purports to make his challenged orders.6
Under K.R.S. §39A-100(1), the Governor is given extraordinarily broad powers, including: (1) the enforcement, regulation, and authority to proscribe how all regulations in the Commonwealth may be interpreted, applied, or enforced, K.R.S. §39A-100(1)(a); (2) to force local

6

The Governor’s Orders repeatedly state that they are rooted in, and emanate from, K.R.S.

§39A. (See, e.g., D.N. 1-2, PageID 57 (noting that the Governor declared his state of emergency

“by virtue of the authority vested in me by Chapter 39A of the Kentucky Revised Statutes”); D.N.

1-3, PageID 60 (noting that the gathering restrictions were issued “[p]ursuant to the authority of

KRS Chapter 39A”); D.N. 1-5, PageID 66 (noting that the order was issued under “KRS Chapter

39A”); D.N. 1-6, PageID 69 (Executive Order 2020-246 issued “by virtue of authority vested in

me pursuant to the Constitution of Kentucky and KRS Chapter 39A,” and ordering the closure of

all business and entities that are not “life-sustaining” to close); D.N. 1-7, PageID 72 (“Kentucky

revised Statutes, including KRS Chapter 39A, empower me to exercise all powers necessary . . .

including the power to suspend state statutes and regulations”)).

16

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government authorities to act in any manner he directs, id. 39A-100(1)(b); and (3) to “seize, take, or condemn property” as he deems necessary. Id. §39A-100(1)(c) (emphasis added). Such extraordinarily broad powers certainly include – explicitly – the power to regulate the use of land, such as Plaintiffs’ churches. The power to seize, condemn, and take property is unquestionably an exercise of land use authority, and thus subjects the Governor to a right of action under RLUIPA.
In fact, RLUIPA specifically encompasses not only zoning and land use regulations, but “the application of such law[s], that limit or restrict a claimant’s use or development of land.” 42 U.S.C. §2000cc-5(5). Here, the Governor has applied his broad land use authority granted in K.R.S. §39A-100 to enact his challenged COVID-19 orders, which limit and restrict Plaintiffs’ ability to use their facilities and land for worship services. The Governor cannot purport to exercise authority under K.R.S. §39A-100, which gives him authority over land use, and then claim that his orders are not explicitly land use or zoning restrictions.
3. Plaintiffs’ Well-Pleaded Allegations State Claims Under RLUIPA’s Equal Terms, Nondiscrimination And Total Exclusion Provisions.
“The equal-terms section [of RLUIPA] is violated whenever religious land uses are treated worse than comparable non-religious ones, whether or not the discrimination imposes a substantial burden on the religious uses.” Digrugilliers v. Consolidated City of Indianapolis, 506 F.3d 612, 616 (7th Cir 2007); see also Vision Church v. Vill. of Long Grove, 468 F.3d 975, 1003 (7th Cir. 2006) (same). The Sixth Circuit has explicitly adopted this test as its own. See Tree of Life Christian Schs. v. City of Upper Arlington, 905 F.3d 357, 368-69 (6th Cir. 2018) (“[W]e adopt the Third, Seventh, and Ninth Circuit cases.” (citing Vision Church, 468 F.3d 975)). Plaintiffs’ Verified Complaint plainly states a claim under the equal terms provision. (D.N. 1, V.Compl. ¶45 (alleging that the Governor’s orders facially differentiate between religious and nonreligious
17

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assemblies)); (id. ¶238 (alleging that the Governor’s orders place a burden solely on religious assemblies while exempting similar non-religious assemblies or gatherings)).
Under the nondiscrimination provision of RLUIPA, Plaintiffs need only demonstrate that the government had treated them less favorably than other nonreligious entities and that “a discriminatory impact was foreseeable,” and “less restrictive alternatives were available.” Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historical Dist Comm’n, 768 F.3d 183, 199 (2d Cir. 2014). The Sixth Circuit has suggested that Plaintiffs need also demonstrate a “similar comparator” in order to state a claim. Tree of Life, 905 F.3d at 370. Here, there is no question that a discriminatory impact was foreseeable, as the Governor’s orders imposed a blanket restriction on Plaintiffs’ religious gatherings (D.N. 1, V.Compl. ¶¶230), and numerous less restrictive alternatives were available. (D.N. 1, V.Compl. ¶¶69-79). Moreover, as the law of the case from the Sixth Circuit’s decision in Maryville Baptist demonstrates beyond cavil, Plaintiffs have demonstrated a suitable comparator. Maryville Baptist, 957 F.3d at 613 (“The way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches.”).
Finally, a violation of the total exclusion provision of RLUIPA may be found where – as here – the Governor’s Orders have “the effect of depriving [Churches] and other religious institutions and assemblies of reasonable opportunities to practice their religion, including the use and construction of structures.” Rocky Mountain Christian Church v. Bd. of Cnty. Comm’rs, 613 F.3d 1229, 1238 (10th Cir. 2010). Plaintiffs’ well-plead allegations demonstrate that the Governor’s Orders have unquestionably deprived Plaintiffs of the ability to use their facilities to host worship services along similar lines as non-religious gatherings are permitted. (D.N. 1,
18

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V.Compl. ¶¶64-68 (alleging the disparate treatment afforded to non-religious gatherings while the blanket prohibition was imposed on Plaintiffs’ religious worship services)).
In sum, the Governor’s motion to dismiss Plaintiff’s RLUIPA claims should be denied. D. Plaintiffs’ Well-Pleaded Allegations Under KRFRA State Cognizable Claims
And Are Not Barred By The Eleventh Amendment. Like Plaintiffs’ First Amendment claims, the law of the case precludes revisiting Plaintiffs’ KRFRA Claims. For the first time in this matter, the Governor now contends that the Eleventh Amendment bars this Court’s consideration of Plaintiffs’ claims under the Kentucky Religious Freedom Restoration Act (KRFRA). (D.N. 38-1, PageID 603-604). But, fatally for the Governor, here again he seeks revisiting that which has already been decided by both the Sixth Circuit and this Court, and is thus the law of the case. See Maryville Baptist Church, Inc., 957 F.3d at 613-614 (holding the Governor’s COVID-19 gathering restrictions violate KRFRA and “plainly so” (emphasis added)); Maryville Baptist Church, Inc., D.N. 35 (“the Court is compelled to find that Plaintiffs have a strong likelihood of success on the merits of their KRFRA claim” (emphasis added)). Moreover, numerous federal courts have routinely permitted claims under state RFRA statutes, including this very District in this very scenario, without any concerns as to the purported 11th Amendment bar the Governor purports to raise here, and even expressly rejecting sovereign immunity claims for injunctive relief under such statutes (which is what Plaintiffs seek here). See, e.g., On Fire Christian Ctr., Inc. v. Fischer, 2020 WL 1820249, *9 (W.D. Ky. Apr. 11, 2020) (holding that the Governor’s orders challenged here violate KRFRA); Youngblood v. Florida, No. 3:01-CV-1449-J-16MCR, 2005 WL 8159645, *10 (M.D. Fla. Mar. 17, 2005) (rejecting sovereign immunity as grounds for dismissing Florida RFRA claims for injunctive and declaratory relief against the state, and upholding sovereign immunity only as to a claim for damages) (“[A]n
19

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agency of the State of Florida[] cannot be sued for civil monetary damages in this case due to the principle of sovereign immunity. However . . . Plaintiffs can seek prospective relief in the form of an injunction and declaratory judgment, as immunity is not a bar to equitable relief.” (emphasis added)); Muhammad v. Crews, No. 4:14CV379-MW/GRJ, 2016 WL 3360501, *7 (N.D. Fla. June 15, 2016) (sovereign immunity shields state officials from Florida RFRA claims for damages but not declaratory relief) (“FRFRA was passed by the Florida Legislature after the Supreme Court held that RFRA did not apply against the states, and it was intended to ensure that RFRA-like protections would be in place for actions taken by state governmental entities.”); Fiedor v. Florida Dep't of Fin. Services, --- F. Supp. 3d ---, No. 4:18CV191-RH-CAS, 2020 WL 881998, *4, *7 (N.D. Fla. Feb. 24, 2020) (reaching plaintiff’s Florida RFRA claim on the merits, noting that “[t]he count sought an injunction, not damages, apparently recognizing that the Act does not create an action for damages.”).
In sum, the Governor’s motion to dismiss Plaintiffs’ KRFRA claims should be denied. III. THE GOVERNOR’S UNCLEAN HANDS DEFENSE IS OFFENSIVE TO
PLAINTIFFS’ WORSHIP SERVICES, IRRELEVANT AS A MATTER OF BINDING FIRST AMENDMENT LAW, AND IMPROPER AT THE MOTION TO DISMISS STAGE. Remarkably, the Governor contends that Plaintiffs cannot seek prospective relief in this matter because they refused to bend to the Governor’s orders, even though they infringed protected First Amendment rights. (D.N. 28-1, at 7-8). However, “[t]he Constitution can hardly be thought to deny one subjected to the restraints of such an ordinance the right to attack its constitutionality because he has not yielded to its demands.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969) (emphasis added). See also Dombrowski v. Pfister, 380 U.S. 479, 494 (1965) (“So long as the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one.”); N.H. Right to Life Pol. Action
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Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996) (“it is not necessary that a person expose herself to arrest or prosecution under a statute in order to challenge that statute in federal court” because the “threat of present or future prosecution itself works an injury that is sufficient to confer standing, even if there is no history of past enforcement”).
The Governor contends that GEFT Outdoors, LLC v. City of Westfield, 933 F.3d 357 (7th Cir. 2019) closes the doors for equitable relief. (D.N. 38-1, PageID 602-603). However, GEFT Outdoors did not involve a First Amendment claim, but rather a due process claim. 933 F.3d at 364 (the “preliminary injunction motion focuses solely on its due process claim”).7 As Shuttlesworth and Dombrowski make evident, the First Amendment provides an entirely different calculus. Thus, the notion that Plaintiffs must yield to the Governor’s demands prior to challenging his unconstitutional restrictions on worship services is incorrect.
The Governor also attempts to rely on a purported video of one religious service at Maryville Baptist Church, in a misguided effort to show that the Church has “unclean hands.” (D.N. 38-1, PageID 602). This effort fails for multiple reasons. First, the Governor’s attempt to bring in “evidence” outside of the pleadings is improper. On a motion to dismiss, the Governor is limited to the allegations of the Complaint and any exhibits thereto. See, e.g., Passa v.. City of Columbus, 123 F. App’x 694, 697 (6th Cir. 2005) (“a court generally may not consider any facts outside the complaint and exhibits attached thereto”).
Second, even if this Court could consider the Governor’s suggested “evidence” outside of the pleadings, and even if this “evidence” were relevant to anything, neither of which is conceded,

7

The Governor also references Cleveland Newspaper Guild, Local 1 v. Plain Dealer Publ’g

Co., 839 F.2d 1147 (6th Cir. 1988) (D.N. 38-1 at 7). But, that matter involved a sex discrimination

claim in the employment context, not the First Amendment. 839 F.2d at 1149. It is thus wholly

irrelevant to Plaintiffs’ claims.

21

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it is premature and perilous to afford such untested evidence any weight. The Governor does not offer, nor could he, any evidence as to the relationship of the individuals purportedly standing closer than six feet apart (i.e., whether they are from the same household), nor any evidence that the video actually shows people closer than six feet apart. Indeed, the Governor does not even offer any evidence or testimony to authenticate the purported video. More importantly, discovery may well reveal that the Church has appropriately spaced the choir seats to account for social distancing, including by removing every other seat (as is readily apparent in the video). Discovery may well reveal that the individuals in the choir are actually much farther apart than would appear on the video, which is obviously distorted because of how disproportionately “thin” the people in it look. Indeed, discovery may reveal that the video is filmed with a telephoto lens from a great distance away in the back of the church, and therefore suffers from perspective distortions including “foreshortening” – “an effect caused by visual compression of an image [] most often … noticed with a telephoto lens … [whereby] intra distances of items in the frame look compressed.” (https://www.quora.com/What-is-Foreshortening-in-photography-and-how-toimprove, last visited June 17, 2020).
Third, the Governor’s “unclean hands” argument, and his monitoring of the church’s worship services, demonstrate his continuing hostility towards Plaintiffs’ religious gatherings. Does the Governor go around inquiring as to whether every individual in Walmart, Target, Lowe’s or Home Depot maintains strict 6-foot separation at all times in the store? Are his enforcers present at these locations with measuring sticks to ensure no one violates a six-foot distancing requirement? Did the Governor go to strictly enforce his 6-foot distancing requirement on any of the thousands of protestors, rioters, or looters that have recently taken to the streets in Kentucky? Of course not. The Governor persists in attempting to impose stringent enforcement protocols only
22

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upon Plaintiffs’ Church, while trusting non-religious gatherings and turning a blind eye to numerous social distancing “violations” that most assuredly take place there. If the Governor wishes to open up a new front in this litigation based upon his uneven enforcement of his restrictions, Plaintiffs should be given the opportunity to confirm all of these discriminatory tactics through discovery. IV. SHOULD THIS COURT GRANT DEFENDANT’S MOTION, PLAINTIFFS
SHOULD BE GIVEN LIBERAL LEAVE TO AMEND. Should this Court grant the Governor’s motion in any respect, which it should not do, the Court must permit Plaintiffs to amend their Complaint to cure any perceived deficiencies. Civil Rule 15 explicitly states that “[t]he court should freely grant leave to amend.” Fed. R. Civ. P. 15(a)(2). See also Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that Rule 15 imposes a mandate that courts liberally grant leave to amend, and “this mandate is to be heeded”); Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997) (“courts should liberally grant plaintiffs leave to amend their complaints”). Here, as the Sixth Circuit has already recognized, Plaintiffs’ claims not only clear the low hurdle of Rule 8, but also the high bar of proving a substantial likelihood of success on the merits, as was necessary to obtain preliminary injunctive relief. That the Governor has issued revised guidance does not alter this calculus. Indeed, the Governor’s Guidelines for Places of Worship (see supra Fig. 1), still purport to impose more stringent restrictions on religious gatherings than those required of similarly situated non-religious gatherings. The Governor is maintaining his unconstitutional regime, under a different name, and Plaintiffs can state a claim to challenge this disparate treatment. Moreover, under McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005), the unconstitutional taint of the Governor’s orders continues.
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CONCLUSION For the foregoing reasons, Plaintiffs’ claims are not moot and plainly state cognizable claims for relief. The Governor’s motion to dismiss should be denied.
Respectfully submitted,
/s/ Horatio G. Mihet Mathew D. Staver* Horatio G. Mihet* Roger K. Gannam* Daniel J. Schmid* LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 Phone: (407) 875-1776 Facsimile: (407) 875-0770 Email: court@lc.org
hmihet@lc.org rgannam@lc.org dschmid@lc.org Attorneys for Plaintiffs *Admitted pro hac vice
CERTIFICATE OF SERVICE I hereby certify that on this 17th day of June, 2020, I caused a true and correct copy of t he foregoing to be electronically filed with this Court. Service will be effectuated on all counsel of record via this Court’s ECF/electronic notification system.
/s/ Horatio G. Mihet Horatio G. Mihet
24

 
 Case 3:20-cv-00278-DJH-RSE Document 46 Filed 06/29/20 Page 1 of 2 PageID #: 659

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH Electronically Filed

MOTION TO DISSOLVE THE PRELIMINARY INJUNCTION AND INJUNCTION PENDING APPEAL AND NOTICE OF SUPPLEMENTAL AUTHORITY
Comes now, Defendant Governor Andy Beshear, by and through counsel, and hereby
respectfully moves to dissolve the preliminary injunction and injunction pending appeal and to
provide the Court with notice of supplemental legal authority that is dispositive of the First
Amended Motion to Dismiss, filed May 12, 2020. A memorandum of law is attached that
supports the motion and explains the supplemental authority.
Respectfully submitted,
/s/ Taylor Payne La Tasha Buckner General Counsel S. Travis Mayo Chief Deputy General Counsel Taylor Payne Deputy General Counsel Laura Tipton Deputy General Counsel Marc Farris Deputy General Counsel Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 (502) 564-2611

Case 3:20-cv-00278-DJH-RSE Document 46 Filed 06/29/20 Page 2 of 2 PageID #: 660
LaTasha.Buckner@ky.gov travis.mayo@ky.gov taylor.payne@ky.gov laurac.tipton@ky.gov marc.farris@ky.gov Counsel for Governor Andy Beshear
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Motion to Dissolve and Notice of Supplemental Authority were filed with the Clerk of this Court through the Court’s CM/ECF filing system causing all counsel of record to be served on this the 29th day of June, 2020.
/s/Taylor Payne Taylor Payne

Case 3:20-cv-00278-DJH-RSE Document 46-1 Filed 06/29/20 Page 1 of 7 PageID #: 661

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISSOLVE THE PRELIMINARY INJUNCTION
AND INJUNCTION PENDING APPEAL Defendant Governor Andy Beshear respectfully submits this Memorandum of Law in support of his Motion to Dissolve the Preliminary Injunction and Injunction Pending Appeal and to provide the Court with notice of supplemental legal authority that is dispositive of the First Amended Motion to Dismiss, filed May 12, 2020. The Supreme Court has issued intervening law clarifying that enjoining the mass gatherings order was improper. “When presented with a motion for a preliminary injunction, a district court considers four factors: (1) the plaintiffs' likelihood of success on the merits, (2) whether the plaintiffs could suffer irreparable harm without the injunction, (3) whether granting the injunction will cause substantial harm to others, and (4) the impact of the injunction on the public interest.” Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996). “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” O’Toole v. O’Connor, 802 F.3d 783, 788 (6th Cir. 2015) (quoting Gonzales v. Nat’l Bd. of Med. Examiners,

