Judge Rules Kentucky’s Mass-Gathering Ban Unconstitutional

Kentucky Governor Andy Beshear speaks to the media during a Nov. 6, 2019, press conference in Louisville. (AP Photo/Bryan Woolston)

FRANKFORT, Ky. (CN) — Restrictions on mass gatherings put in place by Governor Andy Beshear in response to the Covid-19 pandemic are unconstitutional, a federal judge ruled on Wednesday.

U.S. District Judge Gregory Van Tatenhove ruled that the restrictions enacted in the wake of the Covid-19 pandemic that limit the number of people who can gather are too broad and wrote that “the Governor has gone too far here.”

“Plaintiffs do not dispute that the Governor has a significant interest in protecting Kentuckians from Covid-19. They simply argue the Governor has gone too far in his pursuit of that interest. Based upon the record before it, the Court agrees,” Van Tatenhove wrote in his 24-page ruling.

The original lawsuit was filed by four Kentucky residents, in advance of a planned May 23 protest, and sought to challenge the state’s restrictions on mass gatherings. In that ruling, Van Tatenhove rejected the plaintiffs’ motion for an injunction because Beshear said he would not enforce the order against the protesters.

The case then proceeded to the Sixth Circuit, which found that the protest could be held as a “drive-in” or “drive-through” affair, but the panel did not rule regarding the legality of in-person protesting and the state’s restrictions.

The Sixth Circuit’s ruling landed the case back in the lap of Van Tatenhove, who this time found the restrictions unconstitutional, a welcome ruling for the plaintiffs’ lawyer Christopher Wiest.

“Protesting is a fundamental right, and as recent events have shown, a right in a free society to express dissent and affect change, whether it is protests about lockdown orders, for racial justice in policing, or even protesting the failure to keep a promise on unemployment,” Wiest said in a statement to Courthouse News. “Free speech and protests, like freedom of religion in church services, cannot be relegated to third class status in public health orders, even in a pandemic.”

The ban currently limits mass gatherings of more than 10 people, which will expand to 50 people on June 29. This easing of restrictions will allow restaurants and bars to open to 50% capacity.

“It has been a long road dealing with this virus. But by following medical guidelines, we have gone from a time when our cases were doubling every week, to a point where we are safely beginning to reopen businesses and our economy,” Beshear said during a conference on Monday.

With some states seeing a rise in Covid-19 cases in the past few days, Kentucky has seen a total of 511 infections so far this week.

The very real threat of the pandemic was not absent from Van Tatenhove’s ruling.

“If you think about it, the very nature of a pandemic threatens our liberty in every conceivable way. A perfect response would require everyone to stay put and limit contact with everyone else. But that is not the world we live in,” he wrote. “Policy makers are necessarily balancing interests. And courts should give them deference to do this difficult and important task. While that deference may be robust in a time of crisis it is not absolute.”

Beshear’s office did not immediately respond to a request for comment.

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