Two weeks before ban on gatherings is to be relaxed, church sues Beshear to have it lifted, and attorney general joins in

By Al Cross Published May 7, 2020 FEATURED, HEALTH POLICY

Tabernacle Baptist Church
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By Al Cross
Kentucky Health News

A Nicholasville church says in a federal lawsuit that Gov. Andy Beshear’s ban on mass gatherings is unconstitutional as applied to churches, and Attorney General Daniel Cameron has asked to join the case as a plaintiff.

Tabernacle Baptist Church filed the suit in the Eastern District of Kentucky, where Jessamine County is located. In a similar suit in the Western District, a Louisville-area church failed to get an injunction from a trial judge.

A federal appeals court issued an injunction protecting drive-up services, though Beshear had repeatedly encouraged such services. The court accepted the claim of Maryville Baptist Church in Hillview that drive-up worshipers had received notices telling them to quarantine for 14 days under threat of further legal action. Beshear said state police should not have issued such notices to drive-up worshipers. The latest suit repeats the claim, citing the Maryville case.

The Nicholasville church is holding drive-up services, but its lawsuit says “Tabernacle has a sincerely-held religious belief that online services and drive-in services do not meet the Lord’s requirement that the church meet together in person for corporate worship. Tabernacle also believes that online and drive-in church services are not substitutes for real in-person corporate worship.”

The suit cites the King James Version of the Epistle to the Hebrews, Chapter 10, verse 25, which calls for “not forsaking the assembling of ourselves together” and adds that Tabernacle also “has a sincerely-held religious belief that its congregants are called by the Lord to begin, at this time, meeting in person in the sanctuary the Lord provided them for this purpose.”

The emergency order says it is meant to thwart transmission of the coronavirus. The lawsuit says, “Tabernacle remains committed to physically gathering for regular services in a manner consistent with social-distancing precautions to ensure the safety and well-being of congregants,” following U.S. Centers for Disease Control and Prevention guidelines. It says that before the emergency, about 100 people attended services in a sanctuary that seats 400.

The suit claims, “There are numerous business organizations and other entities that defendants are not cracking down on where far more people come into closer contact with less oversight.” It mentions retail stores with “no numerical limitations or other restrictions that would cap the number of people who can gather together indoors.” Under orders from state and local health departments, large retailers are limiting the number of shoppers based on floor space.

In addition to citing the “free exercise of religion” clause of the First Amendment, the suit also cites the freedom-of-assembly clause and says allowing drive-up services does not meet the case law requiring First Amendment exceptions to use the least restrictive alternative. And it cites the recent Kentucky Religious Freedom Restoration Act, saying it is equivalent to a similar federal law.

Attorney General Cameron, a Republican elected to the office Beshear held until December, has made several legal and rhetorical challenges to Beshear’s orders. In a press release saying he has asked to become a plaintiff, he said the orders “target the practice of religion in every part of the commonwealth by allowing secular activities while prohibiting faith-based activities.”

Beshear has said he is treating religious gatherings just like any other gatherings, and U.S. District Judge David Hale agreed with him in the Western District case. The appeals court deferred a ruling on that question.

Hale was appointed by President Barack Obama. The latest case was assigned at random to District Judge Gregory Van Tatenhove, who was appointed by President George W. Bush. He and Cameron are both proteges of Senate Majority Leader Mitch McConnell.

U.S. Attorney General William Barr has said the Justice Department might support challenges to pandemic restrictions that it thinks violate First Amendment rights.

Asked about the suit yesterday, Beshear noted with some exasperation that he has announced that his gatherings order will be relaxed on May 20, with yet-to-be issued guidance for houses of worship. “Nobody can meet the CDC guidelines tomorrow,” he said. “We’re gonna get to a place where we give clear guidance that folks can follow.”

Beshear talked about his own faith and how his orders have affected his family’s faith practice, and said “I know we’re doing the right thing.” He said Jesus’s most important commandment was to “love your neighbor as yourself,” and concluded, “Make sure when you reopen your church that it doesn’t cause harm to people in your congregation.”