Case 3:20-cv-00278-DJH-RSE Document 46-1 Filed 06/29/20 Page 2 of 7 PageID #: 662
225 F.3d 620, 625 (6th Cir. 2000)). A court retains jurisdiction to dissolve a preliminary injunction “[w]here ‘significant changes in the law or circumstances’ render the injunction no longer equitable. Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 414 (6th Cir. 2012).
This Court initially denied Plaintiffs’ motion for a temporary restraining order, finding that the mass gatherings order did not discriminate against religious practice because it prohibited both secular and non-secular mass gatherings. (Doc. 9, PageID#: 224-25.) The Sixth Circuit disagreed. It held that Plaintiffs were likely to succeed under their First Amendment claims because the mass gatherings order “inexplicably applied to one group” but exempted “‘life-sustaining’ businesses” such as “law firms, laundromats, liquor stores, and gun shops[.]” Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 614 (6th Cir. 2020). The Sixth Circuit enjoined enforcement of the mass gatherings order to the extent it applied to drive-in church services. Id.
Additionally, in a case that has now been consolidated with the instant case before the Sixth Circuit, for the same reasons set forth in Maryville Baptist, the Sixth Circuit issued an injunction pending the appeal of a denial of a preliminary injunction issued by a District Court in the Eastern District of Kentucky. Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020). With that guidance, this Court applied strict scrutiny to the mass gatherings order and issued the Plaintiffs’ requests for a preliminary injunction and injunction pending appeal. (Doc. 35, PageID #: 57879.)
The Maryville Baptist and Roberts opinions are no longer good law, and therefore Plaintiffs no longer have any likelihood of success on the merits. On May 29, 2020, United States Supreme Court Chief Justice John Roberts, in a concurring Opinion in support of an Order denying a motion for injunctive relief, made clear that the mass gatherings order at issue in this
2

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case passes constitutional muster and should not be enjoined. South Bay United Pentecostal Church, et al. v. Newsom, No. 19A1044, 590 U.S. --- (May 29, 2020).1
In South Bay United, like this case, the plaintiffs challenged a broad prohibition on mass gatherings that did not single out First Amendment protected activity. Id., at *1. The South Bay United case arose from several executive orders issued by Governor Newsom that are analogous to Kentucky’s mass gatherings order. Id. In particular, on March 19, 2020, Governor Newsom issued Executive Order N-33-20, ordering all individuals living in California to stay at home or their places of residence. Id. On May 7, 2020, Governor Newsom published a four-stage plan for reopening the state. Religious establishments could not reopen until the state progressed into stage 3, but offices, manufacturing, retail, groceries, and other services were allowed to open prior to stage 3. Further, California issued additional guidelines for religious organizations when they are allowed to open in stage 3, limiting attendance to 25% of building capacity or a maximum of 100 attendees.
South Bay United filed suit, arguing that allowing certain entities to open prior to religious organizations violated the Free Exercise Clause of the First Amendment. Id. The District Court and the Ninth Circuit each denied South Bay’s request for preliminary injunctive relief. South Bay applied for an injunction to the United States Supreme Court, which also denied injunctive relief.
The Supreme Court upheld the denial of the same injunctive relief Plaintiffs sought here because “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the
1 On the same day, the Court also denied an application by two churches in Chicago to enjoin Illinois’ stay-at-home order. Elim Romanian Church, et al. v. Pritzker, Gov. of Illinois, 19A1046 (Order List 590 U.S.) (U.S. May 29, 2020). Following that denial, the Seventh Circuit relied on South Bay United to affirm the lower court’s denial of the preliminary injunction sought by the Plaintiff churches. Elim Romanian Pentecostal Church v. Pritzker, --- F.3d ----, 2020 WL 3249062 (7th Cir. June 16, 2020).
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politically accountable officials of the States ‘to guard and protect.’” Id. (quoting Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905).) In particular, the Supreme Court held that the California Order prohibiting mass gatherings “appear[ed]” to pass First Amendment review because it applied similar restrictions to “lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time,” while treating differently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.” Id., at *2.
Moreover, the South Bay United Opinion explained the importance of providing leeway to executive officials responding to an emergency with evolving scientific data, and admonished the federal courts not to interfere with such decisions. As the Opinion explained, “[w]hen [state] officials ‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’” Id. (quoting Marshall v. United States, 414 U. S. 417, 427 (1974).) Especially during an emergency, state officials “should not be subject to secondguessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” Id. (quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).) In closing, Chief Justice Roberts wrote:
That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable. Id., at *2-3. Chief Justice Roberts’ decision makes clear that the Sixth Circuit’s opinion on which this Court relied is no longer good law, because it is entirely permissible for state officials to treat
4

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laundromats and offices differently from places of mass gathering. Id. Importantly, both the plaintiffs and dissenters in South Bay United expressly relied upon the Sixth Circuit’s decisions concerning Governor Beshear’s Orders. But the Supreme Court, in a published opinion, has now explicitly spoken to the Sixth Circuit’s reasoning and rejected it as a basis for enjoining temporary public health measures addressing COVID-19.
Since its issuance, courts continue to rely on South Bay United to uphold or deny enjoining state action in response to COVID-19. See e.g., Texas Democratic Party v. Abbott, --F.3d ---, 2020 WL 2982937 (5th Cir. June 4, 2020); Talleywhacker, Inc. v. Cooper, --- F.Supp.3d ---, 2020 WL 3051207 (E.D.N.C. June 8, 2020); Elkhorn Baptist Church v. Brown, --- P.3d ---, 2020 WL 3116543 (Or. 2020); Christian Cathedral v. Pan, 2020 WL 3078072 (N.D.Cal. June 10, 2020); Professional Beauty Fed. of California v. Newsom, 2020 WL 3056126 (C.D.Cal. June 8, 2020); Altman v. County of Santa Clara, --- F.Supp.3d ----, 2020 WL 2850291 (N.D.Cal June 2, 2020); Calvary Chapel Lone Mountain v. Sisolak, --- F.Supp.3d ----, 2020 WL 3108716 (D.Nev. June 11, 2020); High Plains Harvest Church v. Polis, 2020 WL 3263902 (D.Colo. June 16, 2020); League of Ind. Fitness Facilities and Trainers, Inc. v. Whitmer, --- F.Supp.3d ----, 2020 WL 3421229 (W.D.Mich. June 19, 2020).
Plaintiffs raise the same claims here. Like California’s order, Kentucky’s Mass Gatherings Order meets this standard because it applied “[s]imilar or more severe restrictions . . . to comparable secular gatherings[.]” Id. at *2. And like the California Governor, Governor Beshear should be afforded broad latitude to craft temporary emergency public health measures to respond to COVID-19. The majority thus rejected the reasoning of the Sixth Circuit in reaching its decision.
5

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The other factors – as they did before – weigh heavily towards dissolving the injunctions. Just last week, an outbreak of 17 cases of COVID-19 occurred at a central Kentucky church that began holding in-person services on May 13, 2020.2 And now, the Supreme Court has recognized that the public interest is served by providing governors with broad latitude to craft responses to public health emergencies.
Based on the reasons set forth in the First Amended Motion to Dismiss and for the reasons in Chief Justice Roberts’ well-reasoned Opinion, the injunctions should be dissolved and this case should be dismissed. Importantly, the Court should dissolve the injunctions even though faith-based organizations are now permitted to open in the Commonwealth and the case is moot, because it is essential that this Court restore the leeway that our federal system provides to democratically elected state officials during an emergency. “The essence of our federal system is that within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal . . . .” Garcia, 469 U.S. at 546. See also Younger v. Harris, 401 U.S. 37, 44 (1971) (“‘Our Federalism’ . . . is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.”). In the event the disease returns in force, or some other emergency arises, it is essential that Governor Beshear and other state officials be able to respond promptly and with the latitude afforded to them by our federalist
2 Alex Acquisto, This Central Kentucky church reopened on May 10 and became a Covid-19 hot spot, Lexington Herald-Leader, June 5, 2020 (last visited June 8, 2020).
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Case 3:20-cv-00278-DJH-RSE Document 46-1 Filed 06/29/20 Page 7 of 7 PageID #: 667
system. State officials must be able to respond to this evolving public health emergency without second-guessing by the federal courts.
Beyond dissolving the injunctions, the Court should also dismiss Plaintiffs’ claims for the reasons set forth in the First Amended Motion to Dismiss and the reasons set forth in South Bay United. This intervening law by the Supreme Court makes clear that Plaintiffs cannot prevail on their claims under the First Amendment.
Respectfully submitted, /s/ Taylor Payne La Tasha Buckner General Counsel S. Travis Mayo Chief Deputy General Counsel Taylor Payne Deputy General Counsel Laura Tipton Deputy General Counsel Marc Farris Deputy General Counsel Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 (502) 564-2611 LaTasha.Buckner@ky.gov travis.mayo@ky.gov taylor.payne@ky.gov laurac.tipton@ky.gov marc.farris@ky.gov Counsel for Governor Andy Beshear
7

Case 3:20-cv-00278-DJH-RSE Document 46-2 Filed 06/29/20 Page 1 of 1 PageID #: 668

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH

ORDER This matter having come before the Court on the Governor’s Motion to Dissolve the Preliminary Injunction and Injunction Pending Appeal, and the Court having reviewed the Motion and being sufficiently advised, it is hereby ORDERED that the Motion to Dissolve is GRANTED. So Ordered this ___ day of ________________, 2020.
__________________________________ JUDGE DAVID J. HALE United States District Court for the Western District of Kentucky

 
 Case 3:20-cv-00278-DJH-RSE Document 49 Filed 07/13/20 Page 1 of 9 PageID #: 673

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE

MARYVILLE BAPTIST CHURCH, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity )

as the Governor of the Commonwealth of )

Kentucky,

)

)

Defendant.

)

Civil Action No. 3:20-cv-00278-DJH

GOVERNOR BESHEAR’S REPLY IN SUPPORT OF MOTION TO DISMISS

Significant developments have occurred since the filing of the First Amended Motion to

Dismiss on May 12, 2020. First, cases of COVID-19 are increases at a record pace across the

country. On July 8, 2020, the United States surpassed 3,000,000 cases of COVID-19 and

reported a one-day record of 60,021 new cases on July 7.1 More than 132,000 Americans have died from COVID-19.2 Second, the Supreme Court has denied requests for the same relief

Plaintiffs seek here. See South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020.

The Sixth Circuit has adopted the reasoning of South Bay. Third, the challenged order is no

longer in effect. As the Governor moves to reopen services, places of worship may now operate

at 50% capacity. Plaintiffs do not challenge the capacity limitations in this action. For these

additional reasons, the First Amended Motion to Dismiss should be granted.

1 John Bacon, et al. Coronavirus updates; US hits daily record; New Jersey to require masks outdoors; United Airlines announces major layoffs, USA Today, July 8, 2020, available at https://www.usatoday.com/story/news/health/ 2020/07/08/covid-19-us-3-million-cases-florida-newjersey/5391309002/ (last visited July 9, 2020). 2 Id.

Case 3:20-cv-00278-DJH-RSE Document 49 Filed 07/13/20 Page 2 of 9 PageID #: 674
I. COVID-19 Cases Are Increasing Across The United States. Recent spikes of COVID-19 cases across the country show that the disease is more
dangerous than ever, and public health officials in those states have imposed new restrictions in attempting to slow the spread of the virus. Kentucky has yet to experience such a spike, but if it does, the Governor and public health officials must have the flexibility and discretion to address it appropriately.
In late June, as cases began to rise throughout Texas, its Governor halted its reopening, closing its bars, reducing restaurant capacity, and prohibiting gatherings of over 100 people.3 The city of Houston announced on July 3 that beds in the intensive care units of its hospital system had nearly reached capacity.4 While Houston has not yet implemented crisis standards, there can be no doubt that when hospital beds reach capacity some form of rationing will be required unless more beds are made available, quickly. Over the Fourth of July weekend, hospitals in at least two counties in Texas reached capacity, prompting Judges in those counties to issue shelterin-place orders.5
Starting over the Fourth of July weekend, South Carolina has set records for new cases and reported 2,239 new cases on July 11 and 1,952 new cases on July 12.6 South Carolina’s Governor has lifted many restrictions on businesses, and he has warned citizens that college and
3 Gov. Greg Abbott orders Texas bars to close again and restaurants to reduce to 50% occupancy as coronavirus spreads, Texas Tribune, June 26, 2020, available at https://www.texastribune.org/2020/06/26/texas-bars-restaurantscoronavirus-greg-abbott/ (last visited July 8, 2020). 4 Joshua Nelson, Houston doctor reports 'ICU beds are just about at capacity' due to surge of coronavirus cases, Fox News, July 4, 2020, available at https://www.foxnews.com/media/houston-doctor-bill-fisher-coronavirus-icucapacity (last visited July 6, 2020). 5 Alta Spells and Susannah Cullinane, 2 Texas counties urge residents to shelter in place as hospitals reach capacity, CNN, July 4, 2020, available at https://www.cnn.com/2020/07/04/us/texas-hospitals-coronavirus/index.html (last visited July 4, 2020). 6 See Lou Bezjak and Noah Felt, Cases of COVID-19 complication deadly to kids found in SC, with 1,952 new positive tests, The State, July 12, 2020, available at https://www.thestate.com/news/coronavirus/ article244173052.html (last visited July 13, 2020).
2

Case 3:20-cv-00278-DJH-RSE Document 49 Filed 07/13/20 Page 3 of 9 PageID #: 675
high school football are unlikely to resume in the fall.7 California has also seen a resurgence of
COVID-19 cases after early success in battling the disease, with daily diagnoses of over 4,000
positive cases. In the southern California counties where the disease is spreading most rapidly,
Governor Newsom has closed indoor operations at all restaurants, wineries, movie theaters,
family entertainment centers, zoos, museums and cardrooms.8
And in Florida, which reopened quicker than most states, the state reported nearly 15,300
new cases on July 12 and 12,624 new cases on July 13.9 Florida now has 282,435 cases of
COVID-19.10 The test positivity rate reached 19.6-percent (19.6%) there on Sunday.11 Florida’s
governor shut down bars on June 26, 2020.12 The Florida Supreme Court agreed when it ruled
that a “pandemic was a ‘natural emergency’ under Florida’s emergency management law, and
DeSantis was within his rights when he closed restaurants and bars earlier this year.”13,14
7 Lou Bezjak and Noah Feit, SC health officials report more than 1,400 new COVID-19 cases, eight deaths, The State, July 5, 2020, available at https://www.thestate.com/news/coronavirus/article244012572.html (last visited July 5, 2020). 8 Stephanie Sierra and Alix Martichoux, Gov. Newsom warns Californians to follow new health orders ahead of Fourth of July, ABC 7 News, July 5, 2020, available at https://abc7news.com/california-coronavirus-what-didgavin-newsom-say-today-are-parks-open-in-counties-closed/6292195/ (last visited July 5, 2020). 9 Michelle Marchante, Florida sees more than 12,600 new coronavirus cases as Miami-Dade total hits 67,713, Miami Herald, July 13, 2020, available at https://www.miamiherald.com/news/coronavirus/article244183227.html (last visited July 13, 2020). 10 Id. 11 Christina Maxouris and Holly Yan, Florida shatters US record for new single-day Covid-19 cases, CNN Health, July 12, 2020, available at https://www.cnn.com/2020/07/12/health/us-coronavirus-sunday/index.html (last visited July 12, 2020). 12 NBC Miami, Florida Shuts Down Consumption of Alcohol at Bars Statewide, available at https://www.msn.com/en-us/finance/smallbusiness/florida-shuts-down-consumption-of-alcohol-at-bars-statewide/arBB160rZr (last visited July 5, 2020). 13 Lauren Johnson, Florida Supreme Court affirms governor’s emergency powers during pandemic, The Times (Apalachiola), June 26, 2020, available at https://www.apalachtimes.com/news/20200626/florida-supreme-courtaffirms-governorrsquos-emergency-powers-during-pandemic (last visited July 3, 2020). 14 As Defendants have argued, COVID-19 has reached all areas and places, including in-person services of faithbased organizations. In a rural county of 25,000 people, 35 people developed COVID-19, causing the deaths of three people, all linked to attendees of an Arkansas church with less than 100 attendees. Allison James, DVM, PhD, et al., CDC Morbitiy and Mortality Weekly Report (MMWR), High COVID-19 Attack Rate Among Attendees at Events at a Church – Arkansas, March 2020, May 22, 2020, available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6920e2.htm (last visitsed July 12, 2020).
On May 12, 2020, the Centers for Disease Control and Prevention (CDC) published a Morbidity and Mortality Weekly Report titled High SARS-CoV-2 Attack Rate Followign Exposure at a Choir Practice – Skagit
3

Case 3:20-cv-00278-DJH-RSE Document 49 Filed 07/13/20 Page 4 of 9 PageID #: 676
Kentucky has 19,121 reported cases of COVID-19 and 622 Kentuckians have died from
COVID-19.15 With 453 new cases on July 11 and 426 new cases on July 10 – the second- and
third-highest daily number of new cases since the emergency began – Kentucky is no longer in a
plateau.16 Kentucky had 277 new cases on July 12, 333 new cases on July 9 and 402 new cases
on July 8, 2020.17 Comparing cases reported from June 29 to July 5 with cases reported from
July 6 to July 12, Kentucky has had a 48.7% increase in positive cases.18
County, Washington, March 2020, regarding the investigation and findings related to a March 10, 2020 choir practice that resulted in an outbreak of COVID-19 with a high secondary attack rate. Leigh Hamner, MPH, et al., CDC Morbidity and Mortality Weekly Report (MMWR), High SARS-CoV-2 Attack Rate Following Exposure at a Choir Practice – Skagit County, Washington, March, 2020 (Early Release/Vol. 69, May 12, 2020), available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6.htm (last visited July 12, 2020).
West Virginia has reported at least five outbreaks of COVID-19 that are traced to church services, including 17 cases tied to the Greenbrier County church. See https://dhhr.wv.gov/News/2020/Pages/COVID-19Outbreak-Confirmed-in-Greenbrier-County-Church.aspx (last visited July 12, 2020). At least 51 cases and three deaths have been tied to a church immediately after in-person service resumed at Graystone Baptist Church in Ronceverte, West Virginia. Kate Conger, Churches emerge as Major Source of Coronavirus Cases, New York Times, July 12, 2020, available at https://www.nytimes.com/2020/07/08/us/coronavirus-churches-outbreaks.html (last visited July 12, 2020). A rural county in Oregon with only six cases early in the pandemic now has over 356 cases, many of which were traced to church resumed services at Lighthouse United Pentecostal Church. Id.
In Kentucky, an outbreak of 18 cases of COVID-19 occurred at a central Kentucky church that began holding in-person services on May 13, 2020, prompting the church to halt in-person services. Billy Kolbin, Kentucky pastor spars with Beshear after 18 church members test positive, The Courtier-Journal, June 9, 2020, available at https://www.courier-journal.com/story/news/local/2020/06/09/coronavirus-kentucky-17-clays-mill-baptist-churchmembers-infected/3164299001/ (last visited July 12, 2020); 14 Alex Acquisto, This Central Kentucky church reopened on May 10 and became a Covid-19 hot spot, Lexington Herald-Leader, June 5, 2020 (last visited July 12, 2020).
15 KY COVID-19 Daily Summary 7/11/2020, Kentucky Department for Public Health, available at https://chfs.ky.gov/agencies/dph/covid19/COVID19DailyReport.pdf (last visited July 11, 2020). See Gov. Beshear Provides Update on COVID-19, July 11, 2020, available at https://kentucky.gov/Pages/Activitystream.aspx?n=GovernorBeshear&prId=256 (last visited July 11, 2020). 16 See Gov. Beshear Provides Update on COVID-19, July 11, 2020, available at https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=256 (last visited July 11, 2020); Gov. Beshear: Face Coverings Protect Our Families, Economy, July 10, 2020, available at https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=254 (last visited July 10, 2020). 17 Gov. Beshear Provides Updates on COVID-19, July 12, 2020, available at https://kentucky.gov/Pages/Activitystream.aspx?n=GovernorBeshear&prId=257 (last visited July 12, 2020); Gov. Beshear Provides Updates on COVID-19, July 8, 2020, available at https://kentucky.gov/Pages/Activitystream.aspx?n=GovernorBeshear&prId=249 (last visited July 10, 2020); Gov. Beshear: Increasing Cases Requires Kentuckians to Wear Face Masks, July 9, 2020, available at https://kentucky.gov/Pages/Activitystream.aspx?n=GovernorBeshear&prId=251 (last visited July 10, 2020) 18 Id.
4

