No. 20-5427 IN THE UNITED STATES COURT OF ...lc.org/063020MaryvilleBaptistOpeningBrief.pdfIn Case No. 3:20-cv-00278 before The Honorable David J. Hale BRIEF OF PLAINTIFFS–APPELLANTS

No. 20-5427

IN THE 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

In Case No. 3:20-cv-00278 before The Honorable David J. Hale

BRIEF OF PLAINTIFFS–APPELLANTS

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

[email protected] | [email protected]


Attorneys for Plaintiffs–Appellants

Case: 20-5427 Document: 39 Filed: 06/30/2020 Page: 1

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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

DISCLOSURE STATEMENT ................................................................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES .................................................................................... vi

REASONS WHY ORAL ARGUMENT SHOULD BE HEARD ............................ xi

JURISDICTION ......................................................................................................... 1

ISSUES PRESENTED FOR REVIEW ..................................................................... 1

STATEMENT OF THE CASE .................................................................................. 3

I. FACTS. ............................................................................................................ 3

A. Restrictions and Exemptions Under Governor Beshear’s Orders. ........ 3

B. Governor Beshear’s Threatened Enforcement Against Churches. ....... 5

C. Governor Beshear’s Enforcement Against Maryville Appellants

Even as They Employed Sanitization and Distancing Measures. ......... 6

II. PROCEDURAL HISTORY. ........................................................................... 8

A. District Court Proceedings and Order on Appeal. ................................ 8

B. Course of Appeal and 10-Day Evolution of Governor Beshear’s

Orders. ................................................................................................. 10

1. April 30: The Governor announces future changes to his

worship ban. .............................................................................. 10

2. April 30: Maryville Appellants seek an emergency IPA from

this Court, and the Court grants the IPA as to drive-in

services. ..................................................................................... 11

3. May 8: This Court consolidates appeals and requests updates

on outstanding IPA motions...................................................... 12

4. May 8: The Governor publishes the new worship

requirements he previously announced. .................................... 13


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5. May 8: The district court grants the IPA—and a PI—as to in-

person worship services. ........................................................... 14

6. May 8: The Eastern District of Kentucky issues statewide

TRO restraining enforcement of Governor’s Orders as to in-

person worship services. ........................................................... 14

7. May 9: This Court grants IPA for in-person worship services

at Maryville Appellants’ church. .............................................. 15

8. May 10: The Governor accelerates imposition of worship

requirements and guidelines. .................................................... 15

SUMMARY OF THE ARGUMENT ...................................................................... 17

STANDARD OF REVIEW ..................................................................................... 18

ARGUMENT ........................................................................................................... 18

I. THIS COURT HAS JURISDICTION TO ADJUDICATE MARYVILLE

APPELLANTS’ APPEAL FROM THE DISTRICT COURT’S TRO/PI

ORDER. ......................................................................................................... 18

A. This Court’s Limited Remand to the District Court Did Not Permit

the District Court to Grant a PI as to In-Person Worship Services. .... 18

B. The Governor’s New Worship Guidelines 1.1 Do Not Moot This

Case Because the Governor Has Not Even Attempted to Carry His

Heavy Burden of Making Absolutely Clear That He Cannot Revert

Back to the Worship Ban in the Unexpired March 19 Gatherings

Order Which the Governor Has Vigorously Defended to the District

Court and This Court. .......................................................................... 20

II. MARYVILLE APPELLANTS ARE LIKELY TO SUCCEED ON THE

MERITS OF THEIR CONSTITUTIONAL AND STATUTORY CLAIMS

AGAINST THE GOVERNOR’S EXECUTIVE ORDERS. ......................... 22

A. The Governor’s Orders Violate Maryville Appellants’ Free Exercise

Rights Under the First Amendment by Restricting Worship at Their

Church Even as the Orders Permit Provision of Social Services at

Their Church and Otherwise Exempt Myriad Business and Non-

Religious Activities from Numerical Limits. ...................................... 22


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1. This Court’s recent precedents and others hold that restricting

religious gatherings while exempting myriad non-religious

gatherings violates the First Amendment. ................................ 23

a. Roberts, Maryville, First Pentecostal Church, and

Berean Baptist. ............................................................... 23

b. Other cases granting injunctions. ................................... 28

2. The Governor’s Orders Substantially Burden Maryville

Appellants’ Free Exercise of Religion. ..................................... 31

3. The Orders are subject to strict scrutiny under Smith and

Lukumi because they are neither neutral nor generally

applicable. ................................................................................. 33

a. The Orders fail neutrality and general applicability

because prohibited worship is not more dangerous than

permitted social services at the same church or

permitted shopping or working in supermarkets, liquor

stores, or warehouse stores. ............................................ 34

b. The Orders fail both neutrality and general

applicability because of the Governor’s selective

enforcement. ................................................................... 38

c. Under Smith, even generally applicable laws are

subject to strict scrutiny when hybrid rights exist. ......... 41

4. The Orders Cannot Withstand Strict Scrutiny. ......................... 41

5. Recent decisions denying injunctions erroneously apply

Smith or treat the century-old Jacobson as a pandemic

exception to free exercise principles. ........................................ 46

6. If Smith blocks Maryville Appellants’ vindication of their free

exercise rights, then Smith should be reconsidered. ................. 51

B. The Governor’s Orders Violate Maryville Appellants’ Free Exercise

Rights, and Cannot Survive Strict Scrutiny, Under KRFRA. ............. 52

C. The Orders Unconstitutionally Restrict Maryville Appellants’ Free

Speech and Assembly Rights Based on Content. ............................... 53


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D. The Orders Are Unconstitutionally Vague. ........................................ 55

III. MARYVILLE APPELLANTS SATISFY THE REMAINING

PRELIMINARY INJUNCTION REQUIREMENTS. .................................. 57

A. Maryville Appellants Have No Adequate Remedy at Law and Will

Suffer Irreparable Harm if a Preliminary Injunction Is Denied. ......... 57

B. The Balance of Harms and Public Interest Favor a Preliminary

Injunction. ............................................................................................ 58

CONCLUSION ........................................................................................................ 59

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS .......... 60

CERTIFICATE OF SERVICE ................................................................................ 61

ADDENDUM I

Designation of Relevant District Court Documents ................................... A-1

ADDENDUM II

Soos v. Cuomo, No. 1:20-cv-651 (GLS/DJS), slip op.

(N.D.N.Y. June 26, 2020)...................................................................... A-3


vi

TABLE OF AUTHORITIES

Cases

ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) ............................................ 58

ACLU of Ill. v. White, 2009 WL 5166231 (N.D. Ill. Dec. 23, 2009) ....................... 54

Ashcroft v. ACLU, 542 U.S. 656 (2004) ............................................................. 42,43

Barefoot v. Estelle, 463 U.S. 880 (1983) ................................................................. 50

Berean Baptist Church v. Cooper, No. 4:20-cv-81-D,

2020 WL 2514313 (E.D.N.C. May 16, 2020) ..................... 26,27,28,33,44,45,48

Bernal v. Fainter, 467 U.S. 216 (1984) ................................................................... 42

B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293 (3d Cir. 2013) ............ 50

Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) ........................................ 43

Burson v. Freeman, 504 U.S. 191 (1992) ................................................................ 42

Christa McAuliffe Intermediate Sch. PTO, Inc. v. de Blasio,

364 F. Supp. 3d 253 (S.D.N.Y. 2019) ................................................................ 40

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) ..................................................... 1,22,24,27,28,33,34,35,36

Elim Romanian Pentecostal Church v. Pritzker,

No. 20-1811, 2020 WL 3249062 (7th Cir. June 16, 2020) ...................... 21,47,50

Elrod v. Burns, 427 U.S. 347 (1976) ....................................................................... 57

Emp’t Div. v. Smith, 494 U.S. 872 (1990) ................................ 24,33,41,46,47,51,52

Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1 (1947) ....................................... 1

Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007) ....... 21

First Baptist Church. v. Kelly, No. 20-1102-JWB,

2020 WL 1910021 (D. Kan. Apr. 18, 2020) ................................... 28,29,45,46,49


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First Pentecostal Church v. City of Holly Springs, Miss.,

959 F.3d 669 (5th Cir. 2020) .............................................................................. 23

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,

528 U.S. 167 (2000) ............................................................................................ 21

Fulton v. Philadelphia, Pa., 140 S. Ct. 1104 (2020) ............................................... 52

Gillette v. United States, 401 U.S. 437 (1971) ........................................................ 27

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) ............................................................................................ 42

Grayned v. City of Rockford, 408 U.S. 104 (1972) ................................................. 57

Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) ...................................................... 40

H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir. 2009) .............. 54

Hill v. Colorado, 530 U.S. 703 (2000) .................................................................... 55

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ............................30,46,47,48,49,51

Joelner v. Vill. of Washington Park, 378 F.3d 613 (7th Cir. 2004) ......................... 58

Jones v. Caruso, 569 F.3d 258 (6th Cir. 2009) ........................................................ 58

Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634 (2019) ........................................ 52

Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius,

571 U.S. 1171 (2014) .......................................................................................... 50

Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969) ............................................. 58,59

Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020)

[Maryville IPA] ..................................................... 11,12,15,18,23,33,35,46,47,48

Maryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH-RSE,

2020 WL 2393359 (W.D. Ky. May 8, 2020) ................................................ 29,33

McCullen v. Coakley, 134 S. Ct. 2518 (2014) ......................................................... 43


viii

On Fire Christian Ctr., Inc. v. Fisher, No. 3:20-CV-264-JRW, 2020 WL

1820249 (W.D. Ky. Apr. 11, 2020) ......... 6,28,30,31,32,36,39,42,45,46,48,58,59

Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio Sup. Ct.,

769 F.3d 447 (6th Cir. 2014) .............................................................................. 18

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ............................................... 53,54

Republican Party of Minn. v. White, 536 U.S. 765 (2002) ...................................... 42

Ritter v. Hughes Aircraft Co., 58 F.3d 454 (9th Cir. 1995) ..................................... 40

Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020)

[Roberts IPA] ......................................... 15,18,20,23,24,25,26,27,33,46,47,48,50

Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015) ........................... 41,42

Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115 (1989) ................................... 43

Sherbert v. Verner, 374 U.S. 398 (1963) ................................................................. 48

Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) .................................................... 43

Soos v. Cuomo, No. 1:20-cv-651 (GLS/DJS),

slip op. (N.D.N.Y. June 26, 2020) ................................................................. 31,41

South Bay United Pentecostal Church v. Newsom,

959 F.3d 938 (9th Cir. 2020) .............................................................................. 46

South Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020) .................................................................... 46,47,49,50,51

S. La. Area Rate Cases v. Fed. Power Comm'n, 428 F.2d 407 (5th Cir. 1970) ...... 40

Spell v. Edwards, No. 20-30358, 2020 WL 3287239 (5th Cir. June 18, 2020) ...... 41

Sweezy v. New Hampshire, 354 U.S. 234 (1957) .................................................... 48

Tabernacle Baptist Church, Inc. of Nicholasville, Ky. v. Beshear,

No. 3:20-cv-00033-GFVT,

2020 WL 2305307 (W.D. Ky. May 8, 2020) ................................. 14,15,29,30,46


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Thomas v. Rev. Bd. of Ind. Emp. Security Div., 450 U.S. 707 (1981) ..................... 32

United States v. Maldonado-Rios, 790 F.3d 62 (1st Cir. 2015) .............................. 20

Constitutional Provisions

U.S. Const. amend I ..........................................................................................passim

U.S. Const. amend. XIV ............................................................................................ 8

Statutes

28 U.S.C. § 1292 ........................................................................................................ 1

28 U.S.C. § 1331 ........................................................................................................ 1

28 U.S.C. § 1343 ........................................................................................................ 1

28 U.S.C. § 1367 ........................................................................................................ 1

42 U.S.C. Ch. 21C (RLUIPA) ................................................................................... 8

Kentucky Religious Freedom Restoration Act (KRFRA),

KRS § 446.350 .................................................................................. 8,17,32,52,53

Other Authorities

6th Cir. R. 26.1 ............................................................................................................ i

6th Cir. R. 28 ......................................................................................................... A-1

6th Cir. R. 30 ......................................................................................................... A-1

6th Cir. R. 34 ............................................................................................................. ix

Brief of Amici Curiae Ten Legal Scholars in Support of Petitioner,

Ricks v. Id. Contractors Bd., S. Ct. No. 19-66 ................................................... 52

Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice

& Procedure (2d ed. 1995) ................................................................................. 57

Fed. R. App. P. 12 .................................................................................................... 20


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Fed. R. App. P. 26.1 .................................................................................................... i

Fed. R. App. P. 32 .................................................................................................... 60

Fed. R. App. P. 34 ..................................................................................................... xi

Fed. R. Civ. P. 62.1 .................................................................................................. 20

Fed. R. Evid. 201 ..................................................................................................... 40

Governor Andy Beshear (@GovAndyBeshear), Twitter

(June 5, 2020, 8:30 PM)...................................................................................... 40

Hebrews.................................................................................................................... 31

Jordan Hensley, Protesters march from downtown to Capitol grounds to

bring awareness to police brutality, racism, The State Journal

(June 6, 2020, 1:11 PM)...................................................................................... 39

Matthew ............................................................................................................... 31,35

Stephen Siegel, The Origins of the Compelling State Interest Test and Strict

Scrutiny, 48 Am. J. Legal History 355 (2008) .................................................... 48


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REASONS WHY ORAL ARGUMENT SHOULD BE HEARD

Pursuant to Fed. R. App. P. 34(a) and 6th Cir. R. 34(a), Plaintiffs–Appellants

respectfully request that oral argument be permitted in this appeal because it would

assist the Court in understanding and deciding the weighty constitutional issues

presented by Governor Beshear’s COVID-19 executive orders, which impose unique

and unprecedented restrictions on Plaintiffs–Appellants’ rights to gather for

religious worship in a time of uncertainty.


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JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) in this appeal

from a district court order denying a preliminary injunction, entered April 18, 2020

(RE.9, the “TRO/PI Order”). Plaintiffs–Appellants MARYVILLE BAPTIST

CHURCH, INC. and DR. JACK ROBERTS (collectively, the “Maryville

Appellants”) timely filed their notice of appeal on April 24, 2020. (RE.16.) The

district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.

ISSUES PRESENTED FOR REVIEW

The issues presented to this Court are of grave importance to “the Nation's

essential commitment to religious freedom,” Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah, 508 U.S. 520, 524 (1993), especially in the current times of

pandemic and uncertainty. Both the Constitution and the Supreme Court have

addressed these issues in absolute terms: “Neither a state nor the Federal

Government can set up a church. . . . Neither can force nor influence a person to go

to or to remain away from a church against his will . . . .” Everson v. Bd. of Educ.

of Ewing Twp., 330 U.S. 1, 15 (1947) (emphasis added). There is no pandemic pause

button or exception to the Constitution.

This case, challenging unconstitutional executive orders restricting religious

worship, and this appeal from the denial of a preliminary injunction against those

orders, have covered much ground in a short time. Although this Court and the


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district court have both entered injunctions against enforcement of the orders for the

duration of this appeal, Governor Beshear’s COVID-19 emergency declaration and

ensuing orders remain in effect and are evolving, and Maryville Appellants continue

to worship each Sunday under the cloud of the orders’ discriminatory restrictions

and uncertain arbitrary enforcement. While myriad businesses and non-religious

activities remain free of restrictions, and Maryville Appellants are permitted to freely

use their church property for the Governor’s approved, non-religious purposes,

Maryville Appellants require preliminary injunctive relief from this Court to secure

their rights to worship on their church property according to conscience and their

sincerely held beliefs. These issues are presented for review:

1. Whether the district court erred in—

a. Denying Maryville Appellants’ motion for preliminary

injunction;

b. Holding Appellants are not likely to succeed on the merits of

their claims that the Governor’s orders violate their rights under the Free

Exercise Clause of the First Amendment;

c. Holding Appellants are not likely to succeed on the merits of

their claims that the Governor’s orders violate their rights under the Kentucky

Religious Freedom Restoration Act (KRFRA); and


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d. Holding Appellants are not likely to succeed on the merits of

their claims that the Governor’s orders violate their rights of free speech and

assembly under the First Amendment; and

2. Whether the Governor’s orders are unconstitutionally vague.

STATEMENT OF THE CASE

I. FACTS.

A. Restrictions and Exemptions Under Governor Beshear’s

Orders.

