459 F.Supp.3d 847
E.D. Ky.2020Background
- In March 2020 Kentucky officials issued (1) a March 19 order banning “mass gatherings” (including faith-based events) and (2) a March 25 executive order closing non–life-sustaining businesses; religious organizations were not treated as "life-sustaining" except when providing food, shelter, or social services.
- Tabernacle Baptist Church stopped in-person worship and used online broadcasts and drive-in services, but asserts a sincerely held belief that only in-person corporate worship satisfies its religious obligation.
- Tabernacle brought a pre-enforcement suit seeking a temporary restraining order (TRO) to enjoin enforcement of the mass‑gathering prohibition as applied to in-person religious services; violations carry criminal penalties under Kentucky law.
- The court held a telephonic hearing, considered similar cases and briefing, and found Tabernacle met pre-enforcement standing requirements and likelihood of enforcement based on prior enforcement against other churches.
- The court concluded Tabernacle was likely to succeed on its First Amendment free‑exercise claim because the orders were not neutral/generally applicable and were not narrowly tailored, and it granted a TRO allowing in-person religious services that follow applicable CDC social‑distancing and hygiene guidelines.
- The injunction was applied statewide as the executive orders affect all churches; further briefing on other constitutional and state claims was ordered and an expedited scheduling conference set.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Free exercise / likelihood of success | Orders burden religious exercise and are not neutral or generally applicable; therefore strict scrutiny applies and orders are not narrowly tailored | Orders are neutral, generally applicable, and justified by public health emergency (Jacobson) | Court: Plaintiff likely to succeed; orders not narrowly tailored; TRO granted for religious services following CDC guidelines |
| Standing (pre-enforcement) | Has intent to hold in-person services; orders proscribe conduct; credible threat of prosecution exists | Not disputed at TRO stage | Court: Pre-enforcement standing satisfied under Susan B. Anthony List |
| Irreparable harm | First Amendment injury presumed; temporary loss of worship is irreparable | Public‑health harms if gatherings occur | Court: Irreparable harm shown; permitting services that follow CDC guidance does not cause substantial additional harm |
| Scope of injunction | Seek injunctive relief protecting their services; AG asked for statewide relief | Defendants implicitly sought narrower, church‑specific relief | Court: Injunction may be statewide because the violation affects all churches; TRO enjoins enforcement statewide for compliant in-person services |
Key Cases Cited
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (recognizes broad state police power in public‑health emergencies but limits that power where measures are plainly beyond what safety requires)
- Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (laws that are not neutral/general applicability must meet strict scrutiny)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable harm)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (standards for pre‑enforcement standing challenges)
- In re Abbott, 954 F.3d 772 (5th Cir. 2020) (discusses Jacobson framework and review of emergency public‑health measures)
- ACLU Fund of Mich. v. Livingston Cnty., 796 F.3d 636 (6th Cir. 2015) (First Amendment injunction standards and irreparable‑harm presumption)
- Califano v. Yamasaki, 442 U.S. 682 (1979) (scope of equitable relief should be tied to the extent of the violation)
- Trump v. Int'l Refugee Assist. Project, 137 S. Ct. 2080 (2017) (preliminary injunctions are a discretionary exercise balancing equities)