CINCINNATI (CN) — A Kentucky church argued before the Sixth Circuit on Tuesday that despite modifications to allow in-person religious services, it is nevertheless entitled to injunctive relief to invalidate executive orders issued by the Democratic governor in response to the Covid-19 pandemic.
Maryville Baptist Church sued Governor Andy Beshear in April, shortly after it held in-person Easter services in defiance of regulations that banned all mass gatherings, religious or otherwise.
The church was initially denied an injunction by U.S. District Judge David Hale, a Barack Obama appointee, but the Sixth Circuit granted partial relief on May 2 by allowing for drive-in services across the commonwealth.
Beshear amended his order to allow for limited in-person religious gatherings on May 9, and increased capacity to 50% in June, decisions that he argues moot the case brought by the church.
The governor’s office filed its brief with the Cincinnati-based appeals court in July, saying it does not intend to reimpose previous restrictions on religious gatherings “in spite of evidence showing that places of worship remain places where the virus can spread.”
Beshear called the ban on mass gatherings a “neutral law of general applicability” and argued the church “cannot demonstrate with indisputable clarity that beyond all question, the mass gatherings order is a plain, palpable violation of the free exercise clause.”
In its reply brief, Maryville Baptist Church disputed the mootness of the case and argued Beshear failed to carry the “heavy burden of making absolutely clear that he cannot revert back” to the previous restrictions.
“Neither the plain language nor the regulatory context of the governor’s orders and guidelines demonstrate any authority to bind the governor irrevocably, or any durability against his fiat,” the brief states.
The church and its pastor, Dr. Jack Roberts, called the timing of Beshear’s decision to roll back some of the restrictions “litigation-induced,” and claimed in their brief it “betrays an intent to go back.”
Consolidated arguments heard by the Sixth Circuit on Tuesday involved both the Maryville Baptist Church and several parishioners.
Attorney Christopher Wiest argued on behalf of the parishioners. He told the panel his clients are “comfortable” with the injunction granted by Judge Hale after the May guidance from the Sixth Circuit, but argued the case is not moot because Governor Beshear has asked to dissolve the injunction.
The attorney said if Beshear is successful, there will be nothing to prevent him from reestablishing the same ban on religious services.
U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, acknowledged the “really tricky” nature of the case, but said the existence of “literally a thousand variables” makes it almost impossible for the same ban to be reenacted by Beshear.
In essence, the appeal is mooted because any new restriction passed by executive order would have to be challenged in another suit, the judge said.
Wiest disputed Sutton’s claim and told the court Beshear has asked for “‘leeway’ to reenact the same ban.”
Attorney Mathew Staver argued on behalf of the church itself, and said a failure by the appeals court to enforce the injunction would put he and his client in a “hamster’s cage” of continual litigation against ever-evolving mandates established by the governor.
While the attorney admitted the restrictions have changed over time to allow larger congregations at indoor services, the “internal discrimination” of the initial ban remains.
“It’s a very funny fact pattern,” Judge Sutton responded, “to accuse [Beshear] of bad faith.”
Senior U.S. Circuit Judge David McKeague, who was also appointed by George W. Bush, echoed his colleague’s feelings and said he was “dumbfounded” by the church’s decision to appeal a case in which it was granted the relief it requested.
Attorney Taylor Payne argued on behalf of Beshear and asked the panel to dismiss not only the appeal, but the entire Maryville Baptist Church case as moot.
Payne described the governor’s actions throughout the pandemic as reasonable and told the panel it was “very unlikely” that an exact replica of the initial ban would be reinstated at any point in the future.
The attorney cited “persuasive guidance” from the U.S. Supreme Court’s decision in South Bay United Pentecostal Church v. Newsom, a case in which a California church was denied relief from similar restrictions on in-person religious gatherings.
U.S. Circuit Judge John Nalbandian, an appointee of President Donald Trump, asked Payne why the decision in South Bay was applicable to the Kentucky case, considering Beshear’s initial order was an outright ban on in-person services.
Payne clarified his argument, telling Nalbandian the case is mooted because the outright ban was removed from the March order, which puts the current case in line with the Supreme Court’s decision in South Bay.
At the conclusion of Tuesday’s arguments, Judge Sutton urged Wiest and Payne to speak with another and come to a reasonable conclusion that would ensure the governor would not violate the injunction issued in the case overseen by Judge Hale.
The attorneys agreed, but no timetable has been set for a decision by the appeals court.
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