Governor Beshear and his cabinet agencies have issued and amended a series

of executive orders and pronouncements in response to COVID-19 (the “Orders”),

extensively restricting when, where, and how Kentuckians may exercise their

liberties, including gathering for religious worship according to conscience, while

exempting myriad businesses and non-religious activities from gathering

restrictions. Most relevant to this appeal are the following:

• The Governor’s Executive Order (EO) 2020-15 issued March 6, 2020,

declaring a “State of Emergency” which does not expire until the Governor says so

(RE.1-2, PageID## 56–58);

• The March 17 Order of the Cabinet for Health and Family Services

(CHFS), issued pursuant to EO 2020-15, closing “public-facing businesses that

encourage public congregation” such as entertainment, recreational, gym, and salon


4

facilities, but exempting numerous businesses and facilities that implement social

distancing “to the extent practicable” (RE.1-4, PageID## 62–63);

• The CHFS March 19 Order (or, the “Gatherings Order”), issued

pursuant to EO 2020-15, prohibiting “mass gatherings,” ambiguously defined to

“include any event or convening that brings together groups of individuals,” and

including as examples “community, civic, public, leisure, faith-based, or sporting

events; parades; concerts; festivals; conventions; fundraisers; and similar activities,”

but exempting from any numerical limit “normal operations at airports, bus and train

stations, medical facilities, libraries, 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” (“to the extent practicable”)

(RE.1-5, PageID## 66–67);

• The Governor’s EO 2020-246 issued March 22, closing “all in-person

retail businesses that are not life-sustaining,” but exempting, with no numerical

limit, “[l]ife-sustaining retail businesses” such as “grocery stores, pharmacies,

banks, hardware stores, and other businesses that provide staple goods,” including

liquor stores, warehouse clubs, supercenters, and professional offices, subject only

to “social distancing and hygiene guidance” as “practicable” and “when possible;”

reaffirms “[a]ll prior Executive Orders, and Orders issued by Cabinets pursuant to


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Executive Order 2020-215,” including the Gathering Order (RE.1-6, PageID## 68–

71);

• The Governor’s EO 2020-257 issued March 25, closing “[a]ll

businesses that are not life-sustaining,” but exempting from any numerical limit 19

expansive categories of commercial and non-religious activities as “Life-Sustaining

Businesses,” including businesses designated life-sustaining in EO 2020-246, supra,

and also including manufacturing, distribution, shipping, transportation,

construction, financial services, professional services (legal, accounting, insurance,

real estate, etc.), hotels, laundry services, media, food and beverage (“[c]arry-out,

delivery, and drive-through”), and “[b]usinesses and religious and secular nonprofit

organizations . . . when providing food, shelter, and social services, and other

necessities of life for economically disadvantaged or special populations [and]

individuals who need assistance as a result of this emergency,” subject to following

“social distancing and hygiene guidance” as “practicable” and “when possible;”

reaffirms “[a]ll prior Executive Orders, and Orders issued by Cabinets pursuant to

Executive Order 2020-215,” including the Gathering Order (RE.1-7, PageID## 73–

78).

B. Governor Beshear’s Threatened Enforcement Against

Churches.

On Good Friday, April 10, in reliance on the Orders, Governor Beshear

specifically threatened criminal sanctions and mandatory quarantines against Easter


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Sunday worshippers who showed up for church in Kentucky. (V.Compl., RE.1,

PageID## 2, 11–12; RE.1-9, PageID## 92–93; Stip., RE.29, PageID## 399–400.)

That same day, and the day before, the Louisville Mayor threatened Easter

churchgoers with criminal enforcement of the Governor’s Orders, stating he would

“use the police to deter and disburse” religious gatherings and had requested the

police to “record license plates of all vehicles in attendance,” and that public health

officials would contact and instruct individuals to self-quarantine under the threat of

criminal sanction—“‘We’re saying no church worshipping, no drive-throughs.’” See

On Fire Christian Ctr., Inc. v. Fisher, No. 3:20-CV-264-JRW, 2020 WL 1820249,

at *4–5 (W.D. Ky. Apr. 11, 2020) [hereinafter On Fire].

On Saturday, April 11, Judge Justin R. Walker of the Western District of

Kentucky issued a TRO enjoining the Louisville Mayor from “enforcing, attempting

to enforce, threatening to enforce, or otherwise requiring compliance with any

prohibition on drive-in church services” at the plaintiff’s church. See On Fire, 2020

WL 1820249, at *1.

C. Governor Beshear’s Enforcement Against Maryville

Appellants Even as They Employed Sanitization and

Distancing Measures.

But Governor Beshear actually did to Maryville Appellants what the

Louisville Mayor only threatened: On Easter Sunday, April 12, as Maryville

Appellants were conducting worship services at their church, the Kentucky State


7

Police were dispatched to issue notices to 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. (RE.1, PageID## 2–4, 12–16; RE.1-10, PageID## 98–100; RE.1-11,

PageID# 103; RE.29, PageID# 400.)

The State Police action was followed by CHFS 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. (RE.1, PageID## 16–17;

RE.1-12, PageID## 104–105; RE.29, PageID# 400.) Also on Easter Sunday,

however, the Walmart and Kroger shopping centers less than one mile from the

church accommodated hundreds of cars in their lots and persons in their stores, but

the Governor did not target them for enforcement action. (RE.1, PageID## 19–21;

RE.1-10, PageID## 100–102.)

During their Easter Sunday service, Maryville Appellants promoted, and their

congregants observed, the Orders’ social distancing and hygiene guidance applicable

to “life-sustaining” entities, and they plan to continue doing so. (RE.1, PageID# 17;

Decl., RE25-3, PageID## 380–81.) Maryville Appellants also conducted a “drive-

in” service by broadcasting their service over a loudspeaker in the church’s parking

lot. (RE.1, PageID## 17–18.) No person inside the church or in its parking lot was

known or observed to be infected by or symptomatic of COVID-19. (RE.1,

PageID# 18.)


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II. PROCEDURAL HISTORY.

A. District Court Proceedings and Order on Appeal.

Having been targeted for police action on Easter Sunday, April 12, and having

received the subsequent CHFS self-quarantine letters on April 15, Maryville

Appellants sued the Governor on Friday, April 17 to restrain his enforcement of the

Orders ahead of their next Sunday service. (RE.1, PageID## 2–4.) Their Verified

Complaint for Declaratory Relief, Temporary Restraining Order, Preliminary and

Permanent Injunctive Relief, and Damages (RE.1) challenged the Governor’s Orders

on several grounds, including that they violate Maryville Appellants’ First

Amendment rights of free exercise of religion, freedom of speech, and freedom of

assembly (and the cognate provisions of the Kentucky Constitution), their rights

under the Establishment Clause of the First Amendment and the Equal Protection

Clause of the Fourteenth Amendment, and their statutory rights under the federal

Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Kentucky

Religious Freedom Restoration Act (KRFRA). (RE.1, PageID## 27–47.)

At the same time, Maryville Appellants filed their Emergency Motion for

Temporary Restraining Order and Preliminary Injunction (RE.3, “TRO/PI Motion”),

in which they pressed their free exercise, speech, and assembly claims under the

First Amendment, and their KRFRA claims, in seeking a temporary restraining order

(TRO) and preliminary injunction (PI) restraining and enjoining the Governor from


9

enforcing and applying his Orders which purported to prohibit Maryville Appellants

and their congregants, on pain of criminal sanctions and mandatory, household-wide

quarantines, from gathering for in-person or even “drive-in” worship services at their

church, regardless of whether they met or exceeded the distancing and hygiene

guidelines pursuant to which the Orders disparately and discriminatorily allowed so-

called “life-sustaining” commercial and non-religious entities (e.g., liquor stores,

warehouse clubs, and supercenters) to accommodate large crowds, masses, or

gatherings of persons without scrutiny or numerical limit. (TRO/PI Motion, RE.3,

PageID## 177–202.)

On Saturday, April 18, the district court denied the TRO and indicated a

forthcoming “expedited briefing and hearing schedule” on the requested PI. (RE.9,

“TRO/PI Order,” PageID## 221–27.) The court held Maryville Appellants were

unlikely to succeed on the merits of their First Amendment and KRFRA claims.

(TRO/PI Order, RE.9, PageID## 223–26.) On the First Amendment claims, the court

concluded the Governor was justified in prohibiting responsibly distanced and

sanitized worship services, even as the Governor’s Orders permitted unlimited

numbers of patrons at liquor, warehouse, and supercenter stores, based on the court’s

dual assumptions that retail patrons would “move around the store individually—

subject to strict social distancing guidelines,” but that congregants would

intentionally disregard such guidelines to effectuate “by design” a “communal” and


10

“large group” experience. (RE.9, PageID## 223–25.) On the KRFRA claims, even

after acknowledging the Governor’s evidentiary burden under the statutory strict

scrutiny standard, the district court concluded Maryville Appellants failed to prove

other states’ worship exemptions from COVID-19 restrictions were “equally

effective in preventing the spread of the disease.” (RE.9, PageID## 225–26.)

By the following Friday, April 24, the district court had not scheduled briefing

or a hearing on the PI, so Maryville Appellants appealed to this Court from the

TRO/PI Order as having effectively denied the PI. (RE.16, PageID# 252), and

moved the district court for an emergency injunction pending appeal (IPA) (RE.17,

PageID## 254–57). On April 29, the Kentucky Attorney General filed an amicus

brief in support of the IPA. (RE.20-2.)

B. Course of Appeal and 10-Day Evolution of Governor

Beshear’s Orders.

1. April 30: The Governor announces future

changes to his worship ban.

On April 30, the Thursday following Maryville Appellants’ appeal to this

Court, the Governor advised the district court of forthcoming parameters for “faith-

based organizations . . . to have in-person services at a reduced capacity, with social

distancing, and cleaning and hygiene measures implemented and followed,” to be

effective on May 20, 2020—20 days, and 3 Sundays later. (RE.21, PageID# 283.)

The Governor did not, however, walk back any enforcement threats already made,


11

or actions already taken against Maryville Appellants, or otherwise relax the worship

prohibitions already in effect.

2. April 30: Maryville Appellants seek an

emergency IPA from this Court, and the Court

grants the IPA as to drive-in services.

The same day, not having received any relief or order on their district court

IPA motion, and with another Sunday approaching, Maryville Appellants moved for

an emergency IPA in this Court. (Doc. 4-1.) The Kentucky Attorney General filed

an amicus brief in support of the IPA (Doc. 6), and the Governor filed a response in

opposition to the IPA (Doc. 13-1). The Court granted the IPA, in part, on Saturday,

May 2. (Doc. 20 (published at Maryville Baptist Church, Inc. v. Beshear, 957 F.3d

610 (6th Cir. 2020) [hereinafter Maryville IPA]).)

In the Maryville IPA, the Court first determined it had jurisdiction, despite the

general rule against taking appeals from the denial of a TRO, both because of the

exigent circumstances (the next day’s Sunday service) and because the TRO/PI

Order had “the practical effect of denying the Church’s motion for a preliminary

injunction.” 957 F.3d at 612. The Court then applied the familiar “four factors” in

partially granting the IPA. Id. at 612–16.

The Court concluded, “The Church is likely to succeed on its state and federal

claims, especially with respect to the ban’s application to drive-in services,” id. at

612 (emphasis added), and that it is “unnecessary to dwell on the remaining three


12

factors,” id. at 615–16, with respect to drive-in services. As for in-person services,

however, the Court suggested an IPA was warranted, but indicated the district 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. Id.

at 612, 616. Thus, the Court enjoined “[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,” id. at 616, but charged the district court, “[i]n the near term,” with

resolution of Maryville Appellants’ district and circuit court IPA motions as to in-

person worship services, and “urge[d] the district court to prioritize resolution of the

claims in view of the looming May 20 date.” Id.

On the following Monday, May 4, in accordance with the Maryville IPA,

Maryville Appellants renewed their emergency IPA motion in the district court to

restrain enforcement of the Governor’s Orders as to in-person services. (RE.25.)

3. May 8: This Court consolidates appeals and

requests updates on outstanding IPA motions.

On May 8, this Court consolidated Roberts v. Neace, No. 20-5465, with

Maryville Appellants’ appeal, for submission to the same panel. (Doc. 23-2.) The

Roberts appellants include a regular congregant and two visitors of Maryville

Appellants’ church. (Doc. 23-2 at 2.) In a separate order, the Court requested


13

appellants in both cases to advise “whether they wish any pending motions, or

motions that may be filed in the future, to be resolved before [Sunday] May 10”

(Doc. 24-2 at 2), given that “[i]n Roberts, plaintiffs have moved for an injunction

pending appeal permitting them to attend in-person church services [and in]

Maryville, the district court has yet to rule on the plaintiffs’ motion to enjoin the

Governor’s mass-gatherings order as it applies to in-person faith-based services

while their appeal is pending.” (Id.) Respective appellants filed responses requesting

the Court’s resolution of their IPA motions. (Docs. 27, 28.)

4. May 8: The Governor publishes the new worship

requirements he previously announced.

Also on May 8, the Governor filed in the district court (RE.34) a notice of

filing his previously announced but unpublished “requirements” for “[a]llowing

places of worship to resume in-person services on May 20, 2020,” as an exception

to the March 19 Gatherings Order, stating in the notice that “[a]n Order

implementing the requirements will follow.” (RE.34 PageID# 570.) Attached to the

notice was the document, Requirements for Places of Worship, Version 1.0 (RE.34-

1, the “Worship Requirements 1.0”), providing that “places of worship will be

expected to meet the requirements below in order to reopen and remain open.”

(RE.34-1 PageID# 572 (emphasis added).) The Governor filed the Worship

Requirements 1.0 in this Court on the same day. (Docs. 29-1, 29-2.)


14

5. May 8: The district court grants the IPA—and a

PI—as to in-person worship services.

Also on May 8, the district court entered an order granting Maryville

Appellants’ renewed IPA motion (RE.35, the “IPA/PI Order”), enjoining “[t]he

Governor and other Commonwealth officials . . . from enforcing the ban 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.” (IPA/PI Order, RE.35, PageID## 575, 580.) The injunction acknowledged

the new Worship Requirements 1.0. (RE.35, PageID# 580 n.3.) The court concluded

that Maryville Appellants were now likely to succeed on their KRFRA and federal

constitutional claims challenging the Governor’s Orders. (RE.35, PageID## 575,

578–580.) The court also stated, however, “Given that the same issues are raised in

[Maryville Appellants’] initial motion for preliminary injunction, that motion [RE.3]

is likewise GRANTED.” (RE.35, PageID# 580.)

6. May 8: The Eastern District of Kentucky issues

statewide TRO restraining enforcement of

Governor’s Orders as to in-person worship

services.

Also on May 8, the Eastern District of Kentucky entered an Opinion and Order

granting motions for TRO and enjoining, statewide, Governor Beshear and Eric

Friedlander, in his official capacity as Acting Secretary of the Cabinet for Health

and Family Services, “from enforcing the prohibition on mass gatherings with


15

respect to any in-person religious service which adheres to applicable social

distancing and hygiene guidelines.” Tabernacle Baptist Church, Inc. of

Nicholasville, Ky. v. Beshear, No. 3:20-cv-00033-GFVT, 2020 WL 2305307, *6

(W.D. Ky. May 8, 2020) [hereinafter Tabernacle].

7. May 9: This Court grants IPA for in-person

worship services at Maryville Appellants’

church.

On May 9, this Court issued an IPA in Roberts (No. 20-5465 Doc. 33

(published at Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) [hereinafter Roberts

IPA])), enjoining Governor Beshear and other Commonwealth officials, “during the

pendency of this appeal, from enforcing orders prohibiting in-person 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.” 958 F.3d at

416.

8. May 10: The Governor accelerates imposition of

worship requirements and guidelines.

