6th Circuit Enjoins Ban On In-Person Worship Services Reprise

We have a follow-up in which the 6CA stands its ground regarding an injunction barring enforcement pending appeal of Kentucky Governor Andrew Beshear's COVID-19 order banning in-person church services. It makes clear that it accepts the action is not a matter of animus or singling out churches specifically. But, the exceptions does show it is not a general applicable rule (this is often a stickler -- few things are totally absolute, so we have an all/nothing problem unless exceptions are upheld using strict requirements).  And, the general told holds via a per curiam without dissent or concurrence to at least give a hint more supportive of the other side.

"Keep in mind that the Church and its congregants just want to be treated equally."  By getting special dispensation from rules. The rejoinder is that there are exceptions and we get this with a Gorsuch type tone:

Come to think of it, aren’t the two groups of people often the same people—going to work on one day and going to worship on another?  How can the same person be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings?  The distinction defies explanation, or at least the Governor has not provided one.

Well, the lower court, as I said last time, did provide one:

Plaintiffs seek to compare in-person attendance at church services with presence at a liquor store or “supercenter store[].” The latter, however, is a singular and transitory experience: individuals enter the store at various times to purchase various items; they move around the store individually—subject to strict social-distancing guidelines...—and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose.

The court of appeals is not impressed at such logic:

The Governor suggests that the explanation for these groups of people to be in the same area—intentional  worship—creates  greater  risks  of  contagion  than  groups  of  people,  say,  in  an  office setting or an airport.  But the reason a group of people go to one place has nothing to do with it.  Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there.  So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another for similar lengths of time?  It’s not as if law firm office meetings and gatherings at airport terminals always take less time than worship.

The opinion notes that the people involved promise to follow social distancing rules and not do things like share chalices or the like.  As noted last time, there is evidence that the rules were not followed in various cases already.  They are violated generally (see, e.g., people in my area not wearing masks in public places though they are required).  It to me is ridiculous to say that the "reason a group of people go to one place has nothing to do with it."  See the previous paragraph. The specifics factor in here and it is just silly that there is not more chance of extended interaction at a damn church service than the likes of an airport terminal.

Various exceptions are not likely in practice, and general rules are logically formulated that way, to ever have the same type of gathering than church services.  A laundromat a place with limited people where you stay for limited periods of time.  I have gone to one repeatedly the last couple months and say this from inexperience.  Question that law office meetings will have the time and numbers (including more likely older people) of a service.  Many will likely be by phone or video chat. And, airports will have less tendency of interaction, generally being atomistic locations. Plus, there is more chance there to use blunt social distancing rules.

Again, religion is an important part of human existence, especially in these times, and the Constitution and our laws do specifically protect it.  So, if possible, I understand the concern over allowing in-person services which are seen as fundamental to many to practice their religion.  But, there is good reason to apply social distancing rules to religious services even if certain life sustaining matters are allowed. If anything, the exceptions already are probably somewhat too broad. Religious services have aspects that also make them more concerning, aspects which in other ways are benign and go to the heart of their nature.

As  individuals,  we  have  some  sympathy  for  Governor  DeWine’s  approach—to  allow  places of worship in Ohio to hold services but then to admonish all of them (we assume) that it’s “not  Christian”  to  hold  in-person  services  during  a  pandemic.    Doral  Chenoweth  III,  Video: Dewine says it’s “not Christian” to hold church during coronavirus, Columbus Dispatch, April 1, 2020.  But the Free Exercise Clause does not protect sympathetic religious practices alone.  And that’s exactly what the federal courts are not to judge—how individuals comply with their own faith as they see it.

I rather not have judges provide asides like this in official opinions regarding what their "sympathies" are respecting how to be a good Christian.  If we want to provide a full accounting of what religious liberty entails, it is likely not having what amounts to quasi-official endorsements of not only Christianity (there are other types of worship) but sectarian suggestions on top of that. Basically, religious liberty includes following certain general rules, and contra to the analysis provided (with limited hints of the state side), that if anything goes against the claims here.

Anyway, it's a bit of a have your cake and eat it too approach that is of limited value.  I still think drive-in services might work, but as a matter of allowable discretion, without more, inclined to support the governor here. But, given the rules of the game these days, who is to know?  Still, especially given the district court opinion, I rather hear more than what is provided here.