Case 3:20-cv-00278-DJH-RSE Document 49 Filed 07/13/20 Page 5 of 9 PageID #: 677
II. The Supreme Court Denied Similar Relief. Since the Governor filed his Motion, the Supreme Court has weighed in. On May 29,
2020, the United States Supreme Court refused to enjoin mass gatherings orders – similar to the one here – issued by the Governors in California and Illinois that initially closed church services and were later amended to allow the services to resume at reduced capacity. South Bay, 140 S.Ct. 1613; Elim Romanian Church, et al. v. Pritzker, Gov. of Illinois, 19A1046, 2020 WL 2781671 (Order List 590 U.S.) (U.S. May 29, 2020). In South Bay, Chief Justice Roberts, in a concurring opinion, opined that the mass gatherings order “appear[ed]” to pass First Amendment review because it applied similar restrictions to “lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time,” while treating differently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.” Id., at *2. He further addressed the deference owed to public officials, stating “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” South Bay, 140 S.Ct. at 1613 (quoting Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905).) He further cautioned, that when making these decisions, state officials “should not be subject to secondguessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” Id. at 1613-14 (quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985)).
Plaintiffs’ reliance on the Sixth Circuit’s rulings in Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) and Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) is now misplaced Chief Justice Roberts’ Opinion directly rejects the reasoning in Maryville Baptist
5

Case 3:20-cv-00278-DJH-RSE Document 49 Filed 07/13/20 Page 6 of 9 PageID #: 678
Church v. Beshear and Roberts v. Neace, Consolidated Appeal Nos. 20-5465 and 20-5427, that led the Sixth Circuit to find a likelihood of success with respect to First Amendment challenges to the Mass Gatherings Order. Indeed, both the Petitioners and dissenters in South Bay United cited to these Sixth Circuit Opinions, which the Supreme Court majority has now rejected. In Maryville Baptist, the Sixth Circuit reasoned that the mass gatherings prohibition discriminated against churches because it excepted “life-sustaining” operations such as “law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes and landscaping.” 957 F.3d at 614. But Chief Justice Roberts specifically opined that excluding these services did not run afoul of the First Amendment, because “grocery stores, banks, and laundromats” are “dissimilar activities . . . in which people neither congregate in large groups nor remain in close proximity for extended periods.” South Bay, 140 S.Ct. at 1613.
Since its issuance, the Sixth Circuit has now relied on Justice Roberts’ concurrence to grant an emergency stay of a preliminary injunction issued against the Governor of Michigan’s orders closing fitness centers. League of Ind. Fitness Facilities and Trainers, Inc. v. Whitmer, --F.Supp.3d ----, 2020 WL 3468281 (6th Cir. June 24, 2020). There, the Sixth Circuit recognized that “All agree that the police power retained by the states empowers state officials to address pandemics such as COVID-19 largely without interference from the courts. Id. (citing Jacobson, 197 U.S. at 29).19 With this guidance from the Supreme Court and the Sixth Circuit’s adoption of
19 Since its issuance, courts continue to rely on South Bay United to uphold or deny enjoining state action in response to COVID-19. See e.g., Texas Democratic Party v. Abbott, --- F.3d ---, 2020 WL 2982937 (5th Cir. June 4, 2020); Talleywhacker, Inc. v. Cooper, --- F.Supp.3d ---, 2020 WL 3051207 (E.D.N.C. June 8, 2020); Elkhorn Baptist Church v. Brown, --- P.3d ---, 2020 WL 3116543 (Or. 2020); Christian Cathedral v. Pan, 2020 WL 3078072 (N.D.Cal. June 10, 2020); Professional Beauty Fed. of California v. Newsom, 2020 WL 3056126 (C.D.Cal. June 8, 2020); Altman v. County of Santa Clara, --- F.Supp.3d ----, 2020 WL 2850291 (N.D.Cal June 2, 2020); Calvary Chapel Lone Mountain v. Sisolak, --- F.Supp.3d ----, 2020 WL 3108716 (D.Nev. June 11, 2020) (appeal filed, June 30, 2020, 9th Cir. No. 20-16274); High Plains Harvest Church v. Polis, 2020 WL 3263902 (D.Colo. June 16, 2020). On July 4, 2020, Justice Kavanaugh entered an order declining to enjoin Illinois Governor Pritzker’s ban on political events of 50 or more people, further confirming that South Bay United is the settled law of the land. Order, Illinois Republican Party v. Pritzker, 19A1068 (July 4, 2020).
6

Case 3:20-cv-00278-DJH-RSE Document 49 Filed 07/13/20 Page 7 of 9 PageID #: 679
that reasoning, this Court should also apply South Bay and the reasoning set forth in the majority of circuits to find Plaintiffs have not stated a claim upon which this Court may grant relief. See Elim Romanian Pentecostal Church v. Pritzker, --- F.Supp.3d ----, 2020 WL 2468194, at *4 (N.D. Ill. May 13, 2020) (finding Plaintiffs had less than a negligible likelihood of success on the free exercise claims because the mass gatherings order was neutral and of general applicability); See Elim Romanian Pentecostal Church v. Pritzker, --- F. Supp. ----, 2020 WL 3249062 (7th Cir. 2020); Calvary Chapel Lone Mountain v. Sisolak, --- F.Supp.3d ----, 2020 WL 3108716 (D.Nev. June 11, 2020). III. Plaintiffs’ Claims Are Moot.
At the time of filing the First Amended Complaint, the Governor had just begun issuing Healthy at Work guidance that allowed for the reopening of services throughout the state. On May 9, 2020, places of worship were allowed to hold in-person services, but were advised that they should limit attendance to 33% capacity in order to allow for effective social distancing. On June 10, 2020, that capacity increased to 50%.20 Because the challenged order no longer applies to places of worship, Plaintiffs’ claims are moot.
Plaintiffs’ argument regarding voluntary cessation and capable of repetition exceptions to mootness do not apply. This is because, “a governmental entity—consisting of public servants instead of self-interested private parties—has a less laborious undertaking in pursuit of mootness. Speech First, Inc. v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019). “[A] governmental entity that voluntary ceases allegedly illegal conduct is entitled to a good-faith presumption that the conduct is “unlikely to recur,” Id. at 767–68. Applying this reasoning, Plaintiffs’ argument has already
20 Available at https://govsite-assets.s3.amazonaws.com/r00brFxTl2TJkofBUZUh_Healthy %20at%20Work%20Reqs%20-%20Places%20of%20Worship%20-%20Final%20Version%202.0%20Final.pdf (last visited July 12, 2020).
7

Case 3:20-cv-00278-DJH-RSE Document 49 Filed 07/13/20 Page 8 of 9 PageID #: 680
been rejected by a Kentucky District Court on similar issues. In WO v. Beshear, No. 3:20-cv00023, Doc. 43 (E.D.Ky May 21, 2020), the District Court denied the Attorney General’s motion to intervene on grounds that claims against the Governor’s restrictions on interstate travel were mooted by the Governor’s amendment to those restrictions. The Court held that while the Governor’s orders were subject to numerous constitutional challenges and the Governor amended those orders to address the constitutional challenges, it was not likely that the conduct was to reoccur. Id. at 4.
For similar reasons, the District Court also held that the executive orders were also not capable of repetition, yet evading review. Id. The exception applies if “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Spencer v. Kemna, 523 U.S. 1, 17 (1998). For the reasons set forth above, there is no reasonable expectation that Plaintiffs will be subject to the same action again. But even if similar restrictions were imposed, Plaintiffs could challenge those orders in the same manner they did here. IV. Plaintiffs’ Unclean Hands Bar Injunctive Relief.
As set forth in the Motion, Plaintiffs have unclean hands, because they have not only violated the mass gatherings order and guidelines while their motions for temporary relief were pending; they have also violated this Court’s Orders, which require social distancing. Those facts are indisputable, as the video posted by Maryville Baptist Church shows.
In their response, Plaintiffs raise questions about that argument, all of which are beside the point. The video speaks for itself; Plaintiff Maryville Baptist Church posted the video, and Plaintiffs do not challenge its authenticity. Plaintiffs cannot refute that it shows instances of violations of the social distancing requirements. Plaintiffs’ unclean hands bar injunctive relief.
8

Case 3:20-cv-00278-DJH-RSE Document 49 Filed 07/13/20 Page 9 of 9 PageID #: 681
Conclusion For these additional reasons, Plaintiffs’ claims should be dismissed.
Respectfully submitted, /s/ Taylor Payne La Tasha Buckner General Counsel S. Travis Mayo Chief Deputy General Counsel Taylor Payne Deputy General Counsel Laura Tipton Deputy General Counsel Marc Farris Deputy General Counsel Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 (502) 564-2611 LaTasha.Buckner@ky.gov travis.mayo@ky.gov taylor.payne@ky.gov laurac.tipton@ky.gov marc.farris@ky.gov Counsel for Governor Andy Beshear CERTIFICATE OF SERVICE I hereby certify that on July 13, 2020, I electronically filed the foregoing Reply via the Court’s CM/ECF system, causing counsel of record to be served. /s/ Taylor Payne Taylor Payne
9

 
 Case 3:20-cv-00278-DJH-RSE Document 50 Filed 07/20/20 Page 1 of 11 PageID #: 682

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MARYVILLE BAPTIST CHURCH, INC., )

and DR. JACK ROBERTS,

)

)

Plaintiffs,

)

)

v.

)

)

ANDY BESHEAR, in his official capacity as )

Governor of the Commonwealth of Kentucky, )

)

Defendant.

)

CASE NO. 3:20-cv-00278-DJH

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISSOLVE PRELIMINARY INJUNCTION AND INJUNCTION PENDING APPEAL
Pursuant to W.D. Ky. L.R. 7.1, Plaintiffs, MARYVILLE BAPTIST CHURCH, INC. (“Maryville Baptist” or the “Church”) and DR. JACK ROBERTS (“Dr. Roberts”), by and through the undersigned counsel, hereby submit their response in opposition to Defendant’s Motion to Dissolve the Preliminary Injunction and Injunction Pending Appeal (D.N. 46, the “Motion”) and Memorandum in Support (D.N. 46-1, the “Memorandum”). For the following reasons, this Court should deny the Motion.
INTRODUCTION Numerous courts have enjoined enforcement of Governor Beshear’s overreaching COVID19 orders, including this Court, and including the Sixth Circuit, twice, as applied to Plaintiffs’ church. The Sixth Circuit continues to have jurisdiction over the question of whether Plaintiffs are entitled to a preliminary injunction (PI) against enforcement of the Governor’s orders, and has entered an injunction pending appeal both in this case and in another case brought by congregants of Plaintiffs’ church. See Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020). The Governor now asks this Court to disregard

Case 3:20-cv-00278-DJH-RSE Document 50 Filed 07/20/20 Page 2 of 11 PageID #: 683
the Sixth Circuit’s jurisdiction over the PI question, and to dissolve an IPA already superseded by the Sixth Circuit’s IPA, based on the lone, non-binding concurrence of a single Supreme Court Justice—in another case, concerning another governor’s orders, and in a fundamentally different procedural posture. See South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring in denial of extraordinary writ of injunction). The Governor disingenuously and repeatedly cites the Chief Justice’s South Bay concurrence as if it is the opinion of the Court, but there is no South Bay majority opinion to bind this Court, and the concurrence does not even provide useful guidance to this Court on the issues it can actually address in the Governor’s Motion. This Court cannot give the Governor the relief he wants, and should deny the Motion.1

1

The Governor also asserts the Chief Justice’s South Bay concurrence as grounds for

dismissal of Plaintiffs’ claims (Mem. 6–7), as he also did in his reply memorandum in support of

his motion to dismiss (D.N. 49, “MTD Reply” at 5–7). Not only does the lone, non-binding

concurrence provide no basis for dismissal under Rule 12(b)(6) (especially as against the Sixth

Circuit’s binding opinions), but the Governor also improperly used his MTD Reply to foul the

proceeding with substantial non-record “facts” (MTD Reply 2–4) which cannot be properly

considered on a motion to dismiss. See, e.g., Trustees of Detroit Carpenters Fringe Benefit Funds

v. Patrie Const. Co., 618 Fed. App’x 246, 255 (6th Cir. 2015) (“In considering a Rule 12(b)(6)

motion, a district court cannot consider matters beyond the complaint.”) While the Governor’s

newfound commitment to the Chief Justice’s broad federalism observations is commendable

(Mem. 6–7), the Governor’s arguments are uninformed by principles of jurisprudence, Article III

of the Constitution, or the Rules of Civil Procedure.

2

Case 3:20-cv-00278-DJH-RSE Document 50 Filed 07/20/20 Page 3 of 11 PageID #: 684
ARGUMENT THIS COURT DOES NOT HAVE JURISDICTION TO ENTERTAIN DEFENDANT’S MOTION OR GRANT THE REQUESTED RELIEF.
This Court Was Divested of Jurisdiction to Consider All Matters Pertaining to Plaintiffs’ Entitlement to a Preliminary Injunction When Plaintiffs Noticed Their Appeal from This Court’s Denial. Binding Supreme Court and Sixth Circuit precedent holds this Court was divested of jurisdiction to decide all matters pertaining to Plaintiffs’ entitlement to a PI against enforcement of the Governor’s orders the moment Plaintiffs’ noticed their appeal from this Court’s Order (D.N. 9, the “TRO/PI Order”) denying Plaintiffs’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction (D.N. 3, Plaintiffs’ “TRO/PI Motion”). “The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (emphasis added); Marrese v. Am. Acad. Of Orthopedic Surgeons, 470 U.S. 373, 379 (1985) (same); Taylor v. KeyCorp, 680 F.3d 609, 616 (6th Cir. 2012) (same); see also Manrique v. United States, 137 S. Ct. 1266, 1271 (2017) (“Filing a notice of appeal transfers adjudicatory authority from the district court to the court of appeals.”). The jurisdictional rule has equal application to PI appeals because “an effective notice of appeal divests the district court of jurisdiction over the matter forming the basis for the appeal.” N.L.R.B. v. Cinn. Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987) (emphasis added); Zundel v. Holder, 687 F.3d 271, 282 (6th Cir. 2012) (same). While such interlocutory appeals permit a district court to proceed to the merits of an action, Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1174 (6th Cir. 1995), the jurisdictional retention in the district court is limited to “deciding other issues,” Weaver v. City of Cincinnati, 970 F.2d 1523, 1528–29 (6th Cir. 1992) (emphasis
3

Case 3:20-cv-00278-DJH-RSE Document 50 Filed 07/20/20 Page 4 of 11 PageID #: 685

added), and the retention is “narrowly defined, and does not include actions that alter the case on appeal.” United States v. Carman, 933 F.3d 614, 617 (6th Cir. 2019) (cleaned up).
Here, this Court denied Plaintiffs’ TRO/PI Motion on April 18. Though the Court indicated the denial was only of Plaintiffs’ requested temporary restraining order (TRO), Plaintiffs appealed the denial on April 24 (D.N. 16) as an effective denial of their requested PI. The Sixth Circuit agreed that this Court’s TRO/PI Order effectively denied the PI, and that the appellate court had acquired jurisdiction of the matter on that basis. Maryville Baptist, 957 F.3d at 612. Thus, when Plaintiffs noticed their appeal to the Sixth Circuit on April 24, this Court was divested of jurisdiction over all matters pertaining to its TRO/PI Order, including the key issue: whether Plaintiffs are entitled to a PI against enforcement of the Governor’s orders.
Defendants’ Motion Requests That This Court Grant Relief It Has No Jurisdiction to Consider. The injunction(s) the Governor asks this Court to dissolve (D.N. 35, the “IPA/PI Order”), came only after the Sixth Circuit concluded Plaintiffs’ were likely to succeed on their First Amendment and KRFRA claims, granted an IPA as to drive-in worship services, and remanded the case to this Court to determine Plaintiffs’ entitlement to an IPA as to in-person worship services based on the balancing of all IPA/PI factors. Maryville Baptist, 957 F.3d at 612, 615–16. Based on the scope of the remand and applying the Sixth Circuit’s now-binding legal conclusions and reasoning in Maryville Baptist, this Court granted the IPA as to in-person worship services, and purported to grant the PI Plaintiffs requested in their original TRO/PI Motion because “the same issues are raised.”2 (IPA/PI Order at 6). Then the Sixth Circuit entered its Roberts IPA,