On May 10, 2020—after this Court’s Maryville IPA, the district court’s

IPA/PI Order, the Eastern District’s statewide TRO in Tabernacle, and this Court’s

Roberts IPA—Governor Beshear filed in this Court a notice (Doc. 31-1) of the CHFS

May 9 Order (Doc. 31-2), advising the Court that “faith-based organizations that

have in-person services must implement the Guidance for Places of Worship that

are attached to and incorporated by reference in the Order.” (Doc. 31-1 (emphasis


16

added).) Attached to the Order (Doc. 31-2) is the document, Guidelines for Places

of Worship, Version 1.1 (the “Worship Guidelines 1.1”). According to Governor

Beshear, the May 9 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. The Guidelines provide that places of

worship will be expected 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. The

Guidelines are mostly permissive, but . . . require that

places of worship having in-person services adhere to

social distancing and hygiene guidelines of the CDC and

public health officials.

(RE.38-1 PageID## 597–98 (emphasis added) (citations omitted).)

The Worship Guidelines 1.1 incorporate nearly all provisions of the

Governor’s previously filed Worship Requirements 1.0 (Doc. 29-2), with some

revisions. (Doc. 31-2.) Thus, the Worship Guidelines 1.1 accelerated to May 9 the

changes to the March 19 Gatherings Order the Governor previously announced

would not be effective until May 20.

The Worship Guidelines 1.1, which are imposed on houses of worship

specifically, and in addition to the “Healthy at Work Minimum Requirements”

imposed by the Governor on other businesses, purport to regulate and restrict choir

and congregational singing, to prohibit “youth services (including, but not limited

to, Sunday schools),” to require clergy and anyone singing to wear masks “over their


17

mouths and noses,” and to restrict attendance at in-person worship services to “33%

of the building occupancy capacity, including clergy and staff-employees,”

regardless of whether the required sanitization and social distancing can be

accomplished at a higher percentage of capacity. (RE.38-1, PageID# 586.)

SUMMARY OF THE ARGUMENT

Maryville Appellants are entitled to a preliminary injunction against

enforcement of the Governor’s Orders because the Orders violate Maryville

Appellants free exercise rights under the First Amendment and KRFRA by

discriminatorily treating their religious worship services differently from myriad

similarly situated non-religious gatherings, by discriminating between Calvary

Chapel’s social and charitable activities and religious worship activities in the same

building, and by the Governor’s individualized exemption from his Orders for mass

protests. The Orders also restrict Maryville Appellants’ free speech and assembly on

the basis of content in violation of the First Amendment. Maryville Appellants’ First

Amendment and KRFRA claims trigger strict scrutiny, which the Orders cannot

survive. Finally, the Orders are unconstitutionally vague because they provide no

reasonable opportunity to understand what conduct they prohibit, and they

encourage arbitrary and discriminatory enforcement, as exemplified by the

Governor.


18

STANDARD OF REVIEW

In an appeal from a district court’s denial of a PI involving First Amendment

claims, this Court reviews the district court’s legal conclusions, including First

Amendment applications, de novo, and the district court’s ultimate conclusion for an

abuse of discretion. See Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio

Sup. Ct., 769 F.3d 447, 454 (6th Cir. 2014) (“All this is to say: when we look at

likelihood of success on the merits, we independently apply the Constitution, but we

still defer to the district court's overall balancing of the four preliminary-

injunction factors.”). However, “[p]reliminary injunctions in constitutional cases

often turn on likelihood of success on the merits, usually making it unnecessary to

dwell on the remaining three factors.” Roberts IPA, 958 F.3d at 416.

ARGUMENT

I. THIS COURT HAS JURISDICTION TO ADJUDICATE MARYVILLE

APPELLANTS’ APPEAL FROM THE DISTRICT COURT’S TRO/PI

ORDER.

A. This Court’s Limited Remand to the District Court Did Not

Permit the District Court to Grant a PI as to In-Person

Worship Services.

In this Court’s Maryville IPA, covering drive-in services, the Court remanded

the case to the district court for the limited purpose of resolving Maryville

Appellants’ IPA motions as to in-person worship services. 957 F.3d at 616. The

district court, however, not only granted the IPA as to in-person services, but also


19

purported to grant a PI as to in-person services, as requested in Maryville Appellants’

original TRO/PI Motion to the district court. (RE.35, PageID# 580.) But the district

court’s denial of the original TRO/PI Motion—which this Court concluded had the

practical effect of denying the requested PI—is the order on appeal on which this

Court’s appellate jurisdiction depends. Thus, unless this Court relinquished

jurisdiction to the district court to decide the PI in addition to the IPA, the district

court had no jurisdiction to grant the PI.

In this Court’s May 8 Order requesting IPA updates from the respective

appellants in the consolidated appeals, the Court indicated that the district court’s

jurisdiction was limited to resolving Maryville Appellants’ IPA motions as to in-

person services: “In Maryville, the district court has yet to rule on the plaintiffs’

motion to enjoin the Governor’s mass-gatherings order as it applies to in-person

faith-based services while their appeal is pending.” (Doc. 24-2 at 2 (emphasis


20

added).) Thus, this Court retains (and never relinquished) jurisdiction over Maryville

Appellants’ appeal from the district court’s original denial of a PI.1

B. The Governor’s New Worship Guidelines 1.1 Do Not Moot

This Case Because the Governor Has Not Even Attempted to

Carry His Heavy Burden of Making Absolutely Clear That

He Cannot Revert Back to the Worship Ban in the Unexpired

March 19 Gatherings Order Which the Governor Has

Vigorously Defended to the District Court and This Court.

The new Worship Guidelines 1.1, which the Governor fast-tracked to an early

release during the course of this appeal (see supra Statement of the Case (“Stmt.”)

Part III.B.8), do not render moot this case or this appeal even though they ostensibly

relax the outright worship ban in the May 9 Gatherings Order. First, as shown in

Arg. Part II, infra, the Guidelines themselves violate Maryville Appellants’ rights.

Second, under the voluntary cessation doctrine, depriving this Court of jurisdiction

to determine the legality of the Governor’s Orders would require the Governor to

1 In the Roberts IPA the Court acknowledged without questioning the district

court’s “preliminarily enjoining the Governor from enforcing the orders’ ban on in-

person worship with respect to the same church at issue in our case.” 958 F.3d at

412. The Court may give effect to the district court’s PI ruling as an “indicative

ruling” under Fed. R. App. P. 12 and Fed. R. Civ. P. 62.1, even though the district

court did not have jurisdiction to make the ruling, and even though Maryville

Appellants did not request an indicative ruling under the applicable rules. See United

States v. Maldonado-Rios, 790 F.3d 62, 65 (1st Cir. 2015). And, although Maryville

Appellants do not request it, the Court may retain jurisdiction over this appeal while

remanding the case to the district court for the limited purpose of giving formal effect

to the court’s “indicative ruling” granting the PI. See id.


21

carry the formidable burden of proving he cannot revert back to his illegal policies

upon conclusion of the litigation, which is a burden the Governor has not yet even

attempted to carry in this Court.2 See Elim Romanian Pentecostal Church v. Pritzker,

No. 20-1811, 2020 WL 3249062, at *3 (7th Cir. June 16, 2020) (“It follows that the

dispute is not moot and that we must address the merits of plaintiffs challenge to

Executive Order 2020-32 even though it is no longer in effect.”); see also Friends

of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189

(2000). Third, the nature and timing of the COVID-19 pandemic and the Governor’s

Orders in response fit this case “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).

2 The Governor has moved to dismiss Maryville Appellants’ claims on various

grounds, including mootness, in the district court. (RE.38; RE.45.) But the Governor

has merely suggested mootness to this Court. (Doc. 31-1.) If the Governor attempts

to carry his burden to prove mootness in his answer brief, Maryville Appellants will

fully rebut mootness in their reply brief.


22

II. MARYVILLE APPELLANTS ARE LIKELY TO SUCCEED ON THE

MERITS OF THEIR CONSTITUTIONAL AND STATUTORY

CLAIMS AGAINST THE GOVERNOR’S EXECUTIVE ORDERS.

A. The Governor’s Orders Violate Maryville Appellants’ Free

Exercise Rights Under the First Amendment by Restricting

Worship at Their Church Even as the Orders Permit

Provision of Social Services at Their Church and Otherwise

Exempt Myriad Business and Non-Religious Activities from

Numerical Limits.

In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520

(1993) [hereinafter Lukumi], the Supreme Court held certain laws prohibiting

religious practices violated the First Amendment, concluding “that the laws in

question were enacted by officials who did not understand, failed to perceive, or

chose to ignore the fact that their official actions violated the Nation's essential

commitment to religious freedom.” 508 U.S. at 524. The same can be said of

Governor Beshear’s Orders, which establish a scheme of gathering restrictions and

exemptions that permit Maryville Appellants to assemble an unlimited number of

people in their church to provide and receive food, shelter, and counsel—as non-

religious social services—but prohibit religious preaching, communion, or other

worship in the same church with the same people. Moreover, the scheme of

restrictions and exemptions permit working, shopping, and patronizing myriad

businesses and non-religious activities involving groups and crowds of people, with

no numerical limits, while prohibiting religious worship services of any size. Thus,

the Orders discriminate between religious and non-religious activities among


23

similar groups of people, and even religious and non-religious services in the

same church with the same people. The disparate treatment (at best) or targeting

(at worst) of religion and religious services could not be clearer.

1. This Court’s recent precedents and others hold

that restricting religious gatherings while

exempting myriad non-religious gatherings

violates the First Amendment.

a. Roberts, Maryville, First Pentecostal

Church, and Berean Baptist.

In May, two circuit courts of appeal issued three injunctions against

enforcement of executive orders restricting worship services, including this Court’s

Maryville IPA and Roberts IPA enjoining Governor Beshear’s Orders. See Maryville

IPA, 957 F.3d at 616; Roberts IPA, 958 F.3d at 416; First Pentecostal Church v.

City of Holly Springs, Miss., 959 F.3d 669 (5th Cir. 2020) (granting IPA to

Mississippi church enjoining enforcement of Mississippi Governor’s order

restricting worship).

In the Roberts IPA, which “incorporate[s] some of the reasoning (and

language) from” the Maryville IPA, 958 F.3d at 412, this Court enjoined Governor

Beshear from enforcing his Orders prohibiting in-person worship services when

“serial exemptions for secular activities pose comparable public health risks.” 958

F.3d at 414, 416. Considering the appellants’ free exercise claims, the Court

recognized, “On one side of the line, a generally applicable law that incidentally


24

burdens religious practice usually will be upheld.” Id. at 413 (citing Emp’t Div. v.

Smith, 494 U.S. 872, 879–79 (1990)). But, the Court concluded the Governors’

Orders “likely fall on the prohibited side of the line,” where “a law that discriminates

against religious practices usually will be invalidated because it is the rare law that

can be ‘justified by a compelling interest and is narrowly tailored to advance that

interest.’” Id. (quoting Lukumi, 508 U.S. at 553).

Expanding on the problems with the Governor’s Orders, the Court explained,

Do the four pages of exceptions in the orders, and the

kinds of group activities allowed, remove them from

the safe harbor for generally applicable laws? We

think so. As a rule of thumb, the more exceptions to a

prohibition, the less likely it will count as a generally

applicable, non-discriminatory law. At some point, an

exception-ridden policy takes on the appearance and

reality of a system of individualized exemptions, the

antithesis of a neutral and generally applicable policy

and just the kind of state action that must run the

gauntlet of strict scrutiny.

Id. at 413–14 (cleaned up) (emphasis added). Continuing, the Court reasoned,

“Assuming all of the same precautions are taken, 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.” Id. at 414. Thus, the Court rejected the Governor’s suggestion “that

the explanation for these groups of people to be in the same area—intentional


25

worship—creates greater risks of contagion than groups of people, say, in an office

setting or an airport,” id. at 416, further explaining,

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 for similar lengths of time? It’s not

as if law firm office meetings and gatherings at airport

terminals always take less time than worship services.

Id.

The Court also rejected the notion that the Governor’s orders were justified

because congregants could simply worship online, reasoning,

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, or what it

means when “not forsaking the assembling of ourselves

together,” Hebrews 10:25.

[T]hat’s exactly what the federal courts are not to judge—

how individuals comply with their own faith as they see it.

Id. at 415–16 (citation omitted).

In awarding the injunction, the Court brought into sharp relief the Governor’s

disparate treatment of churchgoers under his Orders:

Keep in mind that the Church and its congregants just want

to be treated equally. . . . They are willing to practice social

distancing. They are willing to follow any hygiene

requirements. . . . The Governor has offered no good

reason for refusing to trust the congregants who


26

promise to use care in worship in just the same way it

trusts accountants, lawyers, and laundromat workers

to do the same.

Come to think of it, aren’t the two groups of people often

the same people—going to work on one day and going to

worship on another? How can the same person be

trusted to comply with social-distancing and other

health guidelines in secular settings but not be trusted

to do the same in religious settings? The distinction

defies explanation, or at least the Governor has not

provided one.

Id. at 414 (emphasis added).

A week after the Court’s Roberts IPA, the Eastern District of North Carolina

issued a TRO enjoining the North Carolina Governor from enforcing a 10-person

limit on religious worship because it violated the Free Exercise Clause. See Berean

Baptist Church v. Cooper, No. 4:20-cv-81-D, 2020 WL 2514313 (E.D.N.C. May 16,

2020) [hereinafter Berean Baptist]. In granting the TRO, the court noted upfront,

“There is no pandemic exception to the Constitution of the United States or the

Free Exercise Clause of the First Amendment.” 2020 WL 2514313, at *1

(emphasis added).

The North Carolina “stay at home” orders challenged in Berean Baptist

provided pages of “Essential Business and Operations” (EBOs) divided into 30

categories. Id. at *3. The orders categorized church worship services as EBOs, but

subjected worship services to a 10-person limit that was not imposed on any other

EBO. 2020 WL 2514313, at *4.


27

Although the North Carolina orders superficially treated religious worship the

same as other gatherings, the Berean Baptist court observed that the uniquely

restrictive 10-person limit for worship gatherings “represent[s] precisely the sort of

‘subtle departures from neutrality’ that the Free Exercise Clause is designed to

prevent.” Id. at *6 (quoting Gillette v. United States, 401 U.S. 437, 452 (1971)). The

court observed further,

Eleven men and women can stand side by side working

indoors Monday through Friday at a hospital, at a plant, or

at a package distribution center and be trusted to follow

social distancing and hygiene guidance, but those same

eleven men and women cannot be trusted to do the same

when they worship inside together on Saturday or Sunday.

“The distinction defies explanation . . . .”

Id. at *8 (quoting Roberts IPA, 958 F.3d at 414). Thus, the court concluded, “These

glaring inconsistencies between the treatment of religious entities and individuals

and non-religious entities and individuals take [the orders] outside the ‘safe harbor

for generally applicable laws.’” Id. (quoting Roberts IPA, 958 F.3d at 413).

Ultimately, in concluding the North Carolina orders could not pass strict

scrutiny, the Berean Baptist court recognized that the plaintiffs “simply want the

Governor to afford them the same treatment as they and their fellow non-religious

citizens receive when they work at a plant, clean an office, ride a bus, shop at a store,

or mourn someone they love at a funeral.” Id. at *9 (citing Lukumi, 508 U.S. at 546

(“The proffered objectives are not pursued with respect to analogous non-religious


28

conduct, and those interests could be achieved by narrower ordinances that burdened

religion to a far lesser degree.”)). The same is true here.

b. Other cases granting injunctions.

Twice in April, three times in May, and once (so far) in June, federal district

courts enjoined COVID-19 prohibitions on religious worship, including the district

court below in Maryville Appellants’ case. A month before Berean Baptist, supra,

the Western District of Kentucky issued a TRO in On Fire, enjoining enforcement

of Governor Beshear’s Orders as to drive-in church services following the Louisville

Mayor’s threatened police action against Easter churchgoers. 2020 WL 1820249, at

*1, 8 (emphasis added). (Stmt. Part II.B.)

