Federal Judge: Drive-In Church Ban Unconstitutional

April 12, 2020 Updated: April 12, 2020

On the day before Easter Sunday, a federal judge in Kentucky enjoined Louisville Mayor Greg Fischer from enforcing a sweeping social-distancing order that banned drive-in church services.

The court ruling came some hours before the Trump administration vowed swift action to protect churches from overreach by local officials perceived as overzealous in their efforts to combat the CCP virus that causes the occasionally deadly disease COVID-19.

“During this sacred week for many Americans, [Attorney General William] Barr is monitoring [government] regulation of religious services,” Kerri Kupec, Department of Justice (DOJ) spokesperson, wrote on Twitter hours after the judge ruled.

“While social distancing policies are appropriate during this emergency, they must be applied evenhandedly & not single out religious [organizations]. Expect action from DOJ next week!”

Stories of government interference with religious worship have been streaming in from across the country.

A police officer in Mississippi reportedly told a religious minister preparing a drive-in service that his rights had been suspended by the local government and said attendees would not receive a citation if they left the site on their own.

San Bernardino County in California reportedly backed down on its ban of drive-in worship after being confronted by lawyers representing worshipers.

The U.S. District Court for the Western District of Kentucky issued the injunction at 2 p.m. on April 11, in the case cited as On Fire Christian Center Inc. v. Fischer.

The court took a dim view of the action of Fischer, a Democrat.

“The government plans to substantially burden their religious practices on one of the most important holidays of the Christian calendar, Easter Sunday[,]” the judge wrote, adding that 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.”

“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[,]” a reference to a popular satirical newspaper.

“This state of affairs has severe implications for religious Americans, because ‘freedom means that all persons have the right to believe or strive to believe in a divine Creator and divine law[,]” the judge wrote citing a Supreme Court precedent.

“But its importance extends beyond the liberty to worship. It threatens liberty of all kinds. That’s because, as [Alexis] de Tocqueville wrote, ‘religion, which among the Americans never directly takes part in the government of society, must be considered as the first of their political institutions; for if it does not give them the taste for liberty, it singularly facilitates use of it.’”

The temporary restraining order prevents Louisville “from enforcing; attempting to enforce; threatening to enforce; or otherwise requiring compliance with any prohibition on drive-in church services” at the premises of the plaintiff. The court has scheduled a telephonic hearing on the preliminary injunction motion for April 14.

The order was granted by U.S. District Court Judge Justin R. Walker, 38, who was appointed by President Donald Trump last year. On April 3, Trump announced his intention to elevate Walker to the U.S. Court of Appeals for the D.C. Circuit.

The plaintiff, a church, is represented by Plano, Texas-based First Liberty Institute, which describes itself as “the largest legal organization in the nation dedicated exclusively to defending religious liberty for all Americans.”

Fischer seemed to be following the lead of Kentucky Gov. Andy Beshear, a Democrat, who has adopted a particularly hard line on mandatory social-distancing measures aimed at protecting public health. Beshear said he was pleased that he reduced the number of churches conducting “in-person” services to just seven across the state.

U.S. Sen. Rand Paul, a Kentucky Republican, wrote a comment on Twitter about the governor’s actions: “Someone needs to take a step back here.”

After Beshear directed churches not to conduct in-person services, some congregations opted to try to adhere to social distancing by conducting services in which worshipers remained in their cars. But Fischer made it clear that he would have police surveil churches to record license plate numbers of worshippers to report them to local departments of health so they could compel them to self-quarantine for 14 days.

Some legal commentators have said that strong government restrictions on private activity are likely to continue as long as the public continues to support such measures.