2

Given that the Sixth Circuit has not relinquished its jurisdiction over Plaintiffs’ appeal from

this Court’s original denial of their TRO/PI Motion, Plaintiffs have taken the position in the Sixth

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acknowledging this Court’s IPA/PI Order and enjoining enforcement of the Governor’s orders as to in-person worship services at Plaintiffs’ church. 958 F.3d at 412, 416. After Roberts, this Court advised, “To the extent there are differences between this Court’s [IPA/PI Order] and the [Roberts IPA], the latter would prevail.” (Order (May 13, 2020), D.N. 41, at 2). Thus, the Sixth Circuit acquired, exercised, and retains complete jurisdiction over the operative injunctions prohibiting the Governor’s enforcement of his orders against worship services at Plaintiffs’ church, and this Court has no jurisdiction to dissolve them.
The Court should reject the Governor’s argument that the Court retains jurisdiction to dissolve the subject injunctions (Mem. 2.) The Governor cites Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402 (6th Cir. 2012), for the unremarkable proposition that a district court retains jurisdiction to modify or dissolve its injunctions based on changed law or circumstances. (Mem. 2). In Gooch, however, the defendants did not ask the district court to dissolve an injunction that was already on appeal. Rather, the defendants appealed the district court’s denial of their motion to dissolve, and the Sixth Circuit held it did not have jurisdiction over the appeal because the defendants had not even sought dissolution properly in the district court. 672 F.3d at 414. Thus, Gooch is inapposite.
This Court Cannot Overrule the Sixth Circuit’s Two Binding IPA Decisions Concerning the Governor’s Orders. Even if this Court had jurisdiction over the PI and IPA questions the Governor attempts to raise, the relief the Governor seeks would be of no consequence whatsoever. As the Governor
Circuit that this Court had no jurisdiction to grant Plaintiffs’ TRO/PI Motion on remand, and that this Court’s PI ruling in the IPA/PI Order may be given effect only as an “indicative ruling” under Fed. R. Civ. P. 62.1 and Fed. R. App. P. 12, even though Plaintiffs did not request an indicative ruling under those rules. See United States v. Maldonado-Rios, 790 F.3d 62, 65 (1st Cir. 2015). In this respect, there is no PI for this court to dissolve.
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concedes (Mem. 2), the Sixth Circuit already issued IPAs in Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir. 2020), and Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), both enjoining the Governor from enforcing his unconstitutional restrictions on religious worship services at Plaintiffs’ church during the pendency of those appeals. Thus, regardless of any action this Court might take with respect to its IPA/PI Order, the Sixth Circuit’s IPAs in Maryville Baptist and Roberts would remain in place.3
TWO SIXTH CIRCUIT DECISIONS ENJOINING THE GOVERNOR’S ORDERS AT PLAINTIFFS’ CHURCH ARE BINDING ON THIS COURT; ONE SUPREME COURT JUSTICE’S CONCURRENCE IN ANOTHER CASE ABOUT ANOTHER CHURCH IS NOT.
The Sixth Circuit’s Decision in Maryville Baptist Is the Law of the Case, and This Court Is Bound by It. The Court must reject the Governor’s specious assertion that Maryville Baptist and Roberts are “are no longer good law, and therefore Plaintiffs no longer have any likelihood of success on the merits.” (Mem. 2.) The Governor is wrong as a matter of law. The Sixth Circuit held Plaintiffs are likely to succeed on the merits of their First Amendment and KRFRA claims against the Governor’s orders in Maryville Baptist. 957 F.3d at 612, 615–16. Having been established by the Sixth Circuit, Plaintiffs’ likelihood of success is binding on this Court as the law of the case, and this Court is prohibited from revisiting it. “The law of the case doctrine and the mandate rule generally preclude a lower court from reconsidering an issue expressly or impliedly decided by a superior court.” United States v. Moored, 38 F.3d

3

The Roberts appeal was consolidated with the Maryville Baptist appeal in this case for

purposes of the Sixth Circuit’s IPA decisions. In the unlikely event the Roberts appeal is concluded

before the Maryville Baptist appeal, then the Roberts IPA theoretically would be of no further

effect, leaving this Court’s IPA/PI Order as the effective IPA for the remaining pendency of

Plaintiffs’ appeal. Even then, however, the legal conclusions and reasoning of the Roberts IPA

would still be binding on this Court (see infra Part II.B), and this Court could not depart from them

to dissolve the IPA/PI Order.

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Case 3:20-cv-00278-DJH-RSE Document 50 Filed 07/20/20 Page 7 of 11 PageID #: 688
1419, 1421 (6th Cir. 1994) (emphasis added). “‘[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’” Pepper v. United States, 562 U.S. 476, 506 (2011) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). In the context of a PI, the Sixth Circuit’s opinion that a plaintiff is likely to prevail on the merits “becomes the law of the case.” Howe v. City of Akron, 801 F.3d 718, 740 (6th Cir. 2015).
Thus, because the Sixth Circuit has already held Plaintiffs likely to succeed in their First Amendment challenges to the Governor’s orders, this Court is precluded from revisiting the question because Maryville Baptist is the law of the case. Thus, this Court is not empowered to revisit, dissolve, modify, or amend an order (currently on appeal) based on a different analysis of the merits of Plaintiffs’ claims.
The Sixth Circuit’s Decision in Roberts Is Also Binding on This Court. Roberts is binding on this Court because this court must follow the rulings of the Sixth Circuit. See, e.g., United States v. Matos, No. 3:13CCR-98-S, 2014 WL 1922866, at *3 (W.D. Ky. May 14, 2014) (“A district court is bound to follow the holding of a prior decision of the Court of Appeals for the circuit in which the district court is located until that binding precedent is expressly overruled.” (cleaned up)); Wheeler v. Graves Cnty., No. 5:17-cv-38-TBR, 2019 WL 1320506, *7 (W.D. Ky. Mar. 22, 2019) (“District courts are bound by the decisions of their corresponding circuit courts even if decisions from other circuits seem more persuasive or appealing.”). This Court cannot disregard Roberts (or Maryville Baptist, see supra) to revisit Plaintiffs’ likelihood of success on their challenges to the Governor’s orders.
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Case 3:20-cv-00278-DJH-RSE Document 50 Filed 07/20/20 Page 8 of 11 PageID #: 689
The Lone Concurrence of a Single Supreme Court Justice Considering Different Relief in a Different Case Is Neither Binding on This Court nor Helpful to It. The lone, non-binding concurrence of Chief Justice Roberts in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), provides no support for the Governor’s assertion that Maryville Baptist and Roberts “are no longer good law.” (Mem. 2.) In South Bay the Court denied a petition for an emergency, interlocutory writ of injunction, which requires a petition to meet a much higher standard than a PI or IPA requires. The Court did not issue an opinion, noting only that four Justices would have granted the injunction. 140 S. Ct. 1613. Such denials of extraordinary writs are never binding on lower courts, and neither are lone concurrences of a single justice. Thus, the South Bay decision is neither binding on this Court nor helpful to it. Chief Justice Roberts’ concurrence—joined by no other justices—focused primarily on the extremely high bar an applicant must reach to obtain emergency, interlocutory injunctive relief from the Supreme Court, noting “[t]his power is used where ‘the legal rights at issue are indisputably clear’ and, even then, ‘sparingly and only in the most critical and exigent circumstances.’” Id. at 1613. See also Respect Maine PAC v. McKee, 562 U.S. 996 (2010); Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm’n, 479 U.S. 1312, 1312 (1986) (Scalia, J., in chambers); Fisherman v. Schaffer, 429 U.S. 1325, 1326 (1976) (Marshall, J., in chambers)). Communist Party of Indiana v. Whitcomb, 4099 U.S. 1235 (1972) (Rehnquist, J., in chambers). It was only based on this exceedingly high standard that the Chief Justice (by himself) opined that the requested writ of injunction should be denied. Thus, the Chief Justice’s observations are not helpful to this Court, where Plaintiffs’ entitlement to injunctive relief requires only a likelihood of success, and that question has already been resolved in Plaintiffs’ favor. (See supra Part I.)
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Case 3:20-cv-00278-DJH-RSE Document 50 Filed 07/20/20 Page 9 of 11 PageID #: 690
In any event, the Supreme Court’s decision denying an extraordinary writ of injunction is never binding on a lower court. See, e.g., Barefoot v. Estelle, 463 U.S. 880, 907 n.5 (1983) (Marshall, J., dissenting) (“Denials of certiorari never have precedential value, and the denial of a stay can have no precedential value either . . . .” (emphasis added) (citations omitted)); South Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (noting writ of injunction pending appeal “demands a significantly higher justification than a request for a stay”); Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, 571 U.S. 1171 (2014) (advising grant of writ of injunction pending appeal “should not be construed as an expression of the Court’s views on the merits”).
Nor is the lone concurrence of a single justice ever binding. See Maryland v. Wilson, 519 U.S. 408, 412–13 (1997) (“[T]he former statement was dictum, and the latter was contained in a concurrence, so . . . neither constitutes binding precedent.”). The rationale for this rule is simple: concurring opinions are not the opinions of the Court. “Divergent and contradictory reasons often operate as to the same petition and lead to a common vote of denial.” Darr v. Burford, 339 U.S. 200, 227 (1950) (Frankfurter, J., dissenting); see also Weber v. Dell, 630 F. Supp. 255, 260 n.4 (W.D.N.Y. 1986) (“[C]ertainly the opinion of only one Supreme Court Justice on an application for stay is not binding precedent.”), rev’d on other grounds, Weber v. Dell, 804 F.2d 796 (2d Cir. 1986).
This Court should not countenance the Governor’s disingenuous and repeated citation of the Chief Justice’s South Bay concurrence as if it is the opinion of the Court. (See, e.g., Mem. 1 (“The Supreme Court has issued intervening law . . . .”), 3 (“The Supreme Court upheld the denial of the same injunctive relief Plaintiffs sought here because . . . .”), 4 (“In particular, the Supreme Court held . . . .”), 4 (“[T]he South Bay United Opinion explained . . . .”), 5 (“But the Supreme
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Case 3:20-cv-00278-DJH-RSE Document 50 Filed 07/20/20 Page 10 of 11 PageID #: 691
Court, in a published opinion, has now explicitly spoken to the Sixth Circuit’s reasoning . . . .”), 5 (“The majority thus rejected the reasoning of the Sixth Circuit . . . .”), 7 (“This intervening law by the Supreme Court makes clear . . . .”).) The Governor’s misrepresentation of South Bay is stunning and betrays an utter lack of grounds for the relief he seeks.
CONCLUSION For all of the foregoing reasons, the Governor’s Motion must be denied.
Respectfully submitted,
/s/ Daniel J. Schmid Mathew D. Staver* Horatio G. Mihet* Roger K. Gannam* Daniel J. Schmid* LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 Phone: (407) 875-1776 Facsimile: (407) 875-0770 Email: court@lc.org
hmihet@lc.org rgannam@lc.org dschmid@lc.org Attorneys for Plaintiffs *Admitted pro hac vice
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Case 3:20-cv-00278-DJH-RSE Document 50 Filed 07/20/20 Page 11 of 11 PageID #: 692 CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of July, 2020, I caused a true and correct copy of the foregoing to be electronically filed with this Court. Service will be effectuated on all counsel of record via this Court’s ECF/electronic notification system.
/s/ Daniel J. Schmid Daniel J. Schmid
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 No. 20-5427 In the United States Court of Appeals for the Sixth Circuit
MARYVILLE BAPTIST CHURCH, et al.,
Plaintiffs-Appellants v.
ANDY BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY,
Defendant-Appellee _________________________
On Appeal from the U.S. District Court, Western District of Kentucky No. 3:20-cv-00278
BRIEF OF THE COMMONWEALTH OF KENTUCKY AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

Daniel Cameron Attorney General
Barry L. Dunn Deputy Attorney General
Office of the Kentucky Attorney General 700 Capital Avenue, Suite 118 Frankfort, KY 40601 502-696-5300 Brett.Nolan@ky.gov

S. Chad Meredith Solicitor General
Matthew F. Kuhn Deputy Solicitor General
Brett R. Nolan Special Litigation Counsel

Counsel for Amicus Curiae

TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................... 2 INTEREST OF AMICUS CURIAE...........................................................4 SUMMARY OF ARGUMENT ................................................................... 5 ARGUMENT ............................................................................................. 6
I. The selective ban on mass gatherings unlawfully discriminates against religious activity................................................................8
II. The ban on religious activity is not narrowly tailored. ............... 25 CONCLUSION ........................................................................................ 26 CERTIFICATE OF SERVICE.................................................................27 CERTIFICATE OF COMPLIANCE........................................................28
1

Cases

TABLE OF AUTHORITIES

Cantwell v. Connecticut, 310 U.S. 296 (1940)...........................................7

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ...................................................................................................... 8

Commonwealth of Kentucky ex rel. Beshear v. Commonwealth of Kentucky Office of the Governor ex rel. Bevin, 498 S.W.3d 355 (Ky. 2016) ........... 4

Elim Romanian Pentecostal Church v. Pritzker, --- F.3d --- , 2020 WL 3249062 (7th Cir. 2020) ........................................................................ 23

Espinoza v. Montana Dep’t of Revenue, --- U.S. --- , 2020 WL 3518364 (2020) .................................................................................................... 22

Gaddis ex rel. Gaddis v. Redford Tp., 364 F.3d 763 (6th Cir. 2004) ...... 19

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ........................................ 7
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) ............................................................................................... 7, 14, 22, 24
On Fire Christian Ctr., Inc. v. Fischer, --- F. Supp. 3d. --- , 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020) .......................................................... 5

Respect Maine PAC v. McKee, 562 U.S. 996 (2010) (mem.)....................19

Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020)............................... passim

South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (mem.) ................................................................................................... 18

Teague v. Lane, 489 U.S. 288 (1989).......................................................19

Tree of Life Christian Schools v. City of Upper Arlington, 905 F.3d 357 (6th Cir. 2018).........................................................................................4

2

Trinity Lutheran Church of Columbia, Inc. v. Comer, --- U.S. --- , 137 S. Ct. 2012 (2017)........................................................................................7
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ................... 24 Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) .................................... 14, 15 Statutes Ky. Rev. Stat. 15.020 ................................................................................. 4 Other Authorities Chris Kenning, Coronavirus roundup: It’s church vs. state in an Easter
Sunday showdown as deaths rise, The Courier Journal (Apr. 12, 2020), available at https://www.courierjournal.com/story/news/local/2020/04/12/coronavirus-update-defianteaster-services-more-covid-19-deaths/2978274001/ (last visited July 7, 2020)...................................................................................................... 20 Josh Blackman, Judge Easterbrook admits what was implicit in Chief Justice Roberts’ South Bay Decision, The Volokh Conspiracy (June 17, 2020), available at https://reason.com/2020/06/17/judge-easterbrookadmits-what-was-implicit-in-chief-justice-roberts-south-bay-decision/ (last visited July 7, 2020) ..................................................................... 24 Rules 6 Cir. R. 32.1(b) ....................................................................................... 19 Fed. R. App. P. 29(a)(2) ............................................................................. 4
3

INTEREST OF AMICUS CURIAE1 Kentucky law vests Attorney General Daniel Cameron with the authority to represent the Commonwealth of Kentucky in any case “in which the Commonwealth has an interest.” Ky. Rev. Stat. 15.020. The Attorney General is the lawyer for the people of the Commonwealth. Under Kentucky law, he has not merely the authority, but the duty, to take action in cases where the people’s legal or constitutional interests are threatened. See Commonwealth of Kentucky ex rel. Beshear v. Commonwealth of Kentucky Office of the Governor ex rel. Bevin, 498 S.W.3d 355, 362 (Ky. 2016). This is one of those cases. The freedom to practice one’s faith is a defining feature of American liberty. “Since the founding of this nation, religious groups have been able to ‘sit in safety under [their] own vine and figtree, [with] none to make [them] afraid.’” Tree of Life Christian Schools v. City of Upper Arlington, 905 F.3d 357, 376 (6th Cir. 2018) (Thapar, J., dissenting) (quoting Letter from George Washington to Hebrew Congregation in Newport, R.I. (Aug. 18, 1790)). This is the promise
1 As the chief law officer of the Commonwealth, the Attorney General may file this brief without the consent of the parties or leave of the Court. See Fed. R. App. P. 29(a)(2).
4

of America. It is one of the Nation’s “most audacious guarantees.” On Fire Christian Ctr., Inc. v. Fischer, --- F. Supp. 3d. --- , 2020 WL 1820249, at *3 (W.D. Ky. Apr. 11, 2020).
But in the wake of executive orders shutting down in-person worship services in Kentucky in response to Covid-19, this guarantee is on shaky ground. Kentucky Governor Andy Beshear used his pen to close houses of worship across the Commonwealth while allowing similar secular activities to continue uninterrupted. Pandemic or not, the Constitution prohibits public officials from targeting religious exercise in this manner. As the attorney for the people of the Commonwealth, Attorney General Cameron submits this brief in support of the Appellants’ request for a preliminary injunction preventing further religious discrimination.
SUMMARY OF ARGUMENT In response to the Covid-19 pandemic, Governor Beshear issued a series of executive orders that effectively prohibited in-person religious services across the Commonwealth. These orders were necessary, the Governor explained, to prevent further spread of Covid-19—a highly contagious and sometimes-fatal disease. Despite that, Governor Beshear included numerous carve-outs for secular activities posing the same or
5

greater risks. What looked like a generally applicable law at first blush turned out to be an exception-riddled policy that left the faithful alone to bear its burdens. This kind of discrimination against the free exercise of religion cannot be permitted.
Governor Beshear’s executive orders violate the Free Exercise Clause because they discriminatorily impose significant burdens on the right to worship without the kind of narrow tailoring necessary to survive strict scrutiny. The Constitution does not allow the Governor to ban gatherings in sanctuaries while allowing gatherings in offices. He cannot outlaw in-person worship while hosting his own in-person press conferences. These “hallmarks of discrimination” undermine the core principles of the First Amendment. This Court must reverse the district court and enjoin the Governor from enforcing or re-imposing his unlawful orders.
ARGUMENT On March 19, 2020, Governor Andy Beshear outlawed all in-person religious services throughout the Commonwealth of Kentucky. Two weeks later, he ordered the Kentucky State Police to the grounds of a small Baptist church to issue notices of violation against any person attending worship on Easter Sunday. That all came to an end, though,
6