On April 18, 2020, the District of Kansas issued a TRO enjoining enforcement

of a restriction on religious gatherings of more than 10 people, requiring the state to

treat worship services the same as exempted “essential” gatherings. See First Baptist

Church. v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, *6–7 (D. Kan. Apr. 18,

2020) [hereinafter First Baptist]. The First Baptist TRO specifically stated that the

government’s disparate treatment of religious gatherings violated the Free Exercise

Clause because it showed “religious activities were specifically targeted for more

onerous restrictions than comparable secular activities.” Id. at *7 (emphasis

added). The court concluded that restricting religious gatherings while permitting


29

other non-religious activities “show[s] that these executive orders expressly target

religious gatherings on a broad scale and are, therefore, not facially neutral.” Id.

On May 8, 2020, the Eastern and Western Districts of Kentucky held that

Governor Beshear’s prohibitions on in-person religious gatherings violated the First

Amendment. See IPA/PI Order (Stmt. Part III.B.5) (reported at Maryville Baptist

Church, Inc. v. Beshear, No. 3:20-cv-278-DJH-RSE, 2020 WL 2393359 (W.D. Ky.

May 8, 2020); Tabernacle (Stmt. Part II.B.6).

In the IPA/PI Order, the district court below granted Maryville Appellants an

IPA and PI3 enjoining enforcement of Governor Beshear’s Orders against in-person

worship services at their church. (RE.35 PageID## 575, 580.) The court had

previously denied a TRO (RE.9), but ruled for Maryville Appellants after concluding

the Governor failed to meet his narrow tailoring burden required by their

constitutional and KRFRA claims. (RE.35, PageID## 577–79 (“The Governor fails,

however, to present any evidence or even argument that there was no other, less

restrictive, way to achieve the same goals.”) (“He still ‘has offered no good reason .

. . for refusing to trust the congregants who promise to use care in worship in just

the same way [he] trusts accountants, lawyers, and laundromat workers to do the

same.’”).)

3 See supra Arg. Part I.A for discussion of district court’s lack of jurisdiction to

grant the PI.


30

In Tabernacle, the Eastern District of Kentucky issued a statewide TRO

enjoining the Governor from enforcing his prohibition on in-person religious

gatherings. 2020 WL 2305307, at *1, 6. The court observed that the First

Amendment does not “mean something different because society is desperate for a

cure or prescription.” Id. at *1. The court acknowledged that it was tasked with

“identifying precedent in unprecedented times,” id. at *4, but concluded, “‘even

under Jacobson [v. Massachusetts, 197 U.S. 11 (1905)], constitutional rights still

exist.’” Id. at *4 (quoting On Fire, 2020 WL 1820248, *15 (emphasis added)). In

fact, “while courts should refrain from second-guessing the efficacy of a state’s

chosen protective measures,” a government very well may “‘go so far beyond what

was reasonably required for the safety of the public, as to authorize or compel the

courts to interfere.’” Tabernacle, 2020 WL 2305307, at *4 (quoting Jacobson, 197

U.S. at 28 (emphasis added)).

It follows that the prohibition on in-person services

should be enjoined . . . . 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.

Tabernacle, 2020 WL 2305307, at *5 (emphasis added).


31

Finally, the June district court decision enjoining COVID-19 orders restricting

religious worship arose in the context of recent mass, race-related protests. In Soos

v. Cuomo, No. 1:20-cv-651 (GLS/DJS), slip op. (N.D.N.Y. June 26, 2020) (attached

hereto as Addendum II), the district court preliminarily enjoined executive orders

issued by the New York Governor and New York City Mayor, restricting worship

services, after both officials publicly encouraged protests that violated their orders.

Slip op. at 2–14, 31–32, 37–38. Applying Lukumi, the Soos court held the restrictions

were not generally applicable, and therefore had to satisfy strict scrutiny, because

some restrictions applied uniquely to religious worship as a practical matter, and

others were not applied to mass protests that clearly violated the restrictions. Slip

op. at 29–32.

2. The Governor’s Orders Substantially Burden

Maryville Appellants’ Free Exercise of Religion.

Maryville 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 assembling together, and that they are to do so even

more in times of peril and crisis. (RE.1, PageID## 31, 40–41, 44–46.) 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


32

means assembly.” Id. (cleaned up) (emphasis added). Governor Beshear’s

threatened and actual enforcement of the Orders, and imposition of the Worship

Guidelines 1.1, unquestionably and substantially burden Maryville Appellants’

religious practice of assembling together for worship, according to their sincerely

held beliefs.

Though Governor Beshear might not view church attendance as fundamental

to Maryville Appellants’ religious exercise—or “life-sustaining” on par with liquor

store or supercenter shopping—“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). The Kentucky Religious Freedom Restoration Act (KRFRA), KRS

§ 446.350, also prohibits the Governor 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.”

There can be no question that the Orders, on their face and as applied, have

imposed and continue to impose direct penalties on Maryville Appellants for the act

of attending church in conformance with their sincerely held religious beliefs. As

shown above (Stmt. Part II.B–C), not only did Governor Beshear threaten to penalize

Easter Sunday worshippers who attended church, even for drive-in services, but the


33

Kentucky State Police directly enforced the Orders against Maryville Appellants and

their congregants. Furthermore, the Worship Guidelines 1.1 only partially lift the

Governor’s restrictions on worship attendance, even as they impose new

requirements on Maryville Appellants’ worship practices—regulating and

restricting singing, youth services, and Sunday school, requiring masks for clergy

and choir, and restricting building occupancy. (Stmt. Part III.B.8.) Such restrictions

and penalties clearly and substantially burden Maryville Appellants’ religious

practice, triggering First Amendment and KRFRA protections.

3. The Orders are subject to strict scrutiny under

Smith and Lukumi because they are neither

neutral nor generally applicable.

The Governor’s Orders and their application against Maryville Appellants’

religious practices must be subjected to strict scrutiny under the First Amendment

because they 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. (See also supra, e.g., Roberts IPA, Maryville

IPA, Berean Baptist, and IPA/PI Order, Arg. Part II.A.1.)


34

a. The Orders fail neutrality and

general applicability because

prohibited worship is not more

dangerous than permitted social

services at the same church or

permitted shopping or working in

supermarkets, liquor stores, or

warehouse stores.

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 or subtly depart from neutrality by treating “faith-based” gatherings

differently from non-religious gatherings.

The Orders fail neutrality and general applicability on facial examination.

First, the Orders facially and broadly prohibit “mass gatherings” as “any event or

convening that brings together groups of individuals,” including “faith-based . . .

events,” but then expressly exempt a multitude of commercial and nonreligious

activities involving crowds that would otherwise fit the broad “mass gatherings”

definition (e.g., shopping or working at liquor, warehouse, and supercenter stores).

(Stmt. Part II.A.) Exempted gatherings are permitted if distancing and hygiene

guidelines are followed (“when possible” and to the extent “practicable”), but “faith-


35

based” gatherings are prohibited even if distancing and hygiene guidelines are

followed religiously. (Id.) And, while a church can gather at its own facility with

no numerical limit to provide non-religious, social services approved by the

Governor (e.g., food, shelter, or counseling for recovery, unemployment benefits,

etc.), subject only to following “social distancing and hygiene guidance” as

“practicable” and “when possible,” the same church cannot conduct a religious

worship service in its own facility under the same conditions. (Stmt. Part II.A.)

Even the decision to exclude religious worship services from the “life

sustaining” designation, while applying the designation to material social services

provided by religious and other organizations, is an inherently prejudiced

determination, and therefore not religiously neutral. In the biblical account of

Matthew, the devil tempted Jesus to command stones to become bread, to satisfy

mere physical hunger, but Jesus rebuked the devil by answering, “It is written, Man

shall not live by bread alone, but by every word that comes from the mouth of God.”

Matthew 4:3–4 (ESV) (internal quotation marks omitted); cf. Maryville IPA, 957

F.3d at 614 (“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 . . . .”). “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.”


36

Lukumi, 508 U.S. at 532 (emphasis added). Prohibiting Kentuckians from joining

others at a church for religious reasons, such as a worship service, while permitting

them to join others at the same church for non-religious reasons, such as giving or

receiving food, shelter, or counseling, “violat[es] the Free Exercise Clause beyond

all question.” On Fire, 2020 WL 1820249, at *6 (emphasis added).

Nor are the Orders generally applicable on their face, for many of the same

reasons they are not neutral. “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. To determine general applicability 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. 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 interests in a similar or greater degree” than the prohibited

religious conduct. Id. (emphasis added).


37

The Governor is utterly unable to demonstrate the difference in risk of

spreading COVID-19, if any, as between a congregant who spends an hour at a

socially-distanced worship service with a limited number of people (because of

distancing) whom the congregant knows and loves (which is prohibited), and a

shopper who spends an hour in a grocery store with unlimited other shoppers who

are likely strangers (which is allowed)—the Governor certainly cannot demonstrate

the worship service is riskier. Nor can the Governor demonstrate Maryville

Appellants’ socially-distanced worship services, standing in place for an hour or so

at a time, once per week on a Sunday (or perhaps twice per week if Wednesday

services are included), are riskier than any Walmart, working dozens of moving and

stationary employees together for hours at a time, cycling thousands of roving

customers through the building, with no shopping time limit—touching carts,

touching shelves, removing items from shelves and replacing them, following and

passing within 6 feet of other customers, giving money to and receiving change from

cashiers, touching point-of-sale machines—all day, 7 days a week. To be sure,

dozens, hundreds, or more employees can work at one time for one “life-

sustaining” business—e.g., Post Office hubs, Amazon warehouses, Home

Depots, Chase Bank processing centers, etc.—in one building, for 8, 10, 12 or

more hours at a time, 5, 6, or 7 days a week, subject only to the Orders’ “social

distancing and hygiene guidance” as “practicable” and “when possible.” Neither


38

logic nor common experience allow the conclusion that socially-distanced worship

services pose more risk than the myriad “life-sustaining” businesses and activities

that are exempt from numerical limit under the Orders.

Moreover, as represented to the Court by Governor Beshear, the May 9 Order

“requires” Maryville Appellants “to implement and follow” the Worship Guidelines

1.1 in order to have in-person worship services. (Stmt. III.B.8.) The Guidelines are

imposed on places of worship specifically, and not on any “life-sustaining” entities

which remain free from numerical limits under the Governor’s Orders, and the

Guidelines are imposed on places of worship in addition to the “Healthy at Work

Minimum Requirements” imposed by the Governor on “all entities in Kentucky.”

(Stmt. III.B.8.) Thus, the Orders single out places of worship for unique treatment

as compared both to “life-sustaining” entities such as liquor stores, supercenters, and

laundries, and to “all entities in Kentucky” subject to the “Minimum Requirements,”

and therefore are neither neutral with respect to religion nor generally

applicable.

b. The Orders fail both neutrality and

general applicability because of the

Governor’s selective enforcement.

The Governor’s Orders also fail neutrality and general applicability as

actually enforced. The Governor has not applied the Orders neutrally or generally.

Rather, Governor Beshear singled out religious worship gatherings in his Good


39

Friday threats, and the Kentucky State Police were only dispatched to Maryville

Appellants’ 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.

More recently, on June 5, the Governor praised and encouraged, in person, a

mass gathering of roughly 2,500 to 3,000 people assembled on the Frankfort Capitol

grounds to protest, even though they were in clear violation of the unexpired March

19 Gatherings Order. Jordan Hensley, Protesters march from downtown to Capitol

grounds to bring awareness to police brutality, racism, The State Journal (June 6,

2020, 1:11 PM), https://www.state-journal.com/news/protesters-march-from-

downtown-to-capitol-grounds-to-bring-awareness-to-police-brutality-racism/

article_4b69a118-a7a3-11ea-b889-cb0faa62a1fd.html. The protesters did not keep

distance from each other while visiting him:


40

Governor Andy Beshear (@GovAndyBeshear), Twitter (June 5, 2020, 8:30

PM), https://twitter.com/GovAndyBeshear/status/1269064159234338816.4 There is

no record of the Governor’s admonishing the Capitol protesters to go home, as “the

4 The Court may take judicial notice of the news report of the large public

protest and the Governor’s public address, see Fed. R. Evid. 201(b); Ritter v. Hughes

Aircraft Co., 58 F.3d 454, 459 (9th Cir. 1995) (news report of fact “generally known”

in jurisdiction and “capable of sufficiently accurate and ready determination”); S.

La. Area Rate Cases v. Fed. Power Comm'n, 428 F.2d 407, 438 n.98 (5th Cir. 1970)

(sentiments expressed in speeches by public officials), and the content of the

Governor’s Tweet about it, see Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir.

2017), vacated on other grounds, 138 S. Ct. 377 (2017); Christa McAuliffe

Intermediate Sch. PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253, 263 (S.D.N.Y. 2019).


41

only way we can ensure that your decision doesn’t kill someone else,” as he did on

Good Friday when addressing Easter churchgoers. (RE.1-9, PageID# 92.) It is

difficult to imagine a more selective and less neutral application of the Governor’s

Orders. See Soos, supra Arg. Part II.A.I.B; see also Spell v. Edwards, No. 20-30358,

2020 WL 3287239, at *4 (5th Cir. June 18, 2020) (Ho., J., concurring) (“If officials

are now exempting protesters, how can they justify continuing to restrict

worshippers? The answer is that they can’t.”)

c. Under Smith, even generally

applicable laws are subject to strict

scrutiny when hybrid rights exist.

Even if the Orders could be deemed neutral and generally applicable, strict

scrutiny still applies under Emp’t Div. v. Smith, 494 U.S. 872 (1990), when a

“hybrid” claim exists, involving a free exercise claim in conjunction with other

constitutional protections, such as freedom of speech.” See 494 U.S. at 881.

Maryville Appellants’ free exercise claims are such “hybrid” claims because they

are brought in conjunction with free speech and assembly claims (infra Part II.C)

and Establishment Clause claims (RE.1, PageID## 33–34).

4. The Orders Cannot Withstand Strict Scrutiny.

Because the Governor’s Orders and their discriminatory application trigger

strict scrutiny under the First Amendment, the Orders are subject to “the most

demanding test known to constitutional law,” Russell v. Lundergan-Grimes, 784


42

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

Governor permits regular large gatherings of persons for commercial and non-

religious purposes, or mass protest, while expressly prohibiting or restricting

Maryville Appellants’ “faith-based” gatherings, the Governor’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 interest unprohibited.” Republican

Party of Minn. v. White, 536 U.S. 765, 780 (2002) (emphasis added).

Whatever interest the Governor purports to claim, however, he cannot show

the Orders and their enforcement are narrowly tailored to be the least restrictive

means of protecting that interest. And it is the Governor’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


43

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).

To meet this burden, the government must show 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

Governor cannot meet the burden by showing “simply that the chosen route is

easier.” Id. at 2540. Thus, the Governor “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 Governor fails this test. The Governor first prohibited, then numerically

restricted religious gatherings, all the while expansively exempting from numerical


44

limits numerous businesses and non-religious entities, such as liquor, warehouse,

and supercenter stores, laundries, and professional offices. (Stmt. Part II.A.) The

Governor 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 Governor exempted the

non-religious gatherings and prohibited (then restricted and regulated) Maryville

Appellants’ church services. Even the new Worship Guidelines 1.1 are too little, too

late, for they continue to impose a percentage of capacity limitation on Maryville

Appellants that is not imposed on exempted, “life-sustaining” businesses and

activities.

Examples abound of less restrictive approaches that the Governor neither tried

nor considered. (RE.1, PageID## 22–23; RE.1-13 to 1-18, PageID## 106–175.)

Notably, 15 other Governors trusted the people of their

states and exempted religious gatherings from any

attendance limitations during this pandemic. The

Governor has failed to cite any peer-reviewed study

showing that religious interactions in those 15 states have

accelerated the spread of COVID-19 in any manner

distinguishable from non-religious interactions. Likewise,

common sense suggests that religious leaders and

worshipers (whether inside or outside [the State]) have

every incentive to behave safely and responsibly whether

working indoors, shopping indoors, or worshiping

indoors. The Governor cannot treat religious worship

as a world apart from non-religious activities with no

good, or more importantly, constitutional, explanation.


45

Berean Baptist, 2020 WL 2514313, at *9 (emphasis added) (footnote omitted).

