Judge Justin Walker, who has been nominated by Donald Trump to the D.C. Circuit and is close to Supreme Court Justice Brett Kavanaugh and Senate Majority Leader Mitch McConnell, found that the city unconstutionally prohibited drive-in religious services while not imposing such restrictions on parking at restaurants and liquor stores.
The Mayor of Louisville, Kentucky, has threatened to fine anyone who attends a drive-in Easter Sunday church service, even though attendees would remain in their cars in the parking lot.
The On Fire Christian Center sought an emergency Temporary Restraining Order (TRO)(pdf.) which was granted today by federal Judge Justin Walker in the Western District of Kentucky. Walker, a former clerk for Supreme Court Justice Brett Kavanaugh and protege of Mitch McConnell, recently was nominated to the Court of Appeals for the District of Columbia Circuit, and his nomination is expected to incide a scorched-earth opposition.
The TRO, granted ex parte without giving the City of Louisville a chance to be heard, provides in part:
1. The Court GRANTS the motion for a temporary restraining order filed by On Fire Christian Center, Inc. (“On Fire”) against Mayor Greg Fischer and the City of Louisville (together, “Louisville”).
2. The Court ENTERS this Temporary Restraining Order on Saturday, April 11, 2020 at 2:00 P.M.1
3. The Court ENJOINS Louisville from enforcing; attempting to enforce; threatening to enforce; or otherwise requiring compliance with any prohibition on drive-in church services at On Fire.2
4. Unless the Court enters this Temporary Restraining Order, the members of On Fire will suffer irreparable harm.3 The government plans to substantially burden their religious practice on one of the most important holidays of the Christian calendar, Easter Sunday.4
5. Notice to Louisville before entering this Temporary Restraining Order isn’t necessary.5 The facts in On Fire’s affidavit “clearly show that immediate and irreparable injury, loss, or damage will result to [On Fire] before [Louisville] may be heard in opposition.”6 J. Brooken Smith, On Fire’s lawyer, certified that he sent Louisville a letter yesterday detailing their potential claims but didn’t hear anything back.7
6. The Court issued this Temporary Restraining Order without notice because Easter Sunday is less than one day away.8 Providing notice to Louisville before entering this Temporary Restraining Order would be impractical in such a short period of time.
The opinion does not question the governments ability to impose restrictions on the public to fight a pandemic. The central reasoning of the opinion is that because Louisville does not impose similar restrictions on parking at drive-through restaurants or liquor stores, singling out a religious establishment for more harsh treatment is unconstitutional.
“As we are all painfully aware, our nation faces a public health emergency caused by the exponential spread of COVID-19, the respiratory disease caused by the novel coronavirus SARS-CoV-2.”35 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.36 He asserted, “It’s not really practical or safe to accommodate drive-up services taking place in our community.”37 Drive-through restaurants and liquor stores are still open.38
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On Sunday, tomorrow, Plaintiff On Fire Christian Center wishes to hold an Easter service, as Christians have done for two thousand years. On Fire has planned a drive-in church service in accordance with the Center for Disease Control’s social distancing guidelines.49
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In this case, Louisville is violating the Free Exercise Clause “beyond all question.”53
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.54 ….
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.”57 That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”58
Louisville will be (highly) unlikely to make the second of those two showings. To be sure, Louisville is pursuing a compelling interest of the highest order through its efforts to contain the current pandemic. But its actions violate the Free Exercise Clause “beyond all question”59 because they are not even close to being “narrowly tailored to advance that interest.”60
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