when this Court, on sequential Saturdays, twice held that Governor Beshear’s ban on religious gatherings likely violated the Free Exercise Clause. See Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 616 (6th Cir. 2020) (per curiam); Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020) (per curiam). And since then, nothing about the merits of this case has changed.
Well, almost nothing. The Governor has persisted in blaming religious services for outbreaks of Covid-19. But, at the same time, he has since celebrated—and even participated in—secular gatherings involving thousands of individuals. What started out as subtle discrimination is now unmistakable. Governor Beshear’s selective ban on religious worship violates the Free Exercise Clause. It is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).
The First Amendment prohibits the government from burdening one’s “free exercise” of religion. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). In doing so, it “protect[s] religious observers against unequal treatment.” Trinity Lutheran Church of Columbia, Inc. v. Comer, --- U.S. --- , 137 S. Ct. 2012, 2019 (2017). That means the government generally
7

cannot discriminate against religious conduct. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993). When it does, strict scrutiny applies. Id. And a law that discriminates against religion “will survive strict scrutiny only in rare cases.” Id. at 546. As this Court already held, this is not such a case. I. The selective ban on mass gatherings unlawfully discrimi-
nates against religious activity. This case originates from two executive orders that Governor Beshear’s administration issued in response to the Covid-19 pandemic. Together, these two orders banned traditional, in-person religious services throughout every corner of the Commonwealth. After this Court (and a pair of district courts) enjoined the Governor from enforcement, he amended the orders so that they no longer apply to religious gatherings. [See Notice, R. 36-1, PageID#584–85]. But Governor Beshear has left no doubt that he desires to re-impose his ban on in-person religious services if he determines he needs to do so. [See Gov. Mtn. to Dissolve Prelim. Inj., R. 46-1, PageID#666]. So even though these orders are no longer in place,
8

their effect on the religious freedom of Kentuckians remains a critical concern.2
A. The first order, issued on March 19, prohibits “[a]ll mass gatherings.” [Mar. 19, 2020 Order, R. 1-5, PageID#66]. Under the order, a mass gathering “includes any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” [Id. (emphasis added)]. This is a broad prohibition. It applies to gatherings of any number of people. It applies to gatherings in confined spaces as well as the outdoors. And it applies to gatherings in which people wear masks and remain six feet apart. The text of the order leaves no doubt: all “faithbased” gatherings are illegal.
2 This is why the case is not moot. In recently asking for relief from the district court’s injunction, the Governor argued that “it is essential that Governor Beshear and other state officials be able to respond promptly” and “without second-guessing by the federal courts.” [Id. at PageID#666– 67]. To the extent that the Governor’s new order created doubt as to whether this controversy remains live, his motion in the district court removes it. Governor Beshear has every intention of re-implementing his ban on religious gatherings if he determines that such a need arises.
9

That’s not to say the order has no exceptions. It in fact contains two. First, the order states that “a mass gathering does not include normal operations at airports, bus and train stations, medical facilities, libraries, shopping malls and centers, or other spaces where persons may be in transit.” [Id.]. Second, the order provides that a mass gathering “does not include typical office environments, factories, or retail or grocery stores where large numbers of people are present, but maintain appropriate social distancing.” [Id.]. Religious activities are not included in either group of exemptions.
Several days after prohibiting “mass gatherings,” Governor Beshear issued another executive order closing all businesses and organizations that are not “life-sustaining.” [Mar. 25, 2020 Order, R. 1-7, PageID#73]. The order vaguely defined “Life-Sustaining Businesses” as “all businesses that allow Kentuckians to remain Healthy at Home.” [Id.]. Perhaps because that definition provides little guidance for your everyday Kentuckian, Governor Beshear then listed the kinds of activities and industries allowed to remain open. The list included 19 different categories of businesses and organizations spanning more than 4 pages. [Id. at PageID##73–76].
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What did Governor Beshear consider life-sustaining? “Media,” is one example, which he defined as “[n]ewspapers, television, radio, and other media services.” [Id. at PageID#74]. For months after he declared a state of emergency, the Governor invited reporters into the close quarters of a small conference room in the Capitol to attend his daily press conferences—presumably he considered these gatherings exempt as a “life-sustaining” necessity. Also included in the list of exemptions were law firms, accounting services, laundromats, dry cleaners, liquor stores, and hardware stores. [Id. at PageID##73–75]. Churches, synagogues, or other houses of worship did not make the cut.
The lone reference to religious organizations in the March 25 order allowed for religious charities to continue operating to “provid[e] food, shelter, and social services, and other necessities of life for economically disadvantaged or special populations, individuals who need assistance as a result of this emergency, and people with disabilities.” [Id. at PageID#74]. So while the order did not permit religious organizations to conduct religious services, it did allow them to provide the kinds of services that Governor Beshear pre-approved.
11

Not every state followed the same path as Kentucky. Ohio, a state that implemented early and aggressive social-distancing protocols and shelter-in-place orders, recognized the problem with categorizing some activities as essential but excluding religion from that list.3 As demonstrated in the following excerpt from its March 22 order defining “essential businesses,” Ohio specifically allowed religious gatherings to continue:
Figure 1: Ohio's March 22 order defining essential businesses
3 Ohio’s original March 22 shelter-in-place order is available at https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf (last visited July 7, 2020). Ohio later revised its initial order, but it retained the exemption for religious entities. See Ohio April 2, 2020 Order, available at https://coronavirus.ohio.gov/static/publicorders/Directors-StayAt-Home-Order-Amended-04-02-20.pdf (last visited July 7, 2020). Both orders in Ohio have now expired.
12

Governor Beshear issued his order only three days later. It tracked Ohio’s order with almost identical language, yet for some reason, excluded the accommodation for religious liberty:
Figure 2: Kentucky's March 25 order defining "life-sustaining" businesses
Thus, the template for respecting religious liberty existed before Governor Beshear took action. But he chose a different path—one that discriminated against religion.
Not to be missed, none of the exceptions for life-sustaining organizations imposed a limit on the number of individuals who may congregate together. Nor does the list impose time constraints, even though the Governor has argued that the duration of a gathering bears on the risk of transmission. So under the March 25 Order, for example, any number of attorneys may gather together every day in a conference room for any
13

length of time, but no individuals may attend weekly mass in a large, spacious sanctuary.
The March 19 and March 25 orders imposed a sweeping and discriminatory prohibition against religious activity in Kentucky—one that stretched to every corner of the Commonwealth without regard to the relative risks in each county. Even though the orders broadly allowed individuals in counties with high rates of infection to work in law offices and newsrooms, or to visit hardware stores, liquor stores, laundromats, and grocery stores, they did not permit people to attend religious services at a church, synagogue, mosque, or other house of worship. Not even in Robertson County, where it took almost four months of the pandemic before the county reported its first case.4
B. The Governor’s orders unconstitutionally targeted religious activity. See Maryville Baptist Church, 957 F.3d at 614 (citing Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012)). “Faith-based discrimination can come in many forms.” Roberts, 958 F.3d at 413. Some laws are motivated
4 See Tom Latek, Robertson becomes the last county in state to have case of COVID-19, Times-Tribune (June 30, 2020), available at https://www.thetimestribune.com/news/local_news/robertson-becomeslast-county-in-state-to-have-case-of-covid-19/article_0830cea1-65725267-81b1-0de029d96551.html (last visited July 6, 2020).
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by animus toward religion, while others “single out religious activity alone for regulation.” Id. But one particularly invidious kind of discrimination is the generally applicable law that is “riddled with exemptions.” See Ward, 667 F.3d at 738. “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.” Roberts, 958 F.3d at 413–14 (quoting Ward, 667 F.3d at 740). That is precisely what happened here.
Take the initial ban on mass gatherings. It broadly banned “any event or convening that brings together groups of individuals.” [R. 1-5, PageID#66]. That ban included both religious (e.g., “faith-based”) and secular (e.g., “concerts” and “festivals”) activities. But the order went on to exempt several kinds of gatherings for special treatment—all of which are secular, and many of which pose the same or greater risk of causing the spread Covid-19. [Id.]. People could, for example, gather at airports and libraries, but not at a Christian church or a Hindu temple. They could continue routine operations in “typical office environments,” but
15

must abandon the routine at their local synagogue. The exemptions were plenty. Yet they did not include religious worship.
The second order only magnified this problem. It provided nearly four pages of detailed exemptions for activities that the Governor considered “life-sustaining.” As this Court recognized, every single one was secular in nature: “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 . . . . 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.” Roberts, 958 F.3d at 414.
Governor Beshear inexplicably contends that his orders contained no exemptions at all. [See Gov. Resp., R. 31, PageID#426 (“In fact, the Order does not provide any exemptions at all.”)]. He argues that his first order simply “provides examples of what a ‘mass gathering’ is and what it is not.” [Id. at PageID#426–27]. But as this Court recognized, “that is word play.” Roberts, 958 F.3d at 414. According to his order, a mass gathering is any “convening that brings together groups of individuals.” [R. 1-
16

5, PageID#66]. Yet the order does not include airports, where people convene for travel. It does not include offices, where people convene for work. And it does not include libraries, where people convene for activities like group readings. These are exemptions to the mass-gathering ban, regardless of what the Governor calls them.
The Governor’s argument is even less plausible when applied to the second order. That order shuts down every business in the state that the Governor did not consider “life-sustaining.” [R. 1-7, PageID#73]. No amount of word play can turn the four pages of permissible activity into anything but a detailed set of exemptions from the generally applicable rule—all of which applied only to secular conduct.
Governor Beshear has also argued that his orders did not discriminate against religious activity because the exempted secular activities are not similar to religious worship. This Court sensibly rejected this argument already. See Roberts, 958 F.3d at 414 (“And many of the serial exemptions for secular activities pose comparable public health risks to worship services.”). A trip to the laundromat to wash and dry one’s clothes usually involves sitting in the same room as others for at least as long as a typical Sunday-morning sermon. So long as individuals abide
17

by the same social-distancing and hygiene requirements, what exactly makes sitting in a pew more dangerous than sitting in a chair while one’s laundry dries? Or as the Court put it before: “How are in-person meetings with social distancing any different from in-person church services with social distancing?” Id. at 415.
The exemption for “typical office environments” in the March 19 order gives away the game. [See R. 1-5, PageID#66]. An office ordinarily includes multiple employees working together for seven to eight hours a day, five days a week—often in the same room or conference space. True, some of those individuals might be in cubicles or even separate offices. But the ban on “mass gatherings” does not require that kind of spacing, and it does not prohibit individuals from working together in the same room—as many do. It certainly did not prevent the Governor himself from hosting daily press conferences with reporters in attendance, often for an hour or more each day. How are religious services, which often last no more than a few hours each week, a more dangerous gathering? To this day, the Governor has yet to say.5
5 None of this analysis changes after the single-justice concurrence recently issued in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (mem.) (Roberts, C.J.). South Bay raises similar—though
18

All this should trouble the Court even more in light of Governor
Beshear’s latest attempt at lifting the injunction against his ban on reli-
gious gatherings while he allows all kinds of non-essential activity to re-
sume. Today, dog groomers and hair salons are free to open their doors,
as his March 25 order no longer governs. Yet he has asked the district
court for authority to re-impose his ban on in-person religious services—
just in case. [See R. 46-1, PageID#661–67].
not identical—issues as those presented here. The Supreme Court denied an application by the plaintiffs for an injunction pending the grant of certiorari. As is typical in such circumstances, the Supreme Court did not issue a majority opinion. Chief Justice Roberts, however, penned a concurrence, which no other justice joined, explaining his preliminary conclusion that California’s stay-at-home order did not “indisputably” discriminate against religious activity. Id. at 1613–14. Governor Beshear has argued below that this single-justice concurrence is binding precedent such that this Court’s prior decisions are “no longer good law.” [R. 46-1, PageID#664]. This argument is baseless. A decision to deny an injunction pending the grant of certiorari has no precedential value. See Teague v. Lane, 489 U.S. 288, 296 (1989) (denying certiorari is not precedential); Respect Maine PAC v. McKee, 562 U.S. 996, 996 (2010) (mem.) (explaining the extraordinarily high burden required for obtaining an injunction prior to certiorari at the Supreme Court). This is particularly true for a concurring opinion that did not garner five votes. Because the single-justice concurrence in South Bay is not precedential, this Court must continue to apply its own published decisions. See Gaddis ex rel. Gaddis v. Redford Tp., 364 F.3d 763, 770 (6th Cir. 2004); see also 6 Cir. R. 32.1(b).
19

C. On top of his “exemption-riddled” orders, Governor Beshear has also selectively enforced his ban on mass gatherings. This case first arose after the Governor ordered the Kentucky State Police to Maryville Baptist Church to issue notices of violation against anyone attending worship service on Easter Sunday. [Verf. Compl., R. 1, PageID#11–12]. In his press release on Good Friday, Governor Beshear stated that those “attending [Easter worship] will be notified that it is [a] misdemeanor violation of the emergency orders issued by the Governor.” [Id. at PageID#12]. He also announced that the Kentucky State Police would be collecting license plate numbers and forwarding them to the local health department to enforce a mandatory quarantine. The Governor did this even though he was only aware of seven churches statewide that intended to hold in-person services on Easter Sunday.6
6 See Chris Kenning, Coronavirus roundup: It’s church vs. state in an Easter Sunday showdown as deaths rise, The Courier Journal (Apr. 12, 2020), available at https://www.courier-journal.com/story/news/local/2020/04/12/coronavirus-update-defiant-easter-services-more-covid19-deaths/2978274001/ (last visited July 7, 2020) (“Statewide, the vast majority of churches did avoid in-person services, according to the Kentucky State Police . . . . Beshear said he believed seven churches planned to hold in-person services.”).
20

Contrast the Governor’s reaction to Maryville with his response to the recent protests throughout the Commonwealth over issues of racial justice. These protests certainly ran afoul of the Governor’s ban on mass gatherings, yet he made no similar announcement about the Kentucky State Police recording license plate numbers or implementing mandatory quarantines. In fact, Governor Beshear encouraged the gatherings and even participated in one taking place at the Capitol involving hundreds of individuals:7
7 A copy of the Governor’s post on social media is available at https://twitter.com/GovAndyBeshear/status/1269064159234338816 (last visited July 6, 2020). This is a public record on the official Twitter account of the Governor of Kentucky.
21

Like his “exception-riddled” orders, Governor Beshear’s selective enforcement of the ban on mass gatherings belies his claim of neutrality. The orders are discriminatory as written and as enforced.
D. Make no mistake, this business of comparing secular activities with religious ones to determine whether Kentuckians can freely worship according to their faith is a sordid affair. It is deeply troubling that Governor Beshear has categorically excluded religious worship from his list of “life-sustaining” activities, deeming them non-essential during the Covid-19 pandemic. In doing so, the Governor has elevated activities that sustain life “in the physical sense,” [R. 31, PageID#428], above those that sustain life in the spiritual sense, Maryville Baptist Church, 957 F.3d at 614. One can debate whether that is good policy or not. But “[t]he protections of the Free Exercise Clause do not depend on a ‘judgment-by-judgment analysis’ regarding whether discrimination against religious adherents would somehow serve ill-defined interests.” Espinoza v. Montana Dep’t of Revenue, --- U.S. --- , 2020 WL 3518364, at *10 (2020). It is beyond question, however, that these kinds of value-driven judgments should not come from government officials who are bound by the Constitution. If religious liberty means anything, it must mean that one’s spiritual well-
22

being is essential in every sense of the word, and that no government can
say otherwise.
Comparisons between secular and religious conduct in this context
are inherently—and constitutionally—problematic. That’s because the
question asks whether a particular activity is “essential” (and so may ex-
ist) or “non-essential” (and so may be banned). Governor Beshear drew a
line in the sand with his executive orders: Only businesses that promote
earthly well-being are an essential part of daily life. So religious organi-
zations can operate if they provide some secular benefit. Or they can op-
erate if doing so is no riskier than some other secular activity deemed
essential. But in Governor Beshear’s paradigm, religious worship itself,
for its own sake, is on the wrong side of the line. That is not essential, the
Governor says. And so it is never enough to justify inclusion in his list of
government-approved exemptions.8
8 This kind of value-based line drawing explains the Seventh Circuit’s error in recently dismissing a Free Exercise claim in a similar case. See Elim Romanian Pentecostal Church v. Pritzker, --- F.3d --- , 2020 WL 3249062 (7th Cir. 2020). As here, the plaintiffs argued in Elim that many of the exempt secular activities pose an equal or greater risk of harm than religious services. And the Seventh Circuit actually agreed, admitting that “warehouse workers and people who assist the poor or elderly may be at much the same risk as people who gather for large, in-person religious worship.” Id. at *6. Nevertheless, the court found that the Illinois
23

Surely the First Amendment prohibits the government from mak-
ing these kinds of judgments. “If there is any fixed star in our constitu-
tional constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, [or] religion . . . .” W. Va. State
Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Liquor stores and laun-
dromats might be essential. But more essential than weekly communion
or reciting the Mourner’s Kaddish?9 To even attempt to answer that ques-
tion is troubling, which is why this Court rightly rejected such an inquiry.
See Maryville Baptist Church, 957 F.3d at 615.
stay-at-home order did not discriminate against religion because religious services are more like “movies and concerts”—which are not necessary like “soup kitchens” and “[m]eatpacking plants.” Id. at *5–6. The court, in other words, seemed to base the comparison on its own view of the value of a religious service (more like the entertainment of a movie theater than the necessity of a grocery store), rather than the risks created by the activity. These sorts of judgment calls about the value of religion are precisely what the Free Exercise Clause forbids. 9 See Josh Blackman, Judge Easterbrook admits what was implicit in Chief Justice Roberts’ South Bay Decision, The Volokh Conspiracy (June 17, 2020), available at https://reason.com/2020/06/17/judge-easterbrookadmits-what-was-implicit-in-chief-justice-roberts-south-bay-decision/ (last visited July 7, 2020) (“Governors are making ‘value judgments’ about the importance of religious worship. They have deemed it unimportant. They have decided that ‘Churches can feed the spirit’ over Zoom. We need Amazon Prime, but receiving communion and reciting the mourner’s [Kaddish] aren’t essential.”).
24