Maryville Appellants have demonstrated they can observe the distancing and

hygiene guidance that the Governor deems sufficient (to the extent “practicable” and

“when possible”) for exempt non-religious gatherings. (Stmt. Part II.C.) There is no

justification for depriving Maryville Appellants of the same consideration or benefit

going forward.

Indeed, as the On Fire court reasoned, the Governor is unlikely to be able to

demonstrate that he deployed the least restrictive means because his 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 . . . 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). Because of

the Governor’s failure to tailor his gathering restrictions to closely fit the safety ends

he espouses, and failure to try other, less restrictive alternatives that he cannot

demonstrate are not working in other jurisdictions across the country, Maryville

Appellants “can likely show that the broad prohibition against in-person religious

services . . . is not narrowly tailored to achieve the stated public health goals where


46

the comparable secular gatherings are subjected to much less restrictive conditions.”

First Baptist, 2020 WL 1910021, at *8.

5. Recent decisions denying injunctions

erroneously apply Smith or treat the century-old

Jacobson as a pandemic exception to free

exercise principles.

Although there are some variations of facts, two distinct lines of reasoning

have emerged from the cases involving church challenges to COVID-19 worship

restrictions: the analytical line, which examines the real and practical similarities

and differences in contagion danger as between worship services and the non-

religious conduct exempted from restrictions, and the deferential line, which

accepts the superficial categorizations of allowed and prohibited activities with only

shallow examination of their relative dangers. This Court should continue to follow

the analytical line and hold that, as a real and practical matter, the Governor’s Orders

arbitrarily and discriminatorily restrict worship services in violation of Maryville

Appellants’ free exercise rights.

The analytical approach is exemplified by this Court’s Roberts IPA and

Maryville IPA decisions, as well as the Eastern District of North Carolina’s decision

in Berean Baptist. (Supra Part II.A.1.a.) See also On Fire, First Baptist, and

Tabernacle (supra Part II.A.1.b); South Bay United Pentecostal Church v. Newsom,

959 F.3d 938, 940 (9th Cir. 2020) (Collins, J., dissenting); South Bay United


47

Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614 (2020) [hereinafter South

Bay] (Kavanaugh, J., dissenting).

The deferential line is typified by the recent Seventh Circuit decision in Elim

Romanian Pentecostal Church v. Pritzker, No. 20-1811, 2020 WL 3249062 (7th Cir.

June 16, 2020) [hereinafter Elim Romanian], where two churches challenged the

Illinois Governor’s executive order restricting worship services to 10 people. 2020

WL 3249062, at *1. Applying Smith, the Seventh Circuit sought to determine, “what

is the right comparison group: grocery shopping, warehouses, and soup kitchens, as

plaintiffs contend, or concerts and lectures, as Illinois maintains?” Id. at *5. The

court acknowledged “that warehouse workers and people who assist the poor or

elderly”—exempt “life-sustaining” workers under Governor Beshear’s Orders—

“may be at much the same risk as people who gather for large, in-person religious

worship.” Id. at *6. Despite acknowledging the similar risks, however, the Seventh

Circuit disregarded this Court’s analytical approach in the Roberts IPA and

Maryville IPA, and cited Jacobson v. Massachusetts, 197 U.S. 11 (1905), as

providing a “public-health emergenc[y]” standard requiring deference to the Illinois

Governor’s disparate restrictions. 2020 WL 3249062, at *5–6.

The deferential line of reasoning is not only shallow, but incorrect as a matter

of constitutional law. Invoking Jacobson as providing a separate, deferential

framework for analyzing First Amendment claims is precluded by the Supreme


48

Court’s substantial development of its First Amendment jurisprudence in the

decades since. Indeed, the concept of “compelling interest” was not introduced to

First Amendment jurisprudence until over 50 years after Jacobson, in Sweezy v. New

Hampshire, 354 U.S. 234, 65 (1957) (Frankfurter, J., concurring), and strict scrutiny

was not applied in its current form until 60 years after Jacobson, in Sherbert v.

Verner, 374 U.S. 398 (1963); see also Stephen Siegel, The Origins of the Compelling

State Interest Test and Strict Scrutiny, 48 Am. J. Legal History 355 (2008). Jacobson

preceded all of these developments, and did not involve First Amendment questions

at all, let alone the questions at issue here.

This Court’s Roberts IPA and Maryville IPA rightly rejected application of

Jacobson as supplying a separate, permissive framework for evaluation of free

exercise claims against continuing executive restrictions: “While the law may take

periodic naps during a pandemic, we will not let it sleep through one.” Roberts IPA,

958 F.3d at 414–15; Maryville IPA, 957 F.3d at 615; see also On Fire, 2020 WL

1820249, at *8 (“[E]ven under Jacobson, constitutional rights still exist. Among

them is the freedom to worship as we choose.”); cf. Berean Baptist, 2020 WL

2514313, at *1 (“There is no pandemic exception . . . .”) Moreover, Jacobson dealt

with a facially neutral law of general applicability (though before the category was

so-called in Smith), and thus it provides an unsuitable framework by itself to address

the disparate treatment of religious exercise under Governor Beshear’s Orders. See


49

First Baptist, 2020 WL 1910021, at *6 (“Smith, . . . Jacobson, and similar cases do

not provide the best framework in which to evaluate the Governor's executive orders

because all those cases deal with laws that are facially neutral and generally

applicable.”). This Court should, again, reject Jacobson as a separate framework for

evaluating Maryville Appellants’ constitutional claims.

The contrast between the robust, analytical line of reasoning and shallow,

deferential line of reasoning on this issue was illuminated by the Supreme Court’s

5-4 decision in South Bay denying an extraordinary writ of injunction to a church

challenging California’s COVID-19 restrictions, which imposed a 100-person or

25% occupancy limit on houses of worship but not on “factories, offices,

supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming

shops, bookstores, florists, hair salons, and cannabis dispensaries.” 140 S. Ct. at

1614 (Kavanaugh, J., dissenting). The Court did not issue an opinion, noting only

that Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the

injunction. Id. at 1613. But the decision was accompanied by the lone concurring

opinion of Chief Justice Roberts, and the dissenting opinion of Justice Kavanaugh

in which Justices Thomas and Gorsuch joined. Id. at 1613–15.

Chief Justice Roberts’ concurrence 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


50

indisputably clear’ and, even then, ‘sparingly and only in the most critical and

exigent circumstances.’” Id. at 1613. But the Chief Justice also performed a cursory

constitutional analysis of the challenged restriction, akin to the superficial,

deferential analysis typified by Elim Romanian. See id. at 1613–14.5

In his dissent, joined by two other Justices, Justice Kavanaugh engaged in a

much more robust analysis of the constitutionality of the California restrictions.

Justice Kavanaugh explained that “[t]he basic constitutional problem is that

comparable secular businesses are not subject to a 25% occupancy cap, including

factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping

malls, pet grooming shops, bookstores, florists, hair salons, and cannabis

dispensaries.” Id. 1614. Applying strict scrutiny, and relying heavily on this Court’s

Roberts IPA decision, Justice Kavanaugh recognized California’s “compelling

interest in combating the spread of COVID-19 and protecting the health of its

citizens,” id., but also that “‘restrictions inexplicably applied to one group and

exempted from another do little to further these goals and do much to burden

5 To be sure, the Elim Romanian Court expressly relied on the Chief Justice’s

superficial analysis. See 2020 WL 3249062, at *5 (“We line up with Chief Justice

Roberts.”) But, neither the Supreme Court’s decision denying the extraordinary writ

of injunction, nor Chief Justice Roberts’ lone concurrence, are binding. See, e.g.,

Barefoot v. Estelle, 463 U.S. 880, 907 n.5 (1983) (Marshall, J., dissenting); South

Bay, 2020 WL 2813056, at *1 (Roberts, C.J., concurring); Little Sisters of the Poor

Home for the Aged, Denver, Colorado v. Sebelius, 571 U.S. 1171 (2014); B.H. ex

rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 312 (3d Cir. 2013).


51

religious freedom.’” Id. at 1614–15. Thus, he explained, “[w]hat California needs is

a compelling justification for distinguishing between (i) religious worship services

and (ii) the litany of other secular businesses that are not subject to an occupancy

cap,” id. at 1615, and concluded, “California has not shown such a justification.” Id.

Ultimately, Justice Kavanaugh concluded that “California’s 25% occupancy cap on

religious worship services indisputably discriminates against religion, and such

discrimination violates the First Amendment.” Id.

Importantly, neither Chief Justice Roberts nor Justice Kavanaugh cited

Jacobson as providing an alternative First Amendment analysis. The Chief Justice

cited Jacobson only after his First Amendment analysis, and then only for the

general proposition that safety and health are the purview of state officials under the

Constitution. Id. at 1613. Justice Kavanaugh did not cite Jacobson at all, though he

did observe, after his First Amendment analysis, that “[t]he State . . . has substantial

room to draw lines, especially in an emergency.” Id. at 1615. “But,” he also

explained, “the Constitution imposes one key restriction on that line-drawing: The

State may not discriminate against religion.” Id.

6. If Smith blocks Maryville Appellants’

vindication of their free exercise rights, then

Smith should be reconsidered.

The inherent selectivity and differentiation of the Governor’s Orders with

respect to the persons, entities, and activities to which its permissions and restrictions


52

apply remove it from the realm of neutral and generally applicable laws under Smith,

especially as applied to Maryville Appellants. (See supra Part II.A.3.a.) If, however,

despite their inherent selectivity, the Orders are held to be neutral and generally

applicable with respect to Maryville Appellants’ religious worship, then Smith is

incompatible with the Free Exercise Clause, and due to be reconsidered. Cf. Kennedy

v. Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (Alito, J., concurring) (in

concurrence with denial of certiorari, joined by Justices Thomas, Gorsuch, and

Kavanaugh, lamenting Smith’s “drastic[] cut back on the protection provided by the

Free Exercise Clause” and indicating willingness to revisit the decision); Fulton v.

Philadelphia, Pa., S. Ct. No. 19-123, Question Presented (“Whether Employment

Division v. Smith should be revisited?”) (cert. granted, 140 S. Ct. 1104 (Feb. 24,

2020));6 Ricks v. Id. Contractors Bd., S. Ct. No. 19-66, Brief of Amici Curiae Ten

Legal Scholars in Support of Petitioner.7

B. The Governor’s Orders Violate Maryville Appellants’ Free

Exercise Rights, and Cannot Survive Strict Scrutiny, Under

KRFRA.

Like the Free Exercise Clause, KRFRA prohibits Governor Beshear from

substantially burdening a Kentuckian’s exercise of religion. As shown above (Arg.

6 https://www.supremecourt.gov/qp/19-00123qp.pdf. 7 https://www.supremecourt.gov/DocketPDF/19/19-

66/112058/20190812162931642_Ricks%20-

%20Amici%20Brief%20for%20Ten%20Legal%20Scholars%20TO%20FILE.pdf.


53

Part II.A.2), the Governor’s threatened and actual enforcements of his Orders

substantially burden Maryville Appellants’ religious practice of assembling together

for worship, according to their sincerely held beliefs. Thus, the Orders and their

application to Maryville Appellants must be subjected to strict scrutiny under

KRFRA, which specifies that the government 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.” As also shown above (Arg. Part

II.A.4), the Orders cannot survive this review.

C. The Orders Unconstitutionally Restrict Maryville

Appellants’ Free Speech and Assembly Rights Based on

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). “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.” Id. S. Ct. at 2227. Put simply, the

Supreme Court has handed down a firm rule: laws that are content based on their


54

face must satisfy strict scrutiny. Id. And the rule applies even if the government’s

purpose in enacting the law arises from an emergency: “A law that is content based

on its face is subject to strict scrutiny regardless of the government’s benign motive,

content-neutral justification, or lack of animus toward the ideas contained in the

regulated speech.” Id.

The text of the Orders proves they are content-based restrictions on Maryville

Appellants’ speech and assembly—in their own church building. The Orders

effectively prohibit or numerically restrict Maryville Appellants’ use of their own

building for their protected religious speech and assembly, while allowing them to

use their building with no numerical limit to provide social services approved by the

Governor, and while allowing all similarly risky “life-sustaining” businesses and

non-religious activities involving speech and assembly to proceed without numerical

limit. (Stmt. Part II.A; EO-257, RE.1-7, PageID# 74 (exempting “Newspapers,

television, radio, and other media services” as “Life-Sustaining Businesses”).) Such

an expansive and disparate system of exemptions makes it likely that a law is

content-based. See ACLU of Ill. v. White, 2009 WL 5166231, *4 (N.D. Ill. Dec. 23,

2009); see also H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 622 (6th

Cir. 2009) (holding system where some forms of speech are exempted while others

are not is content-based and subject to strict scrutiny). The Orders discriminate

between non-religious services and religious services, in the same church with the


55

same people. Thus, the Orders discriminate against the content and viewpoint

of Maryville Appellants’ message—non-religious speech and assembly are

permitted but religious speech and assembly are restricted. The Orders’

disparate treatment of speech-centric religious worship and assembly is a content-

based speech restriction subject to strict scrutiny, which the Governor cannot

overcome.

D. The Orders Are Unconstitutionally Vague.

A law is impermissibly vague if it either “fails to provide people of ordinary

intelligence a reasonable opportunity to understand what conduct it prohibits,” or if

it “authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v.

Colorado, 530 U.S. 703, 732 (2000). The Governor’s Orders—specifically the part

mandatory, part permissive Worship Guidelines 1.1—are unconstitutionally vague

for both reasons.

Governor Beshear advised this Court that “faith-based organizations that have

in-person services must implement” the Guidelines under the CHFS May 9 Order,

and advised the district court that the Order “requires faith-based organizations that

have in-person services to implement and follow the Guidelines.” (Stmt. Part

III.B.8.) But the Governor also represented to the district court that “[t]he Guidelines

are mostly permissive, but . . . require that places of worship having in-person

services adhere to social distancing and hygiene guidelines.” (Stmt. Part III.B.8.)


56

The May 9 Order itself provides that “Faith-based organizations that have in-person

services must implement and follow the Guidelines.” (Doc. 31-2 at 2 (emphasis

added).)

No person of ordinary intelligence has any chance of understanding what is

mandatory and what is permissive under the Guidelines, based on the Governor’s

judicial statements, and based on the May 9 Order implementing the Guidelines.

Although the Guidelines themselves are variously phrased in terms of “should” and

“must,” the implementing May 9 Order expressly states places of worship “must

implement and follow the Guidelines.” As but one example, the Governor has not

explained to this Court or the district court, and cannot explain, how the Guideline

stating Maryville Appellants “should limit attendance to no more than 33% of

building occupancy capacity” (Doc. 31-2 at 4 (emphasis added)) could be anything

but mandatory when the May 9 Order implementing the Guideline states Maryville

Appellants “must implement and follow” it.

Moreover, the Governor himself has not only authorized arbitrary and

discriminatory enforcement of his Orders, but has personally exemplified it in

chastising and targeting a small group of Easter Sunday churchgoers in April (Stmt.

Part II.B–C; Arg. Part II.A.3.a), and praising thousands of protestors on his own

Capitol steps in June (Arg. Part II.A.3.a)—both groups being subject to the

Gatherings Order at the relevant times. The hopeless vagueness of the Worship


57

Guidelines will do nothing to curb the Governor’s demonstrated arbitrary and

discriminatory enforcement.

Furthermore, “where a vague statute abuts upon sensitive areas of basic First

Amendment freedoms, it operates to inhibit the exercise of those freedoms.”

Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (cleaned up). The

uncertainty, ambiguity, and arbitrariness of enforcement engendered by the Worship

Guidelines and the Governor will have an indisputable chilling effect on the religious

exercise of Maryville Appellants and their congregants because the Guidelines fail

to provide them clarity on precisely what religious exercise is permitted at their

church. Thus, the Governor’s Orders, especially the Worship Guidelines 1.1, are

unconstitutionally vague and should be enjoined.

III. MARYVILLE APPELLANTS SATISFY THE REMAINING

PRELIMINARY INJUNCTION REQUIREMENTS.

A. Maryville Appellants Have No Adequate Remedy at Law and

Will Suffer Irreparable Harm if a Preliminary Injunction Is

Denied.

“The loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” 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

irreparable injury is necessary.” (emphasis added)). Thus, demonstrating irreparable


58

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).

