Federal judge:What’s good for Kroger is good for churches

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NICHOLASVILLE, Ky. (WTVQ) – Noting what’s good for Kroger and Home Depot should be good for churches, a federal judge ruled in favor of a Nicholasville church wanting to hold in-person services this Sunday, against Gov. Beshear’s reopening plan.

In a 13-page ruling, Tabernacle Baptist Church won a temporary restraining order blocking enforcement of Gov. Andy Beshear’s ban of mass gatherings, including in-person religious services. (Read the ruling here tabernacle)

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In issuing his ruling, the judge admitted weighing rhe constitution versus public safety is difficult.

“The Constitution will endure. It would be easy to put it on the shelf in times like this, to be pulled down and dusted off when more convenient. But that is not our tradition. Its enduring quality requires that it be respected even when it is hard,” U.S. District Judge Greg Van Tatenhove wrote.

The ruling applies to all churches in the state as long as they follow CDC health and safety guidelines concerning the coronavirus.

This is the second church in the state to sue over the order. In the first lawsuit, it was ruled the ban on in-person services was constitutional.

In the ruling, the judge noted the coronavirus pandemic created uncharted territory and issues for the courts.

“The Supreme Court has held ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’
This is precisely what Tabernacle alleges: violation of its First Amendment rights, specifically its right to exercise its religion and the right to freely
assemble. Sixth Circuit precedent establishes that, ‘when a party seeks a
preliminary injunction on the basis of a . . . violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor.’
Of course, ‘[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.’ The question becomes, then, whether the mass gathering prohibition issued by Governor Beshear amounts to ‘reasonable conditions’ on Kentuckians’ constitutional right to free exercise of their sincerely-held religious beliefs. Context is important. The orders at issue do not simply restrict religious expression; they restrict religious expression in an attempt to protect the public health during a global pandemic. As a result, the Court is tasked with identifying precedent in unprecedented times,” Van Tatenhove said.

Citing other cases both related to the coronavirus and other situations in U.S. history, the court examined the arguments on several fronts, including the recent case involving Maryville Baptist Church, where a different judge allowed the ban on in-person services.

“Maryville Baptist does not decide this case, but it is indicative of what might come. It follows that the prohibition on in-person services should be
enjoined as well. The restrictions which the Sixth Circuit criticized as ‘inexplicably applied to one group and exempted from another’ are the same restrictions Tabernacle challenges today. And, as the Sixth Circuit recognized,’“many of the serial exemptions for secular activities pose comparable public health risks to worship services.’

“The prohibition on mass gatherings is not narrowly tailored as required by Lukumi. There is ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking. If social distancing is
good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection,” Van Tatenhove wrote.

“Finally, the Court is cognizant that absent a temporary restraining order today, congregants Tabernacle Baptist will be forced to forego in-person service this Sunday. Tabernacle states it ‘is committed to physically gathering its congregants in person in its sanctuary in a manner consistent with social distancing precautions in order to ensure the safety and well-being of its congregants.’ And, should they be permitted to gather, Tabernacle has said it will follow the Center for Disease Control’s guidelines on mass gatherings,” he continued.

“Defendants are enjoined from enforcing the prohibition on mass gatherings with respect to any in-person religious service which adheres to applicable social distancing and hygiene guidelines,” Van Tatenhove ruled Friday evening.

Attorneys for the state and churches will hold a telephone conference Monday morning to discuss and expedited review process for formally deciding the case.

Earlier Friday, Beshear’s administration posted guidelines for churches to resume in-person services starting May 20. That decision could make the actual court proceedings moot.

Attorney General Daniel Cameron released a statement reacting to the ruling, siding with the churches, saying Beshear’s order was unconstitutional.

“The rulings should serve as a reminder that the pillars of our nation stand strong even in the midst of a crisis and are not to be ignored, cast aside, or downplayed, regardless of the circumstances,” he said.

He also added, while the rulings protect the First Amendment right of Kentuckians, careful consideration should take place before people go back to in-person churches.