II. The ban on religious activity is not narrowly tailored. The Governor’s ban on religious gatherings discriminates against
the free exercise of religion. Can it nevertheless survive strict scrutiny? This Court has already said no, and nothing about this case now compels a different answer.
To be clear, “no one contests that the Governor has a compelling interest in preventing the spread of a novel, highly contagious, sometimes fatal virus.” Roberts, 958 F.3d at 415. “The question is whether the orders amount to ‘the least restrictive means’ of serving these laudable goals.” Id. The Governor’s orders fail to meet such a standard.
The Governor contends that his mass-gathering ban is the leastrestrictive means of combating Covid-19 because mass gatherings are “where the risk of transmission of the disease is highest.” [Gov. Resp., R. 31, PageID#430]. But certainly there are less restrictive means of reaching the same goal. He could, for example, impose limits on the number of people who can congregate in any area based on the square footage. And he could require that every individual “adhere to social-distancing and other health requirements,” whether in a house of worship or outside of
25

it. After all, if social distancing is enough for a law office, it should certainly be enough for worship.
In its prior opinion, this Court zeroed in on the precise problem here: “If the Commonwealth trusts its people to innovate around a crisis in their professional lives, surely it can trust the same people to do the same things in the exercise of their faith.” Roberts, 958 F.3d at 415. The least-restrictive solution for a group of religious worshippers who refuse to follow social-distancing requirements is to enforce those guidelines— not to ban religious worship entirely. After all, if “the same person can be trusted to comply with social-distancing and other health guidelines in secular settings,” why can the government not do the same “in religious settings?” Roberts, 958 F.3d at 414. If the Governor has an answer, he “has not provided one.” Id.
CONCLUSION This Court got this case right the first two times it examined the issues. The Court should reverse the district court’s denial of a preliminary injunction.
26

Respectfully submitted,
/s Brett R. Nolan Daniel Cameron
Attorney General Barry L. Dunn
Deputy Attorney General S. Chad Meredith
Solicitor General Matthew F. Kuhn
Deputy Solicitor General Brett R. Nolan
Special Litigation Counsel OFFICE OF THE KENTUCKY ATTORNEY GENERAL 700 Capital Ave., Suite 118 Frankfort, KY 40601 (502) 696-5300 Brett.Nolan@ky.gov
CERTIFICATE OF SERVICE I certify that on July 7, 2020, I filed the foregoing document through
the Court’s CM/ECF system, which will serve an electronic copy on all
registered counsel of record.
/s Brett R. Nolan Brett R. Nolan Attorney for Amicus Curiae
27

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because the brief contains 4,731 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). 2. This brief complies with the typeface requirements of Fed. R. App. R. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the brief has been prepared in a proportionally spaced typeface using Microsoft Word 14-point Century Schoolbook font.
/s Brett R. Nolan Brett R. Nolan Attorney for Amicus Curiae Dated: July 7, 2020
28

 
 Nos. 20-5427
UNITED STATES COURT OF APPEALS for the SIXTH CIRCUIT
MARYVILLE BAPTIST CHURCH, et al.
Plaintiffs-Appellants
v.
ANDY BESHEAR, in his official capacity as GOVERNOR OF THE COMMONWEALTH OF KENTUCKY,
Defendant-Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY Nos. 3:20-CV-00278
BRIEF OF GOVERNOR ANDY BESHEAR
La Tasha Buckner Travis Mayo Taylor Payne Laura Tipton Marc Farris Office of General Counsel Office of the Governor 700 Capital Avenue, Suite 106 Frankfort, Kentucky 40601 (502) 564-2611 Travis.Mayo@ky.gov Taylor.Payne@ky.gov Counsel for the Governor

TABLE OF CONTENTS
TABLE OF AUTHORITIES…………………………………………………….. iii
STATEMENT CONCERNING ORAL ARGUMENT…………………………..vii
STATEMENT OF THE CASE……………………………………………………1
SUMMARY OF THE ARGUMENT……………………………………………...7
ARGUMENT……………………………………………………………………...9
I. Plaintiff’s Claim Is Moot Because Places of Worship May Now Hold Indoor In-Person Services…………………………………………...10
II. The District Court Did Not Abuse Its Discretion By Denying Plaintiff’s Motion for a Temporary Restraining Order………………………………………….……………………..13
A. The Order meets The Deferential Standard Applied To Public Health Measures By the United States Supreme Court Because It Targets The Spread of COVID-19 And Is Not, Beyond All Question, A Plain, Palpable Violation of Fundamental Rights….14
B. The Order Does Not Violate The Free Exercise Clause Because It Is A Neutral Law of General Applicability………………………22
C. Plaintiffs Claim Under the Kentucky Religious Freedom Restoration Act Is Barred By Sovereign Immunity…………….. 29
D. The Mass Gatherings Order Does Not Violate Plaintiffs’ Free Speech or Assembly Rights Because the Order is a Narrowly Tailored Content-Neutral Time, Place and Manner Restriction…31
E. Plaintiff’s Vagueness Claim is not Properly Before this Court….35
CONCLUSION…………………………………………………………………...36
ii

TABLE OF AUTHORITIES
Cases Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 922 (6th Cir. 2020).......................15
Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001).............................30
Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d 683, 684 (6th Cir. 2004) ........................................................................................................................13
Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012).......10
Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 388 (2011) ...........................35
Calderon v. Moore, 518 U.S. 149, 150 (1996) ........................................................10
Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, et al., 591 U.S. ___ (2020) ................................................................................................ passim
Cantwell v. State of Conn., 310 U.S. 296, 303-04 (1940) (citing Reynolds v. United States, 98 U.S. 145 (1878) ................................................................................. 23-24 Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., Inc., 753 F.2d 1354, 1356 (6th Cir. 1985)........................................................................................... 13-14 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing Smith, 494 U.S. 872) ........................................................................24
Contributor v. City of Brentwood, Tenn., 726 F.3d 861, 865 (6th Cir. 2013).........34 Davis v. Beason, 144 U.S. 33 (1890).......................................................................24 Edelman v. Jordan, 415 U.S. 651, 673 (1977) ........................................................31
Elim Romanian Pentecostal Church v. Pritzker, 19A1046 (Order List 590 U.S.) (U.S. May 29, 2020)......................................................................................... passim
iii

Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263, n. 3 (1982))...............................23
Ernst v. Rising, 427 F.3d 351, 368 (6th Cir. 2005) (citing Pennhurst, 465 U.S. at 106) ..........................................................................................................................30
Ex parte Young, 209 U.S. 123 (1908)......................................................................30 F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)............................. 28-29
Frisby v. Schults, 487 U.S. 474 (1988)……………………………………………33
Givens v. Newsom, --- F.Supp.3d ----, 2020 W 2307224 (E.D.Cal. May 8, 2020)..................................................................................... 32, 35 Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981)..31 Hill v. Colorado, 530 U.S. 703, 719 (2000) ..................................................... 30, 33
Illinois Republican Party v. Pritzer, 19A1068 (U.S. July 4, 2020).........................34 Int’l Soc. for Krishna Consciousness, Inc. v. Evans, 440 F.Supp. 414, 421 (S.D.Oh. August 25, 1977)......................................................................................................35
Jacobson v. Massachusetts, 197 U.S. 11 (1905) ............................................. passim
League of Ind. Fitness Facilities and Trainers, Inc. v. Whitmer, --- Fed. Appx. ----, 2020 WL 3468281 (6th Cir. June 24, 2020) ..................................................... 15, 28 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973) ...................26 Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) .............................................10
Maryville Baptist Church v. Beshear, 957 F.3d 610, 612 (6th Cir. 2020) ...... passim
Michigan Catholic Conference and Catholic Family Serv's. v. Burwell, 755 F.3d 372 (6th Cir. 2014)…….………………………………………………………….24
iv

Miller v. Davis, 123 F. Supp. 3d 924, 938 (E.D. Ky. 2015) (citing Seger v. Ky. High Sch. Athletic Ass’n, 453 Fed. Appx. 630, 634 (6th Cir. 2011) (interpreting Smith, 494 U.S. 872 and Lukumi, 508 U.S. 520))....................................................28 Minersville School Dist. Bd. of Ed. v. Gobitis, 30 U.S. 586, 594-95 (1940)...........24
New Doe Child #1 v. Congress of United States, 891 F.3d 578 (6th Cir. 2018).…24
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984) ..........30 Phelps-Roper v. Strickland, 539 F.3d 356, 361 (6th Cir. 2008) ..............................32 Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) ..........................................23 Ramsek v. Beshear, Doc. 47, Page ID # 742, Case No. 3:20-cv-00036 (E.D.Ky June 24, 2020) ..........................................................................................................25 Respect Main PAC v. McKee, 562 U.S. 996 (2010) ................................................16 Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020) ...................................... passim
Roberts v. Neace, Case No. 2:20-cv-00054 (E.D.Ky. May 4, 2020)……………..27
Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008) .........................33 Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950).......................31 South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613, 1613-14 (Mem.) (2020) ............................................................................................................... passim
South Bay United Pentecostal Church v. Newsom, 959 F.3d 938 (9th Cir. 2020)..18
Ward v. Polite, 667 F.3d 727, 738-39 (6th Cir. 2012).............................................26 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) ................................ 32, 33
v

Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1025-26 (D.C. Cir. 2006) .....29 Constitutional Provisions U.S. CONST., amend. I ..............................................................................................23 U.S. CONST., Art. III, § 2 .........................................................................................10 Federal Statutes 42 U.S.C. § 2479…………………………………………………………………...2 State Statutes KY. CONST. § 231……………………………………………………………….31
vi

STATEMENT CONCERNING ORAL ARGUMENT This appeal is moot. Therefore, the Governor and the Secretary do not believe this Court should reach the constitutional issues raised by Plaintiffs. For this reason, the Governor and the Secretary do not believe that oral argument is necessary at this time.
vii

STATEMENT OF THE CASE
The position of Plaintiffs Maryville Baptist Church, Inc. and Dr. Jack
Roberts in this appeal is unique. They argue the District Court did not have
jurisdiction to grant the preliminary injunction, the very relief they ultimately seek
at this early stage of the litigation. In short, they are asking this Court to undo the
relief the District Court granted them, so that this Court may order the District
Court to grant them the same relief.
The underlying facts are not in dispute. Kentucky, like every other state in
the country, is in a daily life-and-death battle against COVID-19 – the gravest
threat to public health in over a century. COVID-19 is a severe, acute respiratory disease caused by the virus SARS-CoV-2.1 More than 4.2 million Americans have
tested positive for COVID-19 and more than 146,000 Americans have died
because of the disease.2 First identified in Wuhan, Hubei Province, China in
December 2019, the World Health Organization (“WHO”) declared the spread of
1 Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/aboutepidemiology/identifying-source-outbreak.html (last visited on July 28, 2020). See also Dr. Steven Stack Affidavit, RE 31-2, Page ID # 451-52. 2 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID19), Cases, Data & Surveillance, Cases in the U.S., available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov% 2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fsummary.html (last updated July 27, 2020) (last visited July 27, 2020).
1

the virus a Public Health Emergency of International Concern on January 30,
2020.3 The next day, the U.S. Department of Health and Human Services declared
a public health emergency, which the Department has twice renewed, most
recently on July 25, 2020.4,5 See 42 U.S.C. § 247d. The WHO declared COVID-19
a pandemic on March 11, 2020.6
COVID-19 is highly contagious and can be lethal. COVID-19 spreads
primarily among people who are in close contact – within about six feet – for a
3 World Health Organization, WHO Director-General’s Statement On [International Health Regulations] Emergency Committee On Novel Coronavirus (2019-nCoV), Jan. 30, 2020, available at https://www.who.int/dg/speeches/detail/ who-director-general-s-statement-on-ihr-emergency-committee-on-novelcoronavirus-(2019-ncov) (last visited July 27, 2020).
4 U.S. Department of Health and Human Services, Determination That A Public Health Emergency Exists, available at https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (last visited July 27, 2020).
5 U.S. Department of Health and Human Services, Renewal of Determination That A Public Health Emergency Exists, available at https://www.phe.gov/emergency/ news/healthactions/phe/Pages/covid19-23June2020.aspx (last visited July 27, 2020).
6 World Health Organization, WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 March 2020, Mar. 11, 2020, available at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarksat-the-media-briefing-on-covid-19---11-march-2020 (last visited July 27, 2020).
2

prolonged period of time.7 Older people and people of all ages with chronic
medical conditions (such as heart disease, lung disease, and diabetes) have a higher risk of developing serious illness.8
On March 6, 2020, Kentucky confirmed its first case of COVID-19. The
same day, the Governor declared a State of Emergency. (Ky. Exec. Order No. 2020-215).9 Governor Beshear and the Kentucky Cabinet for Health and Family
Services (“CHFS”), through CHFS Secretary Friedlander, then acted decisively to
prevent the virus’s spread in Kentucky under their emergency powers in KRS
Chapters 39A, 194A and 214.
The Governor and CHFS took measured, systematic actions to decrease the
number of chances for exposure to the virus by prohibiting certain high-risk
7 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID19), available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/social-distancing.html (last updated July 15, 2020) (last visited July 23, 2020). 8 The CDC’s National Center for Health Statistics reports that, as of 2017, Kentucky ranks first among states in deaths for chronic lower respiratory disease, fifth for deaths due to kidney disease, and ninth for heart disease and diabetes. Stats of the State of Kentucky (2017), Centers for Disease Control and Prevention, National Center for Health Statistics, available at https://www.cdc.gov/nchs/ pressroom/states/kentucky/kentucky.htm (last visited July 27, 2020). 9 Available at https://governor.ky.gov/attachments/20200306_ExecutiveOrder_2020-215.pdf (last visited on July 27, 2020). See also Dr. Steven Stack Affidavit, RE 31-2, Page ID # 454.
3

activities.10 Following Centers for Disease Control and Prevention (“CDC”) guidance, on March 19, 2019, CHFS issued an Order (hereinafter “mass gatherings order”) prohibiting all mass gatherings, defined to include “any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” (CHFS Order, Mar. 19, 2020).11
On March 22, Governor Beshear closed businesses that are not lifesustaining during a global pandemic.12 He ordered closed other businesses for inperson work and placed additional restrictions on life-sustaining businesses that remained open that helped limit the spread of the disease.13 In large part, these
10 See generally Kentucky’s Response to COVID-19, available at https://governor.ky.gov/covid19 (last visited July 27, 2020). See also Dr. Steven Stack Affidavit, RE 31-2, Page ID # 454-55. 11 Available at https://governor.ky.gov/attachments/20200319_Order_MassGatherings.pdf (last visited July 27, 2020). See also Dr. Steven Stack Affidavit, RE 31-2, Page ID # 454. 12 Available at https://governor.ky.gov/attachments/20200322_ExecutiveOrder_2020-246_Retail.pdf (last visited July 28, 2020). 13 Available at https://governor.ky.gov/attachments/20200325_ExecutiveOrder_2020-257_Healthy-at-Home.pdf (last visited on July 28, 2020).
4

measures were successful in flattening the initial curve in Kentucky to prevent our hospitals and health resources from being overwhelmed.14
Plaintiffs filed the underlying action almost a month later on April 17, 2020. (Complaint, RE 1, Page ID ## 1-53.) Plaintiffs alleged the mass gatherings order violated the First Amendment, equal protection, rights protected under the Kentucky Constitution, the Religious Land Use and Institutionalized Persons Act, and the Kentucky Religious Freedom Restoration Act. (Id., at Page ID ## 27-47.) Plaintiffs sought a temporary restraining order, preliminary injunction, declaratory relief and a permanent injunction against enforcement of the mass gatherings order. (Id., at Page ID ## 48-52.)
On April 18, 2020, the District Court denied Plaintiffs’ motion for a temporary restraining order (Order, RE 9, Page ID ## 221-227.) Plaintiffs appealed and moved for an emergency injunction pending appeal. (Notice of Appeal, RE 16, Page ID # 252; Emergency Motion for Preliminary Injunction Pending Appeal, RE 17, Page ID # 254.) On April 30, 2020, Plaintiffs moved for an emergency injunction pending appeal in this Court. (Doc. 4-1.) On May 2, this Court granted the motion to the extent the mass gatherings order applied to drive-in services held at a place of worship. Maryville Baptist Church v. Beshear, 957 F.3d 610, 616 (6th Cir. 2020). On May 8, 2020, the District Court granted Plaintiffs’ motion for an
14 See Dr. Steven Stack Affidavit, RE 31-2, Page ID # 455. 5

injunction pending appeal as to in-person services and their motion for a preliminary injunction. (Order, RE 35, Page ID # 575.)
On May 9, 2020, the Governor amended the mass gatherings order to allow in-person faith-based services.15 The order required faith-based organizations to implement and follow the Guidelines for Places of Worship, which stated places of worship should limit attendance for in-person services to 33% building occupancy capacity, which increased to 50% building occupancy capacity on June 10, 2020.16
The Governor has since moved the District Court to dissolve the preliminary injunction and injunction pending appeal based upon orders of the United States Supreme Court denying similar relief to churches in California and Illinois. (Motion to Dissolve, RE 46, Page ID # 659.) That motion will be fully briefed on August 3, 2020.
In the meantime, this appeal continues even though the District Court granted Plaintiffs a preliminary injunction.
15 Available at https://govsite-assets.s3.amazonaws.com/8gdcjsWTRSG2jTuzanK1 _May%209,%202020%20-CHFS%20-%205-9-2020%20Order.pdf (last visited July 27, 2020). 16 Available at https://govsite-assets.s3.amazonaws.com/8gdcjsWTRSG2j TuzanK1_May%209,%202020%20-CHFS%20-%205-9-2020%20Order.pdf (last visited July 27, 2020).
6