B. The Balance of Harms and Public Interest Favor a

Preliminary Injunction.

A preliminary injunction enjoining enforcement of the Orders on Maryville

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 Maryville 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 a PI, Maryville 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.

A PI 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

[are] for the benefit of all of us.” Machesky v. Bizzell, 414 F.2d 283, 288–90 (5th


59

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 Maryville Appellants’ favor, and a PI is in the public

interest.

CONCLUSION

For all of the foregoing reasons, the district court should be reversed, and the

PI should issue.

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



Attorneys for Plaintiffs–Appellants


60

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 12,916 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 June 30, 2020.

/s/ Roger K. Gannam

Roger K. Gannam

Attorney for Plaintiffs–Appellants


61

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 June 30, 2020.

/s/ Roger K. Gannam

Roger K. Gannam

Attorney for Plaintiffs–Appellants


A-1

ADDENDUM I

Designation of Relevant District Court Documents

Pursuant to 6th Cir. R. 28(b)(1)(A)(i) and 6th Cir. R. 30(g)(1)(A)-(C)

RE # Description PageID#

1 Verified Complaint for Declaratory Relief, Temporary

Restraining Order, Preliminary and Permanent Injunctive

Relief, and Damages

1

1-2 V. Compl. Ex. A - Executive Order 2020-215 56

1-4 V. Compl. Ex. C - March 17, 2020 Order of Cabinet for

Health and Family Services

62

1-5 V. Compl. Ex. D - March 19, 2020 Order of Cabinet for


66

1-6 V. Compl. Ex. E - Executive Order 2020-246 68

1-7 V. Compl. Ex. F - Executive Order 2020-257 72

1-9 V. Compl. Ex. H - Gov. Beshear Asks for Kentuckians’

Best Efforts in COVID-19 Fight

92

1-10 V. Compl. Ex. I - Declaration of David Carr 98

1-11 V. Compl. Ex. J - Notice 103

1-12 V. Compl. Ex. K - April 14, 2020 Letter from Cabinet for


104

1-13 V. Compl. Ex. L - Florida Executive Order 20-91 106

1-14 V. Compl. Ex. M - Indiana Executive Order 20-08 140

1-15 V. Compl. Ex. N - Arizona Executive Order 2020-18 150

1-16 V. Compl. Ex. O - Alabama Order of the State Health

Officer April 3, 2020

155

1-17 V. Compl. Ex. P - Arkansas Executive Order 20-13 166

1-18 V. Compl. Ex. Q - Connecticut Executive Order 7N 170


A-2

RE # Description PageID#

3 Plaintiffs’ Emergency Motion for Temporary Restraining

Order and Preliminary Injunction and Supporting

Memorandum of Law

177

9 Order (Apr. 18, 2020) 221

16 Plaintiffs’ Notice of Appeal 252

17 Plaintiffs’ Emergency Motion for Injunction Pending

Appeal and Supporting Memorandum of Law

254

20-2 Amicus Curiae Brief of the Commonwealth of Kentucky

in Support of Plaintiffs’ Motion for an Injunction Pending

Appeal

268

21 Governor Beshear’s Notice of Supplemental Fact

Development

283

25 Plaintiffs’ Renewed Emergency Motion for Injunction

Pending Appeal and Motion to Amend Briefing Schedule

299

29 Stipulation of Facts Not in Dispute 398

34 Governor Andy Beshear’s Notice of Filing of

Supplemental Fact Development

570

34-1 Requirements for Places of Worship, Version 1.0 572

35 Order (May 8, 2020) 575

38 Governor Beshear’s First Amended Motion to Dismiss 593

38-1 Governor Beshear’s Memorandum of Law in Support of

First Amended Motion to Dismiss

595

45 Plaintiffs’ Response in Opposition to Defendant’s Motion

to Dismiss and Amended Motion to Dismiss

635


UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF NEW YORK________________________________REV. STEVEN SOOS et al.,

1:20-cv-651Plaintiffs, (GLS/DJS)

v.

ANDREW M. CUOMO et al.,

Defendants.________________________________APPEARANCES: OF COUNSEL:

FOR THE PLAINTIFFS:148-29 Cross Island Parkway CHRISTOPHER A. FERRARA,Whitestone, NY 11357 ESQ.

10506 Burt Circle MICHAEL McHALE, ESQ.Ste 110Omaha, NE 68114

FOR THE DEFENDANTS:Andrew M. Cuomo & Letitia JamesHON. LETITIA JAMES ADRIENNE J. KERWINNew York State Attorney General Assistant Attorney GeneralThe CapitolAlbany, NY 12224

Bill de BlasioHON. JAMES E. JOHNSON MELANIE SADOKCorporation Counsel of the City of ELLEN PARODINew York HILARY M. MELTZERNew York City Law Department Assistants Corporation Counsel100 Church StreetNew York, NY 10007

Case 1:20-cv-00651-GLS-DJS Document 35 Filed 06/26/20 Page 1 of 38

A-3


FOR THE PROSPECTIVE AMICUSCURIAE:Ahuva KleinmanMandelbaum Salsburg PC RONALD D. COLEMAN, ESQ.3 Becker Farm RoadRoseland, NJ 07068

Gary L. SharpeSenior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pending is an application for preliminary injunctive relief filed by

plaintiffs Reverend Steven Soos, Reverend Nicholas Stamos, Daniel

Schonbrun, Elchanan Perr, and Mayer Mayerfeld.1 (Dkt. Nos. 2, 7.) In

their most recent filing, plaintiffs seek an order restraining and enjoining

defendants Andrew M. Cuomo, Governor of the State of New York; Letitia

James, Attorney General of the State of New York; and Bill de Blasio,

Mayor of the City of New York: (1) from enforcing any gathering limits to

outdoor religious gatherings; and (2) from imposing any limitation on

indoor gathering . . . for religious gatherings in parity

1 Plaintiffs’ initially sought a temporary restraining order, but, at the conclusion of thereturn on that application, the court discussed with the parties the preferability of allowing themto supplement the record and argument, and address the application for preliminary injunctiverelief without resort to a further evidentiary hearing; the court’s proposed course of action wasacceptable to all the parties and obviates the need to consider the application for a temporaryrestraining order. (Dkt. No. 31, Attach. 1 at 38-49.)

2


A-4


with the 100% occupancy allowed for favored“essential businesses,” day camps and specialeducation classes, or, alternatively, at least 50%occupancy in keeping with what is permitted for“non-essential” businesses and every other indooractivity allowed to continue under Phases Two andThree except religious activity, which alone is stillarbitrarily confined to 25% occupancy.

(Dkt. No. 32 at 10.) For the reasons explained and to the extent described

below, the application for a preliminary injunction is granted.

II. Background

For the past several months, the United States, and, indeed, the

entire world, has been suffering from a global pandemic brought about by

COVID-19. The State of New York, and particularly the New York City

metropolitan area, have been described as the “epicenter” of the pandemic.

See New York Coronavirus Map and Case Count, N.Y. Times (last visited

June 26, 2020), https://www.nytimes.com/interactive/2020/us/

new-york-coronavirus-cases.html. To date, there have been 395,168

cases, and 31,029 deaths because of COVID-19 in the State of New York.

See id.

A. The Executive Orders

Beginning in March 2020, in response to the COVID-19 pandemic

3


A-5


besieging New York, Governor Cuomo issued a series of executive orders,

placing restrictions on New Yorkers:

(1) Order 202, issued on March 7, declared a disaster emergency in theState of New York. (Dkt. No. 1, Attach. 1 at 1-3.)

(2) Order 202.1, issued on March 12, prohibited large gatherings of over500 people. (Id. at 4-7.)

(3) Order 202.3, issued on March 16, narrowed the prohibition on largegatherings to fifty persons. (Id. at 10-11.)

(4) Order 202.6, issued on March 18, required all New York Statebusinesses to “reduce the in-person workforce at any work locations by50%,” with exceptions for those businesses and entities that provided“essential services or functions.” (Id. at 17-18.)

(5) Order 202.8, issued on March 20, reduced the in-person workforcesof non-essential businesses by 100%. (Id. at 21-22.)

(6) Order 202.10, issued on March 23, declared a total ban on “non-essential gatherings of individuals of any size for any reason.” (Id. at25-28.)

(7) Order 202.17, issued on April 15, required face-coverings to be worn“when in a public place and unable to maintain, or when notmaintaining, social distance.” (Id. at 46.)

(8) Order 202.31, issued on May 14, extended the closure of non-essential businesses and entities, and the ban on non-essentialgatherings. (Id. at 69-70.) The Order also provided that “[a]llenforcement mechanisms by state or local governments shall continueto be in full force an[d] effect until June 13, 2020 unless later extendedor amended by a future Executive Order.” (Id.)

(9) Order 202.32, issued on May 21, modified the previous ban on non-

4


A-6


essential gatherings “to permit a gathering of ten or fewer individuals forany religious service or ceremony,” provided that certain socialdistancing and health protocols were adhered to, and ordered that “anydrive-in or remote religious service may continue in excess of the tenperson limit so long as there is no in-person contact betweenparticipants.” (Id. at 71-73.)

(10) Order 202.33, issued on May 22, permitted non-essentialgatherings of ten or fewer individuals “for any lawful purpose or reason,”provided that certain social distancing and health protocols wereadhered to. (Id. at 74.)

(11) Order 202.34, issued on May 28, continued the restriction,postponement, and/or cancellation, of all non-essential gatherings ofmore than ten individuals, but allowed for any region that met certainpublic health and safety metrics to begin “Phase One reopening.” (Id.at 75-76.)

(12) Order 202.35, issued on May 29, ended workplace reductions andrestrictions in certain regions for non-essential businesses, the “PhaseTwo industries,” which include: professional services, administrativesupport, and information technology; real estate services, building andproperty management, leasing, rental, and sales services; retail in-storeshopping, rental, repair, and cleaning; barbershops and hair salons; andmotor vehicle leasing, rental, and sales. (Id. at 77-78.) The restrictionon outdoor gatherings of groups of more than ten people remained inplace. (Id.)

(13) Order 202.36, issued on June 2, declared that any region to meetcertain public health and safety metrics “may allow outdoor, low-riskrecreational activities and businesses providing such activities, asdetermined by Empire State Development Corporation, to be permittedto operate, in accordance with Department of Health guidance.” (Id. at79-80.)

(14) Order 202.37, issued on June 5, declared that “special educationservices and instruction required under Federal, state or local laws,

5


A-7


rules, or regulations, may be provided in person for the summer term inschool districts.” (Id. at 81.)

(15) Order 202.38, issued on June 6, modified Order 202.35, permittingany region to have entered “Phase Two” of New York’s reopening planto allow “non-essential gatherings for houses of worship at no greaterthan 25% of the indoor capacity of such location.” (Id. at 82-83.) Therestriction on outdoor gatherings of groups of more than ten peopleremained in place. (Id.)

(16) Order 202.42, issued on June 15, modified Order 202.35 and Order202.38, permitting any region to have entered “Phase Three” of NewYork’s reopening plan to allow “non-essential gatherings . . . [of] twenty-five (25) or fewer individuals, for any lawful purpose or reason.” (Dkt.No. 33, Attach. 1 at 5.)

On June 17, 2020, Mayor de Blasio issued an “Emergency Executive

Order” incorporating Governor Cuomo’s executive orders, and “direct[ing]

the Fire Department of the City of New York, the New York City Police

Department, the Department of Buildings, the Sheriff, and other agencies

as needed to immediately enforce the [orders].” (Dkt. No. 32, Attach. 3 at

1-2.)

B. The Guidance

A document entitled “Guidance for Determining Whether a Business

Enterprise is Subject to a Workforce Reduction Under Recent Executive

Orders,” (hereinafter, the “Guidance Document”), was published and

simultaneously updated by the State of New York with the issuance of the

6


A-8


executive orders described above. (Dkt. No. 1, Attach. 1 at 94-125, 128-

38.)

From March 20 through March 24, 2020 the Guidance Document

provided that “worship services” are included among the enumerated

businesses that “must remain closed and are not eligible for designation as

an essential business for purposes of this guidance.” ( Id. at 98.)

From March 25 through April 7, 2020 the Guidance Document

provided that although “[h]ouses of worship are not ordered closed[,] . . . it

is strongly recommended not to hold congregate services,” and reiterated

that “worship services . . . are not eligible for designation as an essential

business for purposes of this guidance.” (Id. at 105.) From April 8 through

April 9, 2020 “worship services” continued to be listed as among the

businesses that “must remain closed and are not eligible for designation as

an essential business for purposes of this guidance.” ( Id. at 113.)

From April 10 through May 20, 2020 the Guidance Document

provided:

Pursuant to Executive Order 202.10 . . . , all non-essential gatherings of individuals of any size for anyreasons (e.g. worship services, parties, celebrationsor other social events) are canceled or postponed. Congregate services within houses of worship are

7


A-9


prohibited. Houses of worship may only be used byindividuals and only where appropriate socialdistancing of, at least, six feet between people can bemaintained. Further, individuals should not gather inhouses of worship, homes, or other locations forreligious services until the end of this public healthemergency. If possible, religious leaders shouldconsider alternative forms of worship, replacing in-person gatherings with virtual services, such asphone or conference calls, videoconference calls, oronline streaming.

(Id. at 123.)

From May 21 through June 5, 2020, the Guidance Document

permitted a gathering of ten or fewer people for a religious service or

ceremony, provided that certain social distancing and health protocols were

adhered to, and permitted “any drive-in or remote religious service may

continue in excess of the ten person limit so long as there is no in-person

contact between participants.” (Id. at 135-36.) It further provided that

“[f]aith leaders should continue to consider and use alternative forms of

worship,” and that “congregations of groups for religious service or

ceremony in excess of ten in-person participants remain prohibited.” ( Id.)

Guidance for “Phase Two Industries” limit indoor capacity to no more

8


A-10


than 50% of maximum capacity.2 See, e.g., Reopening New York:

Essential and Phase II Retail Business Guidelines for Employers and

Employees, https://www.governor.ny.gov/sites/governor.ny.gov/files/

atoms/files/GeneralRetailSummaryGuidance.pdf; Reopening New York:

Hair Salon and Barbershop Guidelines for Employers and Employees,

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/HairSal

onsAndBarbershopSummaryGuidance.pdf. And guidance for restaurants

in “Phase Three” limits indoor capacity to no more than 50% of maximum

occupancy, exclusive of employees. (Dkt. No. 32, Attach. 6 at 1.)

Beginning today, on June 26, outdoor graduations of up to 150

people will be allowed.3 See New York State Department of Health,

Updated Interim Guidance for Graduation Celebrations During the COVID-

19 State of Emergency (June 14, 2020), https://coronavirus.health.ny.gov/

system/files/documents/2020/06/doh_covid19_updatedgraduationguidance

_061420.pdf; Governor Announces Outdoor Graduations of up to 150 Will

2 The court takes judicial notice of the information contained on New York State’sofficial website as such public information is “accurately and readily determined from sourceswhose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).

3 The court takes judicial notice of the information contained on the New York StateDepartment of Health’s official website as such public information is “accurately and readilydetermined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.201(b)(2).

9


A-11


C. The Protests

Mass race-related protests have erupted across the nation, including

in the State of New York, in response to the death of African-American

George Floyd on May 25, 2020. (Compl. ¶ 22.) Protesters, sometimes in

groups of thousands, have taken to the streets of New York City as well as

other major cities in the State of New York. (Id. ¶¶ 22, 61, 69.)

During this time, a “social media campaign” has encouraged theaters

in New York, which are to be closed until “Phase Four” of New York’s

reopening plan, to open their lobbies and restrooms for protesters. (Dkt.

No. 1, Attach. 1 at 160-64.)

D. Responses From Cuomo and de Blasio

1. Governor Cuomo

During a press conference held on June 1, 2020, when asked if he

would “suggest people not go out and protest,” Governor Cuomo

answered:

No, I think you can protest, but do it smartly andintelligently. . . . There were protests all across thecountry. Protest. Just be smart about it. With this

10


Be Allowed Beginning June 26th (June 7, 2020), https://on.ny.gov/311

JGWN.

