From today's decision by Judge Justin R. Walker (W.D. Ky.):
On Holy Thursday, an American mayor criminalized the communal celebration of Easter.
That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. But two days ago, citing the need for social distancing during the current pandemic, Louisville's Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship—and even though it's Easter.
The Mayor's decision is stunning.
And it is, "beyond all reason," unconstitutional. {Cf. Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).} …
Four days ago, defendant Mayor of Louisville Greg Fischer said it was "with a heavy heart" that he was banning religious services, even if congregants remain in their cars during the service. He asserted, "It's not really practical or safe to accommodate drive-up services taking place in our community." Drive-through restaurants and liquor stores are still open.
Two days ago, on Holy Thursday, the Mayor threatened church members and pastors if they hold a drive-in Easter service: "We are not allowing churches to gather either in person or in any kind of drive- through capacity." "Ok so, if you are a church or you are a churchgoing member and you do that, you're in violation of the mandate from the governor, you're in violation of the request from my office and city government to not do that." "We're saying no church worshiping, no drive-throughs."
The same day, the Mayor's spokesperson said he would use the police to deter and disburse drive-in religious gatherings: "Louisville Metro Police have been proactive about reaching out to those we've heard about, and discouraging organizers from proceeding." …
There is no doubt that society has the strongest of interests in curbing the growth of a deadly disease, which is the interest Mayor Fischer and Metro Louisville (together, "Louisville") has asserted when ordering churches and churchgoers to stay home on Easter. "When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some 'real or substantial relation' to the public health crisis and are not 'beyond all question, a plain, palpable invasion of rights secured by the fundamental law.'" {In re Abbott, 2020 WL 1685929, at *7 (5th Cir. Apr. 7, 2020) (quoting Jacobson, 197 U.S. at 31).}
In this case, Louisville is violating the Free Exercise Clause "beyond all question."
To begin, Louisville is substantially burdening On Fire's sincerely held religious beliefs in a manner that is not "neutral" between religious and non-religious conduct, with orders and threats that are not "generally applicable" to both religious and non-religious conduct. "The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause." In Lukumi Babalu, the City of Hialeah's ban on animal sacrifice was not "neutral" or "generally applicable" because it banned the Church of Lukumi Babalu's ritualistic animal sacrifices while at the same time it did not ban most other kinds of animal killing, including kosher slaughtering and killing animals for non-religious reasons.
Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs—including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly—including, again, the parking lots of liquor stores.
When Louisville prohibits religious activity while permitting non-religious activities, its choice "must undergo the most rigorous of scrutiny." That scrutiny requires Louisville to prove its interest is "compelling" and its regulation is "narrowly tailored to advance that interest." Louisville will be (highly) unlikely to make the second of those two showings…. As in Lukumi Babalu, the government's "proffered objectives are not pursued with respect to analogous non-religious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree."
In other words, Louisville's actions are "underinclusive" and "overbroad." They're underinclusive because they don't prohibit a host of equally dangerous (or equally harmless) activities that Louisville has permitted on the basis that they are "essential." Those "essential" activities include driving through a liquor store's pick-up window, parking in a liquor store's parking lot, or walking into a liquor store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is "essential," so is Easter.
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