Earlier today, Federal District Judge Justin Walker issued a temporary restraining order allowing drive in church services in Louisville to continue, a practice which follows CDC guidelines but that the city had attempted to ban earlier in the week. Walker's opinion provides a brilliant summary of the importance of religious liberty and is a worthwhile read this Easter weekend.

Walker's Memorandum Opinion

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.

***


According to St. Paul, the first pilgrim was Abel. With Enoch, Noah, Abraham, Isaac, Jacob, and Sara, they “died in faith, not having received the promises” of God’s promised kingdom. But they saw “them afar off, and were persuaded of them, and embraced them, and confessed that they were strangers and pilgrims on the earth.”

The Plymouth Colony’s second Governor, William Bradford, alluded to St. Paul’s pilgrims when he recalled, years later, his fellow colonists’ departure from England. The land they were leaving was comfortable and familiar. The ocean before them was, for them, unknown and dangerous. So too was the New World, where half would not survive the first winter. There were “mutual embraces and many tears,” as they said farewell to sons, daughters, mothers, and fathers, too young or old or fearful or frail to leave the Old World.

But they sailed west because west was where they would find what they wanted most, what they needed most: the liberty to worship God according to their conscience. “They knew they were pilgrims,” wrote Bradford, “and looked not much on those things” left behind, “but lifted their eyes to heaven, their dearest country and quieted their spirits.”

The Pilgrims were heirs to a long line of persecuted Christians, including some punished with prison or worse for the crime of celebrating Easter – and an even longer line of persecuted peoples of more ancient faiths. And although their notions of tolerance left more than a little to be desired, the Pilgrims understood at least this much: No place, not even the unknown, is worse than any place whose state forbids the exercise of your sincerely held religious beliefs.

The Pilgrims’ history of fleeing religious persecution was just one of the many “historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause” of our Constitution’s First Amendment.” It provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”

At the time of that Amendment’s ratification, religious liberty was among the American experiment’s most audacious guarantees. For millennia, soldiers had fought and killed to impose their religious doctrine on their neighbors. A century before America’s founding, in Germany alone, religious conflict took the lives of one out of every five men, women, and children. But not so in America. “Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.”

Of course, pockets of society have not always lived up to our nation’s ideals. Slave owners flogged slaves for attending prayer meetings. Murderous mobs drove the Latter Day Saints into Utah. Bigotry toward Roman Catholics motivated a majority of states to enact Blaine Amendments. Harvard University created a quota system to admit fewer Jewish students. Five decades ago, a former member of the racist, anti-Semitic, and anti-Catholic Ku Klux Klan sat on the Supreme Court. And just over three decades ago, another ex-Klansman was the Majority Leader of the United States Senate.

Some of that bigotry was not state-sponsored. But in recent years, an expanding government has made the Free Exercise Clause more important than ever. It was not long ago, for example, that the government told the Supreme Court it can prohibit a church from choosing its own minister; force religious business owners to buy pharmaceuticals they consider abortion- inducing; and conscript nuns to provide birth control. Even after the Supreme Court vacated lower court decisions – by 9-0, 5-4, and 8-0 margins – the Free Exercise Clause remains a too- often-tested bulwark against discrimination toward people of faith, from religious cakemakers to religious preschoolers.

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 a divine law.” But its importance extends beyond the liberty to worship. It threatens liberty of all kinds. That’s because, as 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.”

***


That brings us to this case. “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.” 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.” She added, perhaps in an effort to be less threatening, “This is not a law enforcement matter, it’s a community matter.” But the Louisville Metro Police are not Peace Corps volunteers or community organizers; their job is law enforcement. And the Mayor’s spokesperson backed up the Mayor’s threat to use the police with a request for “anyone who sees violations from our social distancing guidance to reach out to 311” to inform on their family, friends, and neighbors.
Yesterday, on Good Friday, the Mayor’s threats continued: 
 • “In order to save lives, we must not gather in churches, drive-through services, family gatherings, social gatherings this weekend.”


• “If there are gatherings on Sunday, Louisville Metro Police Department will be there on Sunday handing out information detailing the health risks involved, and I have asked LMPD to record license plates of all vehicles in attendance.”


• “We will share that information with our public health department, so they can follow up with the individuals that are out in church and gathering in groups, which is clearly a very, very unsafe practice.”


Today is Holy Saturday. Tomorrow is Easter Sunday. This is for Christians, as Mayor Fischer has said, “the holiest week of the year.”


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.Yesterday, near the close of business, On Fire filed this suit, including a request for a Temporary Restraining Order.

It has asked the Court to stop defendants Mayor Greg Fischer and Metro Louisville from carrying out their plan to enforce their interpretation of the Governor’s social distancing order.

In reviewing a TRO motion, the Court considers whether:
1) On Fire has a strong likelihood of success on the merits;

2) On Fire would suffer irreparable injury without a TRO;

3) The “balance of the equities” tips in On Fire’s favor; and

4) “[A]n injunction is in the public interest.”51

On Fire can satisfy all four parts, and it is entitled to a Temporary Restraining Order. The threats against On Fire by the Mayor and Louisville Metro violate the First Amendment and Kentucky law.

Continue reading text of the temporary restraining order here.