A-12


virus, you can do many things now as long as you’resmart about it, right? You can reopen, you can gointo a store and you can do a lot of things, just besmart.

(Id. at 146.) When asked what the difference is “between protesting and a

business, say, in the city who wants to reopen smartly if it’s not at the

phase yet that they’re technically allowed to,” Governor Cuomo answered:

Well, that’s where we’re at, but it has to be a businesswhere you can be smart. Be smart, meaning sociallydistant. You don’t conduct business in a way whereyou have people within six feet. You have to wear themask. You have to do the hand sanitizer. That’swhere we’re going to be.

(Id. at 146-47.)

During a press conference held on June 4, 2020, when asked about

his reopening plans, and if there was a way to “allow high school

graduation ceremonies with social distancing,” Governor Cuomo remarked:

“Did you hear anything that we’ve been talking about for the past 96

days? . . . [Y]eah I know everybody wants to go to a high school

graduation, I get it. Not if they’re going to die.” (Id. at 150-52.) When

asked how he is able to justify opening a patio for outside dining, but will

not allow high school graduation ceremonies with social distancing,

Governor Cuomo answered: “What difference does it make? . . . The issue

11


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is a public health issue and you don’t want people sick and dead. . . . It’s

about death, it’s about balancing the risk versus the reward, balancing the

desires and wants versus the consequences.” (Id. at 151-52.)

During this same press briefing, Governor Cuomo also stated, “I want

to thank the protestors. . . . I stand with the protestors on the point that we

need meaningful reform.” (Compl. ¶ 65 (emphasis omitted).)

When explaining the modification of non-essential gatherings for

houses of worship to no greater than 25% of the indoor capacity of such

location, provided in Order 202.38, Governor Cuomo explained, in part:

“We are going to accelerate the opening of temples, mosques, [and]

churches. . . . 25 percent occupancy is not as easy as 100 percent

occupancy but 100 percent occupancy is a mass gathering and you really

can’t do social distancing.” (Dkt. No. 1, Attach. 1 at 140.) He further

advised New Yorkers to “[b]e smart. It does not mean you go to a temple

or a mosque and you sit right next to a person. You have to socially

distance.” (Id.)

2. Mayor de Blasio

On April 28, Mayor de Blasio appeared in Williamsburg at a Jewish

funeral gathering, which was dispersed by the New York Police

12


A-14


Department (NYPD). (Compl. ¶ 53.) Via Twitter, Mayor de Blasio wrote:

“Something absolutely unacceptable happened in Williamsburg tonite [sic]:

a large funeral gathering in the middle of this pandemic. When I heard, I

went there myself to ensure the crowd was dispersed. And what I saw

WILL NOT be tolerated so long as we are fighting the Coronavirus.” (Dkt.

No. 1, Attach. 1 at 126.) This was followed by another tweet: “My message

to the Jewish community, and all communities, is this simple: the time for

warnings has passed. I have instructed the NYPD to proceed immediately

to summons or even arrest those who gather in large groups. This is about

stopping this disease and saving lives. Period.” (Id. at 127.)

During a June 2, 2020 media conference, when asked: “What about

the retail store owner facing imminent financial ruin or the religious person

who cannot [attend a] house of worship? What about their pain and

anger?” Mayor de Blasio replied, in part: “When you see a nation, an entire

nation simultaneously grappling with an extraordinary crisis seeded in 400

years of American racism[,] I’m sorry[,] [t]hat is not the same question[] as

the understandably aggrieved store owner, or the devout religious person

who wants to go back to services.” (Id. at 155-56.)

On June 4, 2020, Mayor de Blasio, without a mask, attended and

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addressed a political gathering, held in memory of George Floyd. (Compl.

¶ 71.) Neither the ten-person limit on outdoor gatherings, nor the social

distancing protocols, were adhered to. (Id.)

E. Executive Orders’ Effect on Plaintiffs

1. Rev. Steven Soos and Rev. Nicholas Stamos

Soos and Stamos are Catholic priests in the North Country region of

New York, “who offer[] Mass and provide[] the other Sacraments of the

Catholic Church to congregations located in Glens Falls, Massena[,] and

Nicholville[, New York].” (Id. ¶¶ 3-4, 77, 79.) Soos and Stamos have been

forbidden from offering Mass and the other Sacraments beyond an ever-

changing maximum number of people. (Id. ¶¶ 85-96.) Because of the

limitations proscribed in the executive orders, Soos and Stamos are forced

to either turn away parishioners who wish to attend Mass—a weekly

obligation that Catholics face “under pain of mortal sin”—or to hold more

Masses per day than are possible. (Id. ¶¶ 86-93.) Likewise, the

percentage-based capacity limit prevents Soos and Stamos from holding a

daily Mass for Massena students when they return to school. ( Id. ¶ 95.)

The permitted “drive-in” Masses are of little help to Soos, Stamos,

and their congregation. (Id. ¶ 97.) Congregants are prohibited by the

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executive orders from leaving their vehicles at these drive-in Masses,

which prevents congregants from kneeling while receiving Holy

Communion, as is commanded by the Catholic religion. (Id.) Thus, the

orders effectively “prohibit reception of Holy Communion itself—the very

essence of the Mass—except under threat of prosecution and fines.” ( Id.)

And although full outdoor masses are possible at the large churches at

which Soos and Stamos hold Mass, the executive orders “make[] that

impossible.” (Id. ¶ 100.)

Finally, the executive orders burden the Catholic practices of Holy

Matrimony and of “outdoor burial services” where Soos and Stamos are

forced to bar a certain amount of family members and friends from

attending a wedding or a“graveside as their loved ones are laid to rest.”

(Id. ¶¶ 96, 101.)

2. Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfeld

Schonbrun, Perr, and Mayerfeld are Orthodox Jewish congregants

who attend synagogues in Brooklyn, New York, where they reside. ( Id.

¶¶ 5-7, 103.) “The synagogue prayers required by their religion must have

a minimum quorum of ten adult males (age thirteen or older), called the

minyan.” (Id. ¶ 104.) Because of this requirement, in conjunction with the

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executive orders, even though Schonbrun, Perr, and/or Mayerfeld can

attend services if they are part of this quorum, their female and non-adult

male family members are always prevented from attending the services.

(Id. ¶ 108.)

The permittance of drive-in synagogue services is of no help to these

plaintiffs either, because “the minyan must all be present in the same room,

not in various motor vehicles,” and “[m]oreover, any type of operation of a

vehicle is prohibited on the Sabbath, which is the day the main weekly

services take place.” (Id. ¶¶ 109-10.)

Schonbrun is a congregant of Chabad of Marine Park in Brooklyn,

whose Rabbi decided to remain open in mid-March, notwithstanding the

executive orders. (Id. ¶¶ 117-18.) On one occasion, the congregation was

holding a prayer service outside when a police officer arrived and informed

them that they were conducting an “illegal gathering,” despite the fact that

only eight congregants were present, and they “were at least 20 feet apart

from each other.” (Id. ¶¶ 121-22.) When the congregants refused to

disperse, the police officer threatened them with fines and arrest. ( Id. ¶

123.) Shortly thereafter, more police officers arrived on the scene, where

they remained until they were certain that all members of the congregation

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had left the area. (Id. ¶¶ 124-26.)

Because of the executive orders, and the accompanying fear of

arrest and harassment from community activists and the police for violating

them, “Schonbrun and his fellow congregants missed many religious

services, including during Passover.” (Id. ¶ 128.) Further, Schonbrun’s

son has not been able to attend synagogue services for months, as he is

not yet old enough to be part of a minyan. (Id. ¶ 129.) “Schonbrun now

lives in constant fear of police intervention in what remains of Jewish

worship under the ten-person limit.” (Id. ¶ 130.)

Perr is a member of a congregation in the Flatbush-Midwood section

of Brooklyn, where “even before ‘congregate worship’ was prohibited . . .

police were advising members of the Jewish community . . . that

synagogues must close outright.” (Id. ¶¶ 134-35.) Thus, Perr attended

another synagogue, Congregation Zichron Aryeh Leib. (Id. ¶ 136.) Perr

and his fellow congregants were subject to “constant police presence and

interference,” which caused them to live in fear and took from them the

“tranquility of worship.” (Id. ¶¶ 137-39, 144.)

At one point, Perr “observed that [the] synagogue had been locked

and that there was a notice on the door from the Health Department that

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the synagogue had been closed and that no services could be conducted

there.” (Id. ¶ 141.) On that same day, the police “broke up” a Jewish

funeral that Perr attended, at which social distancing protocols had been

followed. (Id. ¶ 142.) Perr was also unable to hold a Bar Mitzvah for his

son, and his wife and children have been unable to attend synagogue

services since March, due to the executive orders and the aforementioned

quorum requirement. (Id. ¶ 148.)

Mayerfeld mainly attended two different synagogues, Shaarei Zion

and Congregation Bnai Torah, where he and his fellow congregants were

subject to repeated “harassment” and surveillance by the police, allegedly

at the behest of Mayor de Blasio and Governor Cuomo. (Id. ¶¶ 153-57.)

Accordingly, Mayerfeld attempted to hold services in his own backyard.

(Id. ¶ 158.) However, he was subjected to harassment and “bullying” from

his neighbors, which he alleges was “incited by . . . [Mayor] de Blasio, who

vowed to crack down on the Jewish community for failing to observe

[Governor] Cuomo’s ban on religious gatherings.” (Id. ¶¶ 159-60.) As is

the case with Schonbrun and Perr, Mayerfeld’s family has been unable to

attend synagogue services due to the executive orders’ capacity limit and

his religion’s quorum requirement for such services. ( Id. ¶¶ 162-63.)

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F. Procedural History

Plaintiffs commenced this action on June 10, 2020 by filing a verified

complaint and an application for a temporary restraining order by order to

show cause. (Dkt. Nos. 1, 2, 7.) The court set an expedited briefing

schedule and a motion return via video conference. (Dkt. No. 8.) At the

conclusion of the return, the court afforded the parties an opportunity to

supplement the record and submit additional argument, which they all did.

(Dkt. Nos. 31-33.)

Plaintiffs allege four enumerated causes of action based on the

circumstances described above: (1) a violation of the Free Exercise Clause

of the First Amendment pursuant to 42 U.S.C. § 1983; (2) a violation of the

First Amendment rights of speech, assembly, and expressive association

conduct pursuant to 42 U.S.C. § 1983; (3) a violation of the Equal

Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C.

§ 1983; and (4) “Ultra Vires State Action in Violation of Federal Rights.”

(Compl. ¶¶ 164-210.)

III. Standard of Review

A party seeking a preliminary injunction mustdemonstrate: (1) a likelihood of success on the meritsor . . . sufficiently serious questions going to the

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merits to make them a fair ground for litigation and abalance of hardships tipping decidedly in theplaintiff[s’] favor; (2) a likelihood of irreparable injuryin the absence of an injunction; (3) that the balance ofhardships tips in the plaintiff[s’] favor; and (4) that thepublic interest would not be disserved by the issuanceof an injunction.

Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887, 895 (2d Cir.

2015) (internal quotation marks and citation omitted).

IV. Discussion

Legal challenges to executive branch responses to the COVID-19

outbreak have been numerous in the wake of the virus. Recently the

Supreme Court weighed in on a California-based limitation for religious

gatherings of “25% of building capacity or a maximum of 100 attendees.”

S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613

(2020). Chief Justice Roberts concurred in a decision to deny injunctive

relief, explaining:

The precise question of when restrictions on particularsocial activities should be lifted during the pandemicis a dynamic and fact-intensive matter subject toreasonable disagreement. Our Constitutionprincipally entrusts “[t]he safety and the health of thepeople” to the politically accountable officials of theStates “to guard and protect.” Jacobson v.Massachusetts, 197 U.S. 11, 38 (1905). When thoseofficials “undertake[] to act in areas fraught with

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medical and scientific uncertainties," their latitude"must be especially broad.” Marshall v. United States,414 U.S. 417, 427 (1974). Where those broad limitsare not exceeded, they should not be subject tosecond-guessing by an “unelected federal judiciary,”which lacks the background, competence, andexpertise to assess public health and is notaccountable to the people. See Garcia v. SanAntonio Metropolitan Transit Authority, 469 U.S. 528,545 (1985).

Newsom, 140 S. Ct. at 1613-14. Newsom, following the guidance of

Jacobson, instructs courts to refrain from Monday-morning quarterbacking

the other co-equal, elected branches of government when those branches

are responding to difficulties beyond those that are incidental to ordinary

governance. See id. Chief Justice Roberts recognized, however, that

there are “broad limits” which may not be eclipsed. See id. To determine

whether the aforementioned broad limits have been exceeded, which

Newsom did not address, the court turns to Free Exercise Clause

jurisprudence within the framework of the applicable standard of review.

Having carefully reviewed the relevant issues, and with a firm

understanding that the executive branch response to the pandemic has

presented issues with a degree of complexity that is unrivaled in recent

history, it is plain to this court that the broad limits of that executive latitude

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have been exceeded. That is not to say that Governor Cuomo or Mayor de

Blasio have utterly failed in their reaction to COVID-19. To the contrary,

the State of New York, at the moment anyway, is among the best situated

states in terms of infection and mortality rates. While there is more clarity

every day with respect to the best practices for slowing the spread of

COVID-19, there is wide and reasonable disagreement about exactly how

to implement rules and regulations to achieve those ends, and, as is

particularly present in this case, even more so with respect to reopening in

a way that promotes safety, economic viability, and the enjoyment of all the

rights that the people of this country and the State of New York are

guaranteed. As the Chief Justice recognized in Newsom, it is not the

judiciary’s role to second guess the likes of Governor Cuomo or Mayor de

Blasio when it comes to decisions they make in such troubling times, that

is, until those decisions result in the curtailment of fundamental rights

without compelling justification.

A. Success on the Merits4

If neutral and generally applicable, laws challenged as burdening the

4 Plaintiffs argue that each of their four causes of action is likely to succeed on themerits. (Dkt. No. 2, Attach. 4 at 6-23.) Because each of the prongs is met with respect toplaintiffs’ Free Exercise Clause claim, the court need not, and does not, analyze theremainders.

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right to freely exercise religion are presumed valid. See Employment Div.,

Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990); see

also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 546 (1993) (“A law burdening religious practice that is not neutral or

not of general application must undergo the most rigorous of scrutiny.”).

In addressing the constitutional protection for freeexercise of religion, [the Supreme Court’s] casesestablish the general proposition that a law that isneutral and of general applicability need not bejustified by a compelling governmental interest evenif the law has the incidental effect of burdening aparticular religious practice. Neutrality and generalapplicability are interrelated, and . . . failure to satisfyone requirement is a likely indication that the otherhas not been satisfied. A law failing to satisfy theserequirements must be justified by a compellinggovernmental interest and must be narrowly tailoredto advance that interest.

Lukumi, 508 U.S. at 531-32 (citation omitted).

“Although a law targeting religious beliefs as such is never

permissible, if the object of a law is to infringe upon or restrict practices

because of their religious motivation, the law is not neutral.” Id. at 533

(citations omitted).

To determine the object of a law, [the court] mustbegin with its text, for the minimum requirement ofneutrality is that a law not discriminate on its face. A

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law lacks facial neutrality if it refers to a religiouspractice without a secular meaning discernable fromthe language or context.

Id.

“The general applicability requirement prohibits the government from

‘in a selective manner impos[ing] burdens only on conduct motivated by

religious belief.’” Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep't

of Health & Mental Hygiene, 763 F.3d 183, 196 (2d Cir. 2014) (quoting

Lukumi, 508 U.S. at 543). “It ‘protect[s] religious observers against

unequal treatment, and inequality [that] 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.’” Id. at 196-97

(quoting Lukumi, 508 U.S. at 542-43). “While ‘[a]ll laws are selective to

some extent, . . . categories of selection are of paramount concern when a

law has the incidental effect of burdening religious practice.’” Id. at 197

(quoting Lukumi, 508 U.S. at 542). “A law is therefore not generally

applicable if it is substantially underinclusive such that it regulates religious

conduct while failing to regulate secular conduct that is at least as harmful

to the legitimate government interests purportedly justifying it.” Id. at 197

(citation omitted); see Lukumi, 508 U.S. at 543.