SUMMARY OF THE ARGUMENT As COVID-19 continues to evolve – and rapidly spread – throughout the United States, the States’ responses and the law have also continued to evolve. Importantly, Plaintiffs’ claim is now moot because the District Court granted the preliminary injunction, and as of May 9, the Governor has permitted places of worship to hold in-person services. And though the virus is surging, the Governor has not indicated that he will again restrict in-person gatherings at places of worship. In fact, he recently requested – but did not mandate – that places of worship pause indoor, in-person services and have virtual services for two weeks to help slow the spread of COVID-19.17 As a result, the underlying preliminary injunction – that Plaintiffs were granted – is no longer necessary. The law has also responded overwhelmingly in favor of providing the states with significant leeway to craft emergency public health measures to slow the spread of COVID-19. Of particular interest here, the United State Supreme Court – in Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, et al., 591 U.S. ___ (2020), South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613 (Mem.) (2020), and Elim Romanian Pentecostal Church v. Pritzker, 19A1046 (Order List 590 U.S.) (U.S. May 29, 2020) – has now denied three applications for
17 Gov. Beshear asks churches to pause in-person services for two weeks, WKYT, July 24, 2020, available at https://www.wkyt.com/2020/07/25/gov-beshear-askschurches-to-pause-in-person-services-for-two-weeks/ (last visited July 27, 2020).
7

injunctions sought by churches against orders of the governors of Nevada, California and Illinois, orders that are similar to the mass gatherings order. Those decisions, as well as the concurring and dissenting opinions issued in South Bay, reveal that the emergency public health orders issued by governors to address the spread of COVID-19 are entitled to the deferential standard of review set forth in Jacobson v. Massachusetts, 197 U.S. 11 (1905) that allows for judicial intervention only if an emergency order is “beyond all question, a plain, palpable invasion of fundamental rights.” Id. at 30. Under that standard, the District Court properly denied Plaintiffs’ motion for a temporary restraining order.
Moreover, the mass gatherings order does not violate the Free Exercise Clause of the First Amendment because the law is neutral and of general applicability. Nor does it violate free speech or assembly rights because the order – for the same reasons that it is neutral and generally applied - is a narrowly tailored, content-neutral time, place and manner restriction. To be sure, it applied to any event similar to an in-person religious service and only exempted dissimilar activities where social interaction occurs in transit or as necessary for preservation of the public health during a global pandemic. As such, the order is not subject to strict scrutiny, but must be supported only by a rational basis. The mass gatherings order clearly meets this standard of review because it aims to reduce social interaction where the virus is known to spread.
8

Finally, Plaintiffs’ claims under state law are barred under the doctrine of sovereign immunity, and their argument that the May 9 order is vague is not properly before this Court because it was not raised before the District Court.
ARGUMENT The District Court granted Plaintiffs’ motion for a preliminary injunction against the mass gatherings order as it applied to indoor, in person services of faith-based organizations. As a result, this appeal of the District Court’s denial of Plaintiffs’ motion for a temporary restraining order is moot. Regardless, however, the District Court did not abuse its discretion when it denied Plaintiffs’ motion for a temporary restraining order, confirmed by subsequent orders of the Supreme Court. As an emergency public health measure targeting the spread of COVID-19, the mass gatherings order was entitled to substantial deference as to its constitutionality, and state actors are granted wide latitude to craft orders responding to an emergency public health crisis. Indeed, United States Supreme Court precedent requires courts to apply a deferential standard to emergency public health orders issued in response to the COVID-19 pandemic. Under this standard, Plaintiffs did not show a strong likelihood that the mass gatherings order violated the First Amendment or state
9

law. As a result, this Court should affirm the District Court’s order denying the temporary restraining order and dissolve the injunction pending appeal.18 I. Plaintiffs’ Claims Are Moot Because Places Of Worship May Now Hold
Indoor In-Person Services. The United States Constitution limits the federal judicial power to “cases” and “controversies.” U.S. Const., Art. III, § 2. The issue of mootness addresses whether an actual, live controversy exists during the litigation or whether an intervening event will render the Court’s final adjudication merely advisory. Calderon v. Moore, 518 U.S. 149, 150 (1996). In other words, a court that at one point had jurisdiction may lose that jurisdiction if the case becomes moot because an intervening event has “completely and irrevocably eradicated the effects of the alleged violation.” Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (citations omitted). This Court treats “cessation of the allegedly illegal conduct by government officials ... with more solicitude ... than similar action by private parties.” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012). Therefore, government “self-correction provides a secure foundation for a dismissal based on mootness so long as it appears genuine.” Id. “Legislative repeal or amendment of a challenged statute while a case is pending on appeal usually eliminates this
18 For the same reasons stated herein, the Court should reject the incorrect analysis of the Attorney General in his amicus brief (R. 41).
10

requisite case-or-controversy because a statute must be analyzed by the ... court in its present form.” Id.
This case became moot on May 9, 2020, when Governor Beshear and Secretary Friedlander amended the mass gatherings order. That order – the only order at issue in this matter – no longer applies to in-person services of faith-based organizations. Indeed, this Court already recognized the issue of mootness in its per curiam order in this matter, stating, “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.” Maryville Baptist Church v. Beshear, 957 F.3d 610, 612 (6th Cir. 2020). This remains true even though the Governor initiated the May 20 reopening plan on May 9. It also remains true even though faith-based services are subject to other orders that encourage capacity to be limited to 50% and require implementation of social distancing, sanitation and hygiene recommendations by the CDC. Plaintiffs did not challenge those guidelines.
Moreover, additional action by the Governor indicates he is unlikely to prohibit in person faith based services as a future response to limiting the spread of COVID-19. As mentioned above, as cases continue to rise in the country and the Commonwealth, the Governor has taken additional steps to limit social interaction. Just this week, he announced the closure of bars and limitation of restaurant capacity to 25% indoors. Yet with the rising cases, he only requested churches to
11

begin holding virtual-only services for a two-week period. This is in spite of
evidence showing that places of worship remain a places where the virus can
spread.19
19 Pastor: 40 infected with coronavirus after church event, Associated Press, July 27, 2020, available at https://apnews.com/0fa0546d160d4d3f1 (last visited July 28, 2020);
See also Allison James, DVM, PhD, et al., CDC Morbitiy and Mortality Weekly Report (MMWR), High COVID-19 Attack Rate Among Attendees at Events at a Church – Arkansas, March 2020, May 22, 2020, available at https://www.cdc.gov/mmwr/volumes/69/ wr/mm6920e2.htm (last visited July 27, 2020); Leigh Hamner, MPH, et al., CDC Morbidity and Mortality Weekly Report (MMWR), High SARS-CoV-2 Attack Rate Following Exposure at a Choir Practice – Skagit County, Washington, March, 2020 (Early Release/Vol. 69, May 12, 2020), available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6.htm (last visited July 27, 2020);
https://dhhr.wv.gov/News/2020/Pages/COVID-19-Outbreak-Confirmed-inGreenbrier-County-Church.aspx (last visited July 27, 2020); Kate Conger, Churches emerge as Major Source of Coronavirus Cases, New York Times, July 12, 2020, available at https://www.nytimes.com/2020/07/08/us/coronaviruschurches-outbreaks.html (last visited July 27, 2020).
In Kentucky, an outbreak of 18 cases of COVID-19 occurred at a central Kentucky church that began holding in-person services on May 13, 2020, prompting the church to halt in-person services. Billy Kolbin, Kentucky pastor spars with Beshear after 18 church members test positive, The Courier-Journal, June 9, 2020, available at https://www.courier-journal.com/story/news/local/2020/ 06/09/coronavirus-kentucky-17-clays-mill-baptist-church-membersinfected/3164299001/ (last visited July 27, 2020); Alex Acquisto, This Central Kentucky church reopened on May 10 and became a Covid-19 hot spot, Lexington Herald-Leader, June 5, 2020 (last visited July 27, 2020).
12

But Plaintiffs’ claims are also moot because the District Court granted the preliminary injunction on May 8. Thus, they have already obtained the relief they now seek from this Court. Plaintiffs’ request of this Court to undo what the District Court has already done for the sole purpose of having this Court then order the District Court to grant the same relief is a request for a purely advisory opinion.
A case or controversy no longer exists between Plaintiffs and the Governor regarding the closure of places of worship to indoor, in person services. The relief was granted and the Governor amended the mass gatherings order so that it no longer applies to Plaintiffs. This appeal is moot. II. The District Court Did Not Abuse Its Discretion By Denying Plaintiffs’
Motion for a Temporary Restraining Order. This Court’s review of the District Court’s denial of Plaintiffs’ motion for a temporary restraining order is limited to whether the lower court abused its discretion. Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d 683, 684 (6th Cir. 2004) (citation omitted). A court abuses its discretion if it improperly applies the law or uses an erroneous legal standard. Id. at 684-85 (citation omitted). “There are four factors to be considered in determining whether the grant or denial of a preliminary injunction was an abuse of discretion: (a) the likelihood of success on the merits of the action, (b) the irreparable harm which could result without the relief requested, (c) the impact on the public interest, and (d) the possibility of substantial harm to others.” Christian Schmidt Brewing Co. v. G.
13

Heileman Brewing Co., Inc., 753 F.2d 1354, 1356 (6th Cir. 1985) (citations omitted).
Here, the District Court did not abuse its discretion by denying Plaintiffs’ motion to temporarily restrain the Governor from enforcing the mass gatherings order as it applied to places of worship. Since the District Court’s Order, the Supreme Court has similarly denied preliminary injunctive relief in three cases, and, in doing so, has made clear that Supreme Court precedent requires great deference and wide latitude when reviewing public health measures enacted in response to the COVID-19 emergency. Furthermore, because the order applied to all mass gatherings, both secular and non-secular, the order is neutral and of general applicability, a narrowly tailored content-neutral time, place and manner restriction, and not in violation of the First Amendment.
Moreover, Plaintiffs claims under Kentucky state law are barred by the doctrine of sovereign immunity, and their argument regarding vagueness is not properly before this Court. For these reasons, this Court should affirm the District Court’s order denying Plaintiffs’ motion for a preliminary injunction.
A. The Order Meets the Deferential Standard Applied to Public Health Measures By the United States Supreme Court Because It Targets The Spread of COVID-19 and is Not, Beyond All Question, A Plain, Palpable Violation of Fundamental Rights.
The Supreme Court requires this Court to grant the Governor wide latitude when reviewing emergency public health orders like the mass gathering order,
14

aimed at limiting the spread of COVID-19. Here, that latitude means this Court should affirm the District Court’s denial of Plaintiffs’ motion to enjoin the mass gatherings order.
When public officials face the task of protecting the “safety and health of the people . . . in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.” South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613, 1613-14 (Mem.) (2020) (internal quotation marks and citations omitted). This principle – relying primarily upon Jacobson v. Massachusetts, 197 U.S. 11 (1905) – has reemerged during the COVID-19 pandemic to guide federal courts’ review of executive orders issued by governors throughout the country intended to slow the spread of the virus. See League of Ind. Fitness Facilities and Trainers, Inc. v. Whitmer, --- Fed. Appx. ----, 2020 WL 3468281 (6th Cir. June 24, 2020). Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 922 (6th Cir. 2020). This Court, in Adams & Boyle, P.C., noted that it “is imperative in such circumstances that judges give legislatures and executives—the more responsive branches of government— the flexibility they need to respond quickly and forthrightly to threats to the general welfare, even if that flexibility sometimes comes at the cost of individual liberties.” 956 F.3d at 916-17.
15

In Jacobson itself, the Court upheld a mandatory vaccination ordinance enacted by the city of Cambridge Massachusetts intended to slow the slow the spread of the smallpox epidemic. 197 U.S. at 12. The Court recognized that because “a community has the right to protect itself against an epidemic of disease” threatening the public safety and health, “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Id. at 27, 29. Facing these great dangers, when a state exercises emergency powers to enact a public health measure, courts are instructed to uphold the measure unless it (1) “has no real or substantial relationship to [the emergency]” or (2) “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law[.]” Id. at 30 (emphasis added).
This standard particularly applies during the preliminary injunction stage of a proceeding and the interlocutory relief sought from the lower court’s decision to withhold such preliminary relief. In South Bay, Justice Roberts noted the high bar already set for such relief because “an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” 140 S.Ct. at 1613 (quoting Respect Main PAC v. McKee, 562 U.S. 996 (2010). The Chief Justice recognized that the “power is used where ‘the
16

legal rights at issue are indisputably clear’ and, even then, ‘sparingly and only in the most critical and exigent circumstances.’” Id. (citation omitted).
At this stage of the proceeding, where Plaintiffs seek interlocutory relief from an order that prohibited all mass gatherings in the early stages of the state response to COVID-19 – an order that has been amended to no longer apply to faith-based services as the state “actively shap[es] [its] response to changing facts on the ground[,]” id. at 1614 – Plaintiffs have not met their substantially high burden. Thus, the notion that it could be “indisputably clear” that the mass gatherings order “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law” – in the words of Chief Justice Roberts – “seems quite improbable.” This is particularly true given Chief Justice Roberts’ concurring opinion as to the Free Exercise Clause claims, the 5-4 decision to deny injunctive relief in South Bay, and the dissent only garnering the support of two other Justices, Moreover, the Court denied a similar application on the same day in Elim Romanian Pentecostal Church v. Pritzker, Gov. of Illinois, 19A1046 (Order List 590 U.S.) (U.S. May 29, 2020), and again on July 24, 2020, in Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, et al., 591 U.S. ___ (2020).
In South Bay, the Court, in a 5-4 decision, denied an application for injunctive relief to enjoin the Governor of California’s Executive Order that limited attendance at public gatherings, including a 25% capacity restriction on
17

places of worship. 140 S.Ct. at 1613. Plaintiff South Bay initially challenged
California’s stay at home order on grounds that it prevented any in-person religious
services. South Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 939 (9th
Cir. 2020). The District Court and the Ninth Circuit each denied South Bay any
preliminary injunctive relief from the stay at home order. Id.
The Supreme Court also denied the church any injunctive relief. South Bay,
140 S.Ct. at 1613. Chief Justice Roberts and Justice Kavanaugh authored opinions
addressing the likelihood of success of the Free Exercise Claim and the split on
this issue in the Circuits below. Concurring in the Court’s denial, Chief Justice
Roberts stated:
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
Id. Chief Justice Roberts continued by writing:
Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson, 197 U.S. 11, 38, 25 S.Ct. 358, 49 L.Ed. 643 (1905).When those officials “undertake[] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, Marshall v. United States, 414 U.S. 417, 427, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974). Where those broad
18

limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). Id. at 1613-14. Justice Kavanaugh authored a dissent, joined by Justices Thomas and Gorsuch. While they agreed that “combating the spread of COVID19 and protecting the health of its citizens” is a compelling interest, principally, they disagreed with Chief Justice Roberts’s finding that the order likely complied with the Free Exercise Clause because it applied to comparable secular gatherings, and only treated dissimilar activities differently. Id. at 1614-15 (Kavanaugh, J., dissenting) (relying on Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020) (per curiam)). This disagreement acknowledges and mirrors the split between the circuit courts. This Court, in two decisions granting injunctions pending appeal, aligned with the dissent in South Bay. See Roberts, 958 F.3d 409; Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020). The Seventh and Ninth Circuits aligned with Chief Justice Roberts’s concurrence. Elim Romanian Pentecostal Church v. Pritzer, 962 F.3d 341 (7th Cir. 2020); South Bay United Pentecostal Church v. Newsom, 959 F.3d 938 (9th Cir. 2020). Thus, although it is unclear whether the other four Justices that agreed to deny injunctive relief to
19

South Bay also agreed with Chief Justice Roberts’s opinion, South Bay clearly
demonstrates that a majority of the Court rejected the analysis applied by Justice
Kavanaugh and this Court in Roberts and Maryville.
The Court again denied injunctive relief to a church on July 24, 2020, under
circumstances more favorable to the church than those present in South Bay. In
Calvary Chapel, 591 U.S. _____, the Court, in a 5-4 decision reflecting the same
alignment as South Bay, denied Calvary Chapel Dayton Valley injunctive relief
against the Governor of Nevada from 50-person capacity restrictions that did not
apply to casinos, which were subject to 50% capacity restrictions. No concurring
opinion was issued, but in dissent, Justice Alito recognized the necessity of the
early responses by States to restrict certain personal liberties as opposed to orders
issued more recently, like the Nevada order. He stated,
For months now, States and their subdivisions have responded to the pandemic by imposing unprecedented restrictions on personal liberty, including the free exercise of religion. This initial response was understandable. In times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations. At the dawn of an emergency – and the opening days of the COVID-19 outbreak plainly qualify – public officials may not be able to craft precisely tailored rules. Time, information, and expertise may be in short supply, and those responsible for enforcement may lack the resources needed to administer rules that draw fine distinctions. Thus, at the outset of an emergency, it may be appropriate for courts to tolerate blunt rules. In general, that is what has happened thus far during the COVID-19 pandemic.
Id., at *3.
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Here, Plaintiffs moved to enjoin a March 19 order – entered in the infancy of the COVID-19 emergency – that prohibited all mass gatherings. On May 9, 2020,
prior to any other closed establishment, the Governor permitted in-person services
at faith-based organizations. Other mass gatherings remain subject to more severe
restrictions. In response to rising cases, the Governor ordered gatherings to restrict
the number of individuals present to 10 or fewer. Bars are now closed and restaurants are now at 25% indoor capacity until at least August 10.20 Bars and
Restaurants, along with other entities and businesses, were only permitted to reopen after places of worship.21
Plaintiffs’ arguments request this Court to ignore the Supreme Court’s
actions in South Bay, Elim Romanian, and Calvary Chapel, and the longstanding
precedent they rely upon, and continue as if these three cases do not provide any
guidance. This it should not do. One can concede that the opinions in South Bay
and Calvary Chapel do not provide the full scope of what the Supreme Court will
20 Available at https://govsiteassets.s3.amazonaws.com/5l7HAtkSS4CqDxLf7WIV_7-282020%20CHFS%20Order.pdf (last visited July 27, 2020); https://govsiteassets.s3.amazonaws.com/GlXFnrapT8Wp96HaFGBf_2020-7-27%20%20Healthy%20At%20Work%20Reqs%20-%20Restaurants%20%20Down%20to%2025-%20capacity%20-%20Final%20Version%204.0.pdf (last visited July 27, 2020). 21 See generally https://govstatus.egov.com/ky-healthy-at-work (last visited July 27, 2020).
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decide if and when the underlying merits of these cases reach the Court, but it cannot be ignored that the Court has now on three occasions denied the relief Plaintiffs seek here while recognizing the analysis that splits this Circuit from the Seventh and Ninth Circuits.
This Court should follow the lead of South Bay, Elim Romanian, and Calvary Chapel and affirm the District Court’s denial of the temporary restraining order below. These three orders, along with Justice Roberts’s concurrence, instruct that at this early stage of the proceeding, when Plaintiffs’ burden is already exceptionally high, they cannot demonstrate with indisputable clarity that beyond all question, the mass gatherings order is a plain, palpable violation of the Free Exercise Clause. This is supported by the Court’s refusal to adopt Justice Kavanaugh’s dissent in South Bay that cited this Court’s opinion granting the injunction pending appeal in this matter. That analysis – now rejected by the Supreme Court – cannot be the basis for finding Plaintiffs met their burden under Jacobson. The District Court’s order denying preliminary injunctive relief should be affirmed.
B. The Order Does Not Violate the Free Exercise Clause Because It is a Neutral Law of General Applicability.
In denying Plaintiffs’ motion for a temporary restraining order, the District Court noted that the mass gatherings order applied all mass gatherings, and Plaintiffs’ comparison of liquor stores and grocery stores was not appropriate
22

