On April 11th, the Saturday before Easter, Federal District Judge Justin R. Walker of the Western District of Kentucky granted a Temporary Restraining Order allowing churches in Louisville Kentucky to hold drive through Easter Services.
I hope other Judges in the United States understand the importance of religious liberty like Judge Walker does. From his opinion:
"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 (Alexis) de Tocqueville wrote (in 1787), “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.”"
Excerpts of the decision are below, as is the full opinion. Kevin
"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.
*********
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 (Sen. Byrd) 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.
*********
… Here, 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. Moreover, Louisville has not prohibited parking in parking lots more broadly – including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.” That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”
Louisville will be (highly) unlikely to make the second of those two showings. To be sure, Louisville is pursuing a compelling interest of the highest order through its efforts to contain the current pandemic. But its actions violate the Free Exercise Clause “beyond all question” because they are not even close to being “narrowly tailored to advance that interest.” As in Lukumi Babalu, the government’s “proffered objectives are not pursued with respect to analogous non- religious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.”
In other words, Louisville’s actions are “underinclusive” and “overbroad.” They’re underinclusive because they don’t prohibit a host of equally dangerous (or equally harmless) activities that Louisville has permitted on the basis that they are “essential.” Those “essential” activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is “essential,” so is Easter..."
I hope other Judges in the United States understand the importance of religious liberty like Judge Walker does. From his opinion:
"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 (Alexis) de Tocqueville wrote (in 1787), “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.”"
Excerpts of the decision are below, as is the full opinion. Kevin
"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.
*********
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 (Sen. Byrd) 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.
*********
… Here, 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. Moreover, Louisville has not prohibited parking in parking lots more broadly – including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.” That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”
Louisville will be (highly) unlikely to make the second of those two showings. To be sure, Louisville is pursuing a compelling interest of the highest order through its efforts to contain the current pandemic. But its actions violate the Free Exercise Clause “beyond all question” because they are not even close to being “narrowly tailored to advance that interest.” As in Lukumi Babalu, the government’s “proffered objectives are not pursued with respect to analogous non- religious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.”
In other words, Louisville’s actions are “underinclusive” and “overbroad.” They’re underinclusive because they don’t prohibit a host of equally dangerous (or equally harmless) activities that Louisville has permitted on the basis that they are “essential.” Those “essential” activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is “essential,” so is Easter..."