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“Individualized exemptions are [another] way in which a law can fail

to be generally applicable.” Douglas Laycock & Steven T. Collis , Generally

Applicable Law and the Free Exercise of Religion, 95 Neb. L. Rev. 1, 10

(2016). In Smith, the Supreme Court explained that, “where the State has

in place a system of individual exemptions, it may not refuse to extend that

system to cases of ‘religious hardship’ without compelling reason.” 494

U.S. at 884 (citation omitted). Case law within this Circuit supports the

notion that individualized de facto exemptions can demonstrate that a

challenged law is not generally applicable, and is therefore subject to

heightened scrutiny. See Litzman v. N.Y.C. Police Dep’t, No. 12 Civ. 4681,

2013 WL 6049066, at *3 (S.D.N.Y. Nov. 15, 2013). Along these lines,

when the challenged law does not carve out an exemption on its face, the

history of enforcement is relevant to the existence of an exemption. See

Stormans, Inc. v. Selecky, 854 F. Supp. 2d 925, 956-57 (W.D. Wash.

2012), rev’d on other grounds sub nom. Stormans, Inc. v. Wiesman, 794

F.3d 1064 (9th Cir. 2015), cert. denied, 136 S. Ct. 2433 (2016).

Plaintiffs argue that the limitations and restrictions placed on them by

the executive orders and the Guidance Document (hereinafter collectively

referred to as “challenged laws”) are not neutral or generally applicable,

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and, therefore, strict scrutiny applies. (Dkt. No. 2, Attach. 4 at 8.) More

specifically, they assert that the challenged laws are not generally

applicable because they are “substantially underinclusive—that is [they]

‘fail[] to prohibit nonreligious conduct that endangers [the government’s

interests] in a similar or greater degree than [the prohibited religious

activity] does.’” (Id. at 9 (citations omitted).) Plaintiffs further claim that

mass race protests have been granted “an individualized exemption” and

that “the government may not refuse to extend that system to cases of

religious hardship without compelling reason.” (Id. at 9-10 (citation

omitted).) That outdoor graduation ceremonies of 150 people or less or

indoor special education services at summer schools without limitation are

allowed also shows the unequal treatment and disfavoring of religion in

plaintiffs’ view. (Dkt. No. 32 at 9.)

Finally, plaintiffs assert that the challenged laws fail strict scrutiny

even though general efforts to prevent the spread of COVID-19 are

“compelling interests of the highest order” because defendants cannot

show that their interest in applying the restrictions to these plaintiffs, who

abide by all social distancing and hygiene rules, is compelling. (Dkt. No. 2,

Attach. 4 at 16-17.)

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The State argues, in overly-simplistic fashion, that the challenged

laws only incidentally impose a burden on religious exercise, and they are

neutral and generally applicable, and therefore, only rational basis need be

shown, which is self-evident: preventing the spread of COVID-19. (Dkt.

No. 18 at 11-12.) The State was silent with respect to the mass race

protests in its written submissions until it filed a supplemental

memorandum of law following the return on the motion. (Dkt. No. 33,

Attach. 4.)5 In that supplement, the State argues that Governor Cuomo’s

“political speech” cannot support a de facto exemption vis-à-vis the mass

race protests. (Id. at 5.)

The City initially responded with respect to only the ten-person

indoor/outdoor limitation that was applicable in New York City during Phase

1. (Dkt. No. 19, Attach. 7 at 2.) It argues, like the State, that the

challenged laws are neutral and generally applicable, but, unlike the State,

the City initially acknowledged the mass race protests and contended that

5 The State argues, for the first time and in a submission to which plaintiffs have hadno opportunity to respond, that, Governor Cuomo enjoys absolute legislative immunity and, inan argument much more fully developed than in its original papers, that, because of sovereignimmunity, he and Attorney General James are not proper defendants. (Dkt. No. 33, Attach. 4at 7-10.) Because it was not raised in time for plaintiffs to offer any response to it, the court willnot consider the legislative immunity argument at this juncture. The same is true of the newsovereign immunity argument. The State is, of course, free to raise those arguments later inthe litigation.

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they are not comparable because protests occur outside and religious

activity typically occurs inside. (Dkt. No. 19, Attach. 7 at 7, note 4.) Further

the City asserts, relying on Calvary Chapel Dayton Valley v. Sisolak, 2020

U.S. Dist. LEXIS 103234 (D. Nev. June 11, 2020), that the enforcement of

the challenged laws against protesters creates safety concerns and, absent

clear patterns of unconstitutional selective enforcement, the court should

not second guess the State’s determinations. (Id. at 8.) In its

supplemental submission, the City contends that the orthodox Jewish

plaintiffs “may no longer seek redress for their alleged injuries” because, as

of June 22, New York City has entered Phase 2, which lifts the ten-person

indoor/outdoor limitation and imposes a 25% indoor capacity limitation.

(Dkt. No. 31, Attach. 6 at 1-2). The City also amplifies its contention,

explained for the first time during the motion return, that a de facto

exemption has not been created for mass race protesters. ( Id. at 3-6.)

In light of the developments and natural progression of the

challenged laws since the motion return, the restrictions and limitations at

issue are: (1) a 25% indoor capacity limitation for Phases 2 and 3; (2) a

twenty-five-person outdoor gathering limit in Phase 3 locations; and (3) a

ten-person outdoor gathering limit in Phase 1 and 2 locations. And the

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City’s argument that Schonbrun, Perr, and Mayerfeld “may no longer seek

redress” because their region has gone into Phase 2, (Dkt. No. 31, Attach.

6 at 1-2), is rejected. While it is true that their allegations are tailored to the

ten-person indoor/outdoor limitation that existed when this matter was

commenced, it is readily and reasonably inferable from their allegations

that the 25% indoor capacity limitation would continue to burden their free

exercise of religion.

Assuming, without deciding, that the challenged laws are neutral,

plaintiffs have demonstrated a likelihood of success on the merits with

respect to their free exercise claim because it appears that the challenged

laws are not generally applicable, and that they would fail strict scrutiny.

1. 25% Indoor Capacity Limitation

On its face, the 25% indoor capacity limitation applies only to houses

of worship. See N.Y. Executive Order No. 202.38. Indeed, that limitation is

the only one of its kind in the tangle of executive orders and the Guidance

Document that have been issued in response to the pandemic; in other

words, no other secular entity, save for those that remain closed in their

entirety until Phase 4 or beyond, are limited to only 25% capacity. The

“nonessential businesses,” dubbed “Phase 2 industries” by executive order,

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that enjoy a 50% capacity limitation are, however, not justifiably different

than houses of worship. (Dkt. No. 32, Attach. 1 ¶ 18.)

For example, offices, retail stores that are not inside of shopping

malls, and salons were permitted to open at 50% capacity beginning in

Phase 2. To a greater or lesser degree, the Phase 2 industries involve the

congregation of people for a length of time. And restaurants in Phase 3

locations are permitted to open at 50% capacity indoors. Restaurant

patrons sit and congregate with family and friends in close proximity for a

lengthy period of time, and have close contact with their hosts and servers.

Face coverings may be removed while seated. (Dkt. No. 32, Attach. 6 at

1.) Additionally, special educational services will be permitted during “the

summer term in school districts” with no indoor capacity limitations.

All of this is to demonstrate that these secular businesses/activities

threaten defendants’ interest in slowing the spread of COVID-19 to a

similar or greater degree than those of plaintiffs’, and demonstrate that the

25% indoor capacity limitation on houses of worship is underinclusive and

triggers strict scrutiny review.6

6 There is also an arguable basis to find a de facto exemption in light of the openlobbies social media campaign. In light of the court’s conclusion that the 25% indoor capacitylimitation is not generally applicable because it is underinclusive, it need not reach theindividualized exemption argument. Admittedly, the basis of such an argument here is on far

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2. Twenty-Five-Person Outdoor Limitation in Phase 3; Ten-Person

Outdoor Limitation in Phases 1 and 2

Despite the State’s claim that enforcement power rests with local

authorities in an effort to show that selective enforcement against mass

race protesters is not a de facto exemption imposed by Governor Cuomo

or Attorney General James, (Dkt. No. 33, Attach. 4 at 5-7), Governor

Cuomo clearly has authority over the New York State Police and broad

powers of enforcement, see N.Y. Exec. Law § 223 (explaining that the

superintendent of state police and its members “shall . . . be subject to the

call of the governor and are empowered to co-operate with any other

department of the state or with local authorities”). And, in any case,

Governor Cuomo’s comments, which applauded and encouraged

protesting and discouraged others from violating the outdoor limitations,

likely demonstrate the creation of a de facto exemption.

Mayor de Blasio is a “local authority” with clear enforcement power

and has at his disposal one of the largest municipal police departments in

the world, (Dkt. No. 1, Attach. 1 at 127), and has also actively encouraged

shakier footing, given the lack of acknowledgment or endorsement by defendants, than it iswith respect to the mass race protests discussed below.

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participation in protests and openly discouraged religious gatherings and

threatened religious worshipers as set forth above. The City’s argument

that temporary selective enforcement of the challenged laws with respect to

mass race protests is a matter of public safety based on the rationale of

Sisolak, 2020 U.S. Dist. LEXIS 103234, would perhaps be legitimate but for

Mayor de Blasio’s simultaneous pro-protest/anti-religious gathering

messages, which clearly undermine the legitimacy of the proffered reason

for what seems to be a clear exemption, no matter the reason. Governor

Cuomo and Mayor de Blasio could have just as easily discouraged

protests, short of condemning their message, in the name of public health

and exercised discretion to suspend enforcement for public safety reasons

instead of encouraging what they knew was a flagrant disregard of the

outdoor limits and social distancing rules. They could have also been

silent. But by acting as they did, Governor Cuomo and Mayor de Blasio

sent a clear message that mass protests are deserving of preferential

treatment.

Another case of individualized exemption seems even more obvious.

The State has specifically authorized outdoor, in-person graduation

ceremonies of no more than 150 people beginning today, June 26. This is

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an express exemption from the ten- or twenty-five-person outdoor limits

that apply across Phases 1, 2, and 3, and the State must extend a similar

exemption to plaintiffs absent a compelling reason to the contrary. See

Smith, 494 U.S. at 884. And there is nothing materially different about a

graduation ceremony and a religious gathering such that defendants’

justifications for a difference in treatment can be found compelling.

3. Strict Scrutiny

For the reasons articulated in plaintiffs’ memorandum of law,

defendants’ generally-stated compelling interest in controlling the spread of

COVID-19 is inadequate to demonstrate that they have a compelling

interest that is narrowly tailored to these specific plaintiffs. (Dkt. No. 2,

Attach. 4 at 16-18.) The City’s attempt to demonstrate otherwise is

unavailing, (Dkt. No. 31, Attach. 6 at 5-6); and the State has made no

attempt to do so.

B. Irreparable Harm, Balance of Hardships, and Public Interest

Plaintiffs contend that the fear of threatened arrest, prosecution and

fines demonstrate the irreparable harm necessary to support the second

prong of the preliminary injunction standard, and that the deprivation of

First Amendment rights is presumed to amount to irreparably injury. (Dkt.

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No. 2, Attach. 4 at 23-24.) The State contends that, because plaintiffs are

not being prevented from exercising their religious rights, and, instead, are

only being required to do so in a different way, the presumption of

irreparable harm does not apply. (Dkt. No. 18 at 23-24.) The City appears

to concede that First Amendment violations are sufficient to demonstrate

irreparable injuries for the purpose of a preliminary injunction. (Dkt. No. 19,

Attach. 7 at 1.)

As noted by plaintiffs and the City, the loss of plaintiffs’ free exercise

rights is alone adequate to demonstrate irreparable injury here. See Elrod

v. Burns, 427 U.S. 347, 373 (1976); Bery v. City of New York, 97 F.3d 689,

693 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997). Accordingly,

plaintiffs have met their burden in this regard.

Plaintiffs have also satisfied the court with respect to the final two

prongs. (Dkt. No. 2, Attach. 4 at 24-25.) The balance of hardships tips in

plaintiffs’ favor. Indeed, in the absence of an injunction, plaintiffs’ religious

activities will be burdened and continue to be treated less favorably than

comparable secular activities. An injunction, on the other hand, does not

undercut defendants’ interest in controlling the spread of COVID-19,

provided that plaintiffs abide by social distancing guidance.

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“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.” Roberts v. Neace, 958 F.3d

409, 416 (6th Cir. 2020); see N.Y. Progress & Prot. PAC v. Walsh, 733

F.3d 483, 488 (2d Cir. 2013).

C. Appropriate Remedy

“District courts have broad authority in crafting equitable remedies

such as injunctions.” Conn. Office of Prot. & Advocacy For Persons With

Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 245 (2d Cir. 2006)

(citations omitted). For the reasons explained above, appropriate injunctive

relief here is a restraint on defendants from enforcement of any indoor

gathering limitations against plaintiffs greater than imposed for Phase 2

industries and restraint from enforcement of any limitation for outdoor

gatherings against plaintiffs. However, the court is unpersuaded that

defendants should be enjoined from the enforcement of the social

distancing rules as set forth in the challenges laws. The court dispenses

with the security requirement of Rule 65(c) of the Federal Rules of Civil

Procedure. See Complete Angler, LLC v. City of Clearwater, Fla., 607 F.

Supp. 2d 1326, 1335 (M.D. Fla. 2009) (“Waiving the bond requirement is

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D. Amicus Curiae

Ahuva Kleinman moves for leave to appear as amicus curiae. (Dkt.

No. 27.) “There is no governing standard, rule or statute prescribing the

procedure for obtaining leave to file an amicus brief in the district court.”

Lehman XS Tr., Series 2006-GP2 v. Greenpoint Mortg. Funding, Inc., No.

12 CIV. 7935, 2014 WL 265784, at *1 (S.D.N.Y. Jan. 23, 2014) (internal

quotation marks, alteration, and citation omitted). Indeed, “[d]istrict courts

ha[ve] broad discretion to permit or deny the appearance of amici curiae in

a given case.” Kearns v. Cuomo, No. 1:19-CV-00902, 2019 WL 5060623,

at *4 (W.D.N.Y. Oct. 9, 2019) (citation omitted). “The usual rationale for

amicus curiae submissions is that they are of aid to the court and offer

insights not available from the parties. Thus, when those purposes are not

served, typically, courts deny motions seeking leave to appear amicus

curiae.” Id. at *5 (internal quotation marks, alterations, and citations

omitted).

The circumstances under which an amicus brief is considered to be

an aid to the court are limited: “An amicus brief should normally be allowed

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particularly appropriate where a plaintiff alleges the infringement of a

fundamental constitutional right.” (citations omitted)).

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when a party is not represented competently or is not represented at all,

when the amicus has an interest in some other case that may be affected

by the decision in the present case . . . or when the amicus has unique

information or perspective.” Best Payphones, Inc. v. Dobrin, 410 F. Supp.

3d 457, 465 n.3 (E.D.N.Y. 2019) (alterations and citation omitted).

“Otherwise, leave to file an amicus brief should be denied.” Id. (alterations

and citation omitted).

Here, the need for an amicus curiae is minimal to non-existent. The

competence and skill of plaintiffs’ counsel obviates the need for additional

input. Accordingly, while the efforts of the prospective amicus are

admirable, her motion for leave to appear as amicus curiae, (Dkt. No. 27),

is denied.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that plaintiffs’ application for a preliminary injunction

(Dkts. No. 2, 7) is GRANTED; and it is further

ORDERED that defendants are ENJOINED and RESTRAINED as

follows:

(1) from enforcing any indoor gathering limitations against plaintiffs

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greater than imposed for Phase 2 industries, provided that plaintiffs

follow social distancing requirements as set forth in the applicable

executive orders and guidance; and

(2) from enforcing any limitation for outdoor gatherings provided that

participants in such gatherings follow social distancing requirements

as set forth in the applicable executive orders and guidance; and it is

further

ORDERED that Kleinman’s motion for leave to appear as amicus

curiae (Dkt. No. 27) is DENIED; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-

Decision and Order to the parties.

IT IS SO ORDERED.

June 26, 2020Albany, New York

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