because those involve singular and transitory experiences. (Order, RE 9, Page ID # 224.) The Court reached this conclusion even though it did not apply the substantial burden upon Plaintiffs imposed by Jacobson. This order also conforms to Chief Justice Roberts’s concurring opinion in South Bay. 140 S.Ct. at 1613. If this Court does not dismiss the appeal as moot, it should affirm the District Court’s Order because it does not violate the First Amendment.
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]” U.S. CONST., amend. I. The free exercise clause embodies a liberty applied to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). However, the clause “does not include liberty to expose the community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (citation omitted). Nor does the clause “relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263, n. 3 (1982)).
This is because the clause “embraces two concepts – freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” Cantwell
23

v. State of Conn., 310 U.S. 296, 303-04 (1940) (citing Reynolds v. United States, 98 U.S. 145 (1878); Davis v. Beason, 144 U.S. 33 (1890)). The holding of “religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” Minersville School Dist. Bd. of Ed. v. Gobitis, 30 U.S. 586, 594-95 (1940). Under the prevailing standard, “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing Smith, 494 U.S. 872).
State action is not neutral if the purpose “is to infringe upon or restrict practices because of their religious motivation,” or “the purpose . . . is the suppression of religion or religious conduct.” New Doe Child #1 v. Congress of United States, 891 F.3d 578, 591 (6th Cir. 2018) (quoting Lukumi, 508 U.S. at 533). “A law is not of general applicability if it ‘in a selective manner impose[s] burdens only on conduct motivated by religious belief[.]’” Michigan Catholic Conference and Catholic Family Serv.’s v .Burwell, 755 F.3d 372 (6th Cir. 2014) (quoting Lukumi, 508 U.S. at 543).
Here, the March 19 order – both on its face and in its application – is neutral and of general applicability. By its plain terms, the Order prohibited “all mass
24

gatherings,” not just faith-based gatherings. (See Amended Complaint, RE 6-4, Page ID ## 99-100.) The order targets slowing the spread of COVID-19 by limiting social interaction, in particular the social interaction that occurs at mass gatherings, where many individuals from different communities congregate for extended periods of time. Its entire purpose and success hinged upon it applying to all gatherings, not just religious gatherings. Plaintiffs present no evidence the order targeted their mass gathering because of its religious nature. Rather, the order targeted gathering in large groups of any kind. In application, the order forced the closure of businesses and events with no religious affiliation, including movie theaters, concerts, and sporting activities.
State and local officials ordered the closure of businesses for noncompliance with social distancing and hygiene measures, as well as businesses that are not life-sustaining but continued to operate in violation of orders. See Dr. Steven Stack Affidavit, RE 31-2, Page ID # 454. Thus, even though the order may “burden” faith-based mass gatherings, it equally burdened all mass gatherings, regardless of their religious nature. Its purpose was to prevent the spread of a disease that is particularly infectious, with no cure, treatment, or vaccine. The order did not discriminate or differentiate among groups, because COVID-19 does not differentiate or discriminate.
25

Plaintiffs’ argument that the order is not generally applied ignores and distorts the facts. The order did not exempt secular mass gatherings; nor was it applied in a manner that would exempt secular mass gatherings. In fact, the order did not provide any exceptions at all. Cf. Ward v. Polite, 667 F.3d 727, 738-39 (6th Cir. 2012). Rather, the Order provided examples of what a “mass gathering” is and what it is not; the distinction is that it closes any event the purpose of which is to congregate person-to-person for an extended period to engage in a particular communal activity.
The order prohibiting mass gatherings leaves open locations providing services that are literally necessary to sustain life, and necessary to maintain public health and safety, despite the fact that multiple people may be in transit in the location at the same time. Or, as Chief Justice Roberts noted, the order “exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.” South Bay, 140 S.Ct. at 1613. As the Eastern District of Kentucky correctly observed:
Moreover, there is an undeniable difference between certain activities that are, literally, life sustaining and other that are not. Food, medical care and supplies, certain travel necessary to maintain one’s employment and thus income, are, in that sense, essential. Concerts, sports events, and parades clearly are not. And while plaintiffs argue that faith-based gatherings are as important as physical sustenance, as a literal matter, they are not life-sustaining in the physical sense.
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Roberts v. Neace, Case No. 2:20-cv-00054, RE 46, Page ID # 832 (E.D.Ky. May 4, 2020). Yet even in some of those instances, the Governor imposed additional
restrictions, requiring social distancing and hygiene practices, as well as limiting life-sustaining retail businesses to allowing only one adult per household in at a time. 22
The Governor’s encouragement of drive-in and online broadcast of faithbased services further demonstrates the order’s neutrality and general applicability. Through the creativity of Kentucky’s faith leaders, Kentuckians could always and still can participate in their faith-based events, without the risk of spreading
COVID-19. Similarly, courts have creatively permitted access to the courts via telephonic hearings. Under Plaintiffs’ argument, courts would also be required to provide in-person services regardless of the risk posed to judicial staff, parties and
witnesses. Plaintiffs principally argue that the Governor cannot prohibit in-person
church services while leaving liquor store or supercenter shopping open. (Doc.37
22 See Ky. Exec. Order 2020-246, Mar. 22, 2020, available at https://governor.ky.gov/attachments/20200322_Executive-Order_2020246_Retail.pdf 9last visited July 27, 2020); Ky. Exec. Order 2020-257, Mar. 25, 2020, available at https://governor.ky.gov/attachments/20200325_ExecutiveOrder_2020-257_Healthy-at-Home.pdf (last visited July 28, 2020); Ky. Exec. Order 2020-275, Apr. 8, 2020, available at https://governor.ky.gov/attachments/ 20200408_Executive-Order_2020-275_State-of-Emergency.pdf (last visited July 28, 2020).
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Page: 44.) But this argument amounts to a policy disagreement, without recognizing the public health concerns driving that policy. And is precisely what Courts describe as the “difficult line-drawing” public health officials must undertake in crafting a response to a public health emergency. See League of Ind. Fitness Facilities, 2020 WL 3468281, at *3. Shutting down hospitals, transportation, grocery stores, and even liquor stores could undermine the public health during a global pandemic. The same cannot be said of in-person church services. And, though these lines may admittedly be imperfectly drawn, it is also why this Court and the Supreme Court recognize that the Constitution leaves this “difficult line-drawing” to officials directly accountable to the people. Id. (citing South Bay, 140 S.Ct. at 1613-14).
Because the Order is neutral and of general applicability, it is subject to “rational basis review[.]” Miller v. Davis, 123 F. Supp. 3d 924, 938 (E.D. Ky. 2015) (citing Seger v. Ky. High Sch. Athletic Ass’n, 453 Fed. Appx. 630, 634 (6th Cir. 2011) (interpreting Smith, 494 U.S. 872 and Lukumi, 508 U.S. 520)). Under rational basis review, an emergency order will be upheld if it is “rationally related to furthering a legitimate state interest.” Seger, 453 Fed. Appx. 635. An emergency order “subject to rational basis review is accorded a strong presumption of validity.” Id. It should be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” F.C.C. v. Beach
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Commc’ns, Inc., 508 U.S. 307, 313 (1993). Plaintiffs carry the burden to negate “every conceivable basis which support it[.]” Id. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).
The mass gatherings order meets rational basis review. As Justice Alito’s dissent in Calvary Cathedral acknowledges: the threat of the spread of COVID-19 in the early days of the virus was an emergency that required public officials to respond quickly and decisively. 591 US ____, at *3. (Alito, J. dissent). The Governor and the Secretary did just that when they issued the March 19 mass gatherings order. The order bears a reasonable relationship to curbing the spread of COVID-19 by limiting social interactions for prolonged periods between large groups of people from different households. (See Dr. Steven Stack Affidavit, RE 31-2, Page ID # 452-56.) Because the prohibition on mass gatherings reasonably relates to the legitimate state interest in stopping the spread of disease, Plaintiffs’ free exercise claim was not substantially likely to prevail in the District Court.
C. Plaintiffs’ State Law Claims are barred by Sovereign Immunity. The Plaintiffs cannot show a strong likelihood of success on a state claim that is barred by sovereign immunity in federal court. The Governor expressly asserted his immunity in the Motion to Dismiss filed before the District Court. (Motion to Dismiss, RE 33-1, Page ID ## 502-503.) As a result, the claim under
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the KRFRA and the claims under the Kentucky Constitution do not support a reversal of the District Court’s order denying the temporary restraining order.
The Eleventh Amendment to the United States Constitution bars suits against the state. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 9798 (1984). State officials sued in their official capacities are “arms of the state” entitled to assert the State’s sovereign immunity on their own behalf. See Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005). The Supreme Court acknowledges three exceptions: suits against state officials for injunctive relief challenging the constitutionality of the official’s action, see Ex parte Young, 209 U.S. 123 (1908), suits to which states consent, see Pennhurst, 465 at 98, and suits invoking Congressional statutes pursuant to the Fourteenth Amendment, see Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001).
These exceptions are not applicable to Plaintiffs’ state law claims asserted in the Complaint. As to the state law claims, “because the purposes of Ex parte Young do not apply to a lawsuit designed to bring a State into compliance with state law, the States' constitutional immunity from suit prohibits all state-law claims filed against a State in federal court, whether those claims are monetary or injunctive in nature.” Ernst v. Rising, 427 F.3d 351, 368 (6th Cir. 2005) (citing Pennhurst, 465 U.S. at 106). Nor has the Commonwealth consented to suit in federal court on the state law claims. The Kentucky Constitution provides that the Commonwealth
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cannot waive immunity except by express legislative action. KY. CONST. § 231. See also Edelman v. Jordan, 415 U.S. 651, 673 (1977) (a state must specify “by the most express language” its intent to waive Eleventh Amendment immunity and subject itself to suit in federal court). The Commonwealth has not done so.
Plaintiffs’ claims also cannot survive as requests for declaratory judgment. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (holding that the Declaratory Judgment Act does not extend the jurisdiction of federal courts.)23
Accordingly, sovereign immunity bars Plaintiffs’ claims against the Governor in his official capacity for declaratory relief under the KRFRA and Kentucky Constitution. As a result, those claims cannot support a reversal of the District Court’s order refusing to temporarily restrain the Governor.
D. The Mass Gatherings Order Does Not Violate Plaintiffs’ Free Speech or Assembly Rights Because the Order is A Narrowly Tailored Content-Neutral Time, Place and Manner Restriction.
“[T]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). This includes
23 As to the RLUIPA claim, which is not addressed on appeal, that Act does not expressly abrogate a state’s sovereign immunity. See Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1025-26 (D.C. Cir. 2006). Thus, the state’s sovereign immunity would bar this claim as well.
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public forums, such as state capitols and their grounds, where “the government may impose reasonable restrictions on the time, place, or manner of protected speech[.]” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). To pass constitutional muster, a time, place, or manner restriction must be: (1) contentneutral, (2) “narrowly tailored to serve a significant government interest” and (3) “leave open ample alternative channels for communication of the information.” Id. (citation omitted).
The mass gatherings order is content-neutral. To be sure, the order does not target or restrict any speech; any effect on speech is incidental. See Phelps-Roper v. Strickland, 539 F.3d 356, 361 (6th Cir. 2008) (“a regulation of places where speech may occur,” rather than a regulation of the speech itself is content-neutral) (citing Hill v. Colorado, 530 U.S. 703, 719 (2000)). Moreover, the effect applies neutrally: the order prohibits all mass gatherings. That the order distinguishes gatherings of people for work or faith-based services “is inapposite.” Givens, v. Newsom, --- F.Supp.3d ----, 2020 W 2307224 (E.D.Cal. May 8, 2020). The distinction is not one of content of speech, but as a matter of public health. The spread of COVID-19 makes any gathering dangerous to the public health regardless of the social distancing and hygiene measures employed. To restrict social encounters in a way that stops people from working, obtaining food,
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washing their clothes, or reporting on this crisis would undermine the public health goals.
The mass gatherings order is narrowly tailored to serve a significant government interest. A regulation of speech “need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied ‘so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’” Ward, 491 U.S. at 798-99 (citations omitted). This is easily met here where absent the prohibition on mass gatherings, COVID-19 would spread in crowds. Likewise, “when a contentneutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the lease restrictive or least intrusive means of serving the [state’s] goal.” Hill, 530 U.S. at 726. Here, the order permits other means of speech: it permitted virtual and drive-in faith-based services. And in fact, the order did not even intend to limit speech. Finally, even a “complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil.” Frisby v. Schultz, 487 U.S. 474, 485 (1988). While this is not a complete ban on speech, the entirety of the order seeks to limit social interaction to slow the rate of COVID-19 transmission. Under any view, the order satisfies the narrow tailoring standard.
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Finally, the temporary prohibition on in person mass gatherings does not foreclose alternative channels of communication. While the mass gatherings order prohibited in person services, Plaintiffs were able to express their views and worship through virtual and drive-in services, where individuals remain in their cars. These channels allowed Plaintiffs to reach their intended audience, as the Sixth Circuit requires. See Contributor v. City of Brentwood, Tenn., 726 F.3d 861, 865 (6th Cir. 2013).
Moreover, as in South Bay, Elim Pentecostal, and Calvary Chapel, the Supreme Court has similarly declined to preliminarily enjoin a mass gatherings order challenged as a violation of free speech and assembly rights. On July 4, Justice Kavanaugh denied an application by the Illinois Republican Party and others to enjoin the Governor of Illinois from enforcing an Executive Order that prohibited gatherings of more than fifty people. See Illinois Republican Party v. Pritzer, 19A1068 (U.S. July 4, 2020). The order, remarkably similar to the mass gatherings order at issue here – began as a prohibition on groups of more than ten and was amended to prohibit groups of more than 50. See Opinion and Order, Illinois Republic Party v. Pritzker, No 20 C 3489, Doc. 16 (N.D.Ill July 2, 2020). Plaintiffs challenged the Executive Order as a violation of the free speech and free association clauses of the First Amendment in that it did not allow larger political gatherings. See id. While Justice Kavanaugh alone denied the application, his
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denial, along with the decisions of Justices Roberts, Sotomayor, Kagan, Ginsburg and Breyer to deny the application for injunction in South Bay, Elim Pentecostal, and Calvary Chapel, indicates that free speech claims against mass gatherings orders do not warrant preliminary injunctive relief during a global pandemic.
Plaintiffs’ claim under the right to assemble takes them no further. Both rights are still subject to restrictions “as the safety of the general public may demand.” Jacobson, 197 U.S. at 29; see also Givens, --- F.Supp.3d ----, 2020 W 2307224 (denying right to assemble and petition claims for same reasons the court denied right to free speech claim). And Plaintiffs do not raise any concerns under these claims that are not subsumed by the concerns raised under the free speech claim. See Int’l Soc. for Krishna Consciousness, Inc. v. Evans, 440 F.Supp. 414, 421 (S.D.Oh. August 25, 1977) (analyzing free assembly claims under free speech analysis when intent of assembly is to communicate ideas). See also Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 388 (2011) (analysis of petition clause must be guided by the objectives underlying the right). Here, Plaintiffs’ claims under the right to assemble and petition are inextricably intertwined with the free speech claim. Neither would be successful.
E. Plaintiff’s Vagueness Claim is not Properly Before this Court. Plaintiffs raise a vagueness claim against the new guidelines issued by the Governor that permit churches to reopen safely during a global pandemic. (Doc.
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37, Page: 67.) But the May 9 order is no longer in effect; it was superseded by an order on June 10 permitting churches to operate at 50% with guidelines for social distancing. Neither the May 9 order nor the June 10 order were challenged before the District Court, and Plaintiffs have not amended their Complaint to raise these claims. This Court should not consider Plaintiffs’ vagueness claim against an order no longer in place and not challenged below for the first time on appeal. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008).
CONCLUSION For the reasons set forth herein, this Court should affirm the District Court’s denial of Plaintiffs’ Motion for a Temporary Restraining Order.
Respectfully submitted, /s/ S. Travis Mayo La Tasha Buckner General Counsel S. Travis Mayo Chief Deputy General Counsel Taylor Payne Deputy General Counsel Laura Tipton Deputy General Counsel Marc Farris Deputy General Counsel Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 (502) 564-2611 LaTasha.Buckner@ky.gov travis.mayo@ky.gov taylor.payne@ky.gov laurac.tipton@ky.gov marc.farris@ky.gov Counsel for Governor Andrew Beshear
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CERTIFICATE OF COMPLIANCE This brief complies with Fed. R. App. P. 32 and the type-volume limitation because it contains 8,292 words and uses proportionally spaced typeface of Times New Roman in 14 point.
/s/ S. Travis Mayo S. Travis Mayo CERTIFICATE OF SERVICE I hereby certify that on July 28, 2020, I electronically filed the foregoing Response via the Court’s CM/ECF system, causing all counsel of record to be served. /s/ S. Travis Mayo S. Travis Mayo
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ADDENDUM

RE # 1 3
9 16 17 21 31
34 35

Document Complaint
Emergency Motion for Temporary Restraining Order and Prelim. Inj. Order
Notice of Appeal
Emergency Motion for Injunction Pending Appeal
Notice of Supplemental Fact Development
Response to Emergency Motion for Injunction Pending Appeal Notice of Filing of supplemental Fact Development
Order

Page ID # 1 177
221 252 254 283 406
570 575