Maryville Baptist Church, Inc. v. Beshear

977 F.3d 561

MARYVILLE BAPTIST CHURCH, INC.; Dr. Jack Roberts, Plaintiffs-Appellants,

v.Andrew G. BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky, Defendant-Appellee.

Theodore Joseph Roberts; Randall Daniel; Sally O'Boyle, Plaintiffs-Appellants,

v.Robert D. Neace, in his official capacity as Boone County Attorney; Andrew G. Beshear, in his official capacity as Governor of the Commonwealth of Kentucky; Eric Friedlander, in his official capacity as Acting Secretary of the Cabinet for Health and Family Services, Defendants-Appellees.

Nos. 20-5427/5465

United States Court of Appeals, Sixth Circuit.

Argued: October 13, 2020

Decided and Filed: October 19, 2020

ARGUED: Matthew D. Staver, LIBERTY COUNSEL, Orlando, Florida, for Appellants Maryville Baptist Church and Dr. Jack Roberts. Christopher Wiest, WIEST LAW, Crestview Hills, Kentucky, for Appellants Theodore Roberts, Randall Daniel, and Sally O'Boyle. Taylor Payne, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellees Andy Beshear and Eric Friedlander. Jeffrey C. Mando, ADAMS, STPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellee Robert Neace. ON BRIEF: Matthew D. Staver, Horatio G. Mihet, Roger K. Gannam, LIBERTY COUNSEL, Orlando, Florida, for Appellants Maryville Baptist Church and Dr. Jack Roberts. Christopher Wiest, WIEST LAW, Crestview Hills, Kentucky, Thomas B. Bruns, BRUNS, CONNELL, VOLLMAR & ARMSTRONG, LLC, Cincinnati, Ohio, Robert A. Winter, Jr., Fort Mitchell, Kentucky, for Appellants Theodore Roberts, Randall Daniel, and Sally O'Boyle. Taylor Payne, La Tasha Buckner, Travis Mayo, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, Wesley W. Duke, David T. Lovely, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellees Andy Beshear and Eric Friedlander. Jeffrey C. Mando, ADAMS, STPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellee Robert Neace. Barry L. Dunn, Matthew F. Kuhn, Brett R. Nolan, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Amicus Curiae.

Before: SUTTON, McKEAGUE, and NALBANDIAN, Circuit Judges.

PER CURIAM.

In response to the COVID-19 pandemic, Kentucky Governor Andy Beshear issued executive orders in March 2020 that barred religious services throughout the Commonwealth. The orders prompted several lawsuits and several district court rulings over whether the orders violated the free exercise rights of Kentuckians under the First Amendment of the United States Constitution. Our court issued two published decisions prohibiting the orders from going into effect during the litigation, each premised on legal assessments of the claimants’ free exercise rights and each still binding in the circuit. Maryville Baptist Church, Inc. v. Beshear , 957 F.3d 610 (6th Cir. 2020) ; Roberts v. Neace , 958 F.3d 409 (6th Cir. 2020).

After our decisions, the Governor ended the ban on religious services. At issue today is the status of the pending cases in light of our prior decisions, other developments, and the Governor's actions since then.

I.

On March 19, in response to the pandemic, Governor Beshear prohibited "[a]ll mass gatherings," including "faith-based" gatherings, in the Commonwealth. R.1-5 at 1 (20-5427). On March 25, the Governor issued stay-at-home orders applicable to all organizations that are not "life-sustaining." R.1-7 at 2 (20-5427). The second order treated religious organizations as not "life-sustaining," save when they provide charitable services such as serving food or offering shelter. Id. at 3.

On April 12, Maryville Baptist Church held an Easter service. Some congregants parked their cars in the church's parking lot and listened to the service over a loudspeaker. Others enjoyed it from the pews of the church. Kentucky State Police arrived and issued notices to the congregants that their attendance at the church service violated the Governor's orders. The officers recorded congregants’ license plate numbers and sent threatening letters to vehicle owners about their violations of state law.

Maryville's Easter service produced two lawsuits, one brought by Maryville Baptist Church and its pastor, the other brought by congregants of the same church.

Maryville Baptist Church's lawsuit . The church and pastor challenged the Governor's executive orders under the free exercise guarantee of the First Amendment to the United States Constitution, among other grounds. The complaint sought a temporary restraining order and preliminary injunction against the Governor's orders.

On April 18, the district court denied the church's motion for a temporary restraining order and requested expedited briefing on the motion for a preliminary injunction. On April 24, after failing to obtain a prompt ruling on the preliminary injunction motion, the church filed a notice of appeal and later moved this court for an emergency injunction pending appeal. On May 2, we enjoined the State from enforcing the Governor's orders against the church's drive-in outdoor services. Maryville Baptist Church , 957 F.3d at 616. At the same time, we ordered expedited briefing on the ban against indoor services. On May 8, the district court issued a preliminary injunction preventing the Governor from enforcing the indoor worship ban against the church. Maryville Baptist Church, Inc. v. Beshear , No. 3:20-cv-278-DJH-RSE, 2020 WL 2393359, at *3 (W.D. Ky. May 8, 2020).

The congregants’ lawsuit . Theodore Roberts, Randall Daniel, and Sally O'Boyle, each an attendee at Maryville's Easter service, sued the Governor, another state official, and a county official, claiming that the orders violated their free exercise rights under the United States Constitution. The district court denied relief on the free exercise claim. Roberts v. Neace , 457 F. Supp. 3d 595 (E.D. Ky. 2020). The congregants appealed. We granted an injunction pending appeal with respect to the ban on indoor services. "[D]uring the pendency of this appeal," we explained, the Commonwealth may not "enforc[e]" the orders so long as "the Church, its ministers, and its congregants adhere to the public health requirements mandated for ‘life-sustaining’ entities." Roberts , 958 F.3d at 416.

Tabernacle Baptist Church's lawsuit . One other lawsuit targeted the Governor's March 19 and 25 orders. On May 8, the Tabernacle Baptist Church, based in Nicholasville, Kentucky, sought to enjoin the orders on the ground that they violated its free exercise rights under the United States Constitution. That case met the same fate as the Maryville Baptist Church case. Indeed, on the same day, May 8, both district courts issued preliminary injunctions that prohibited enforcement of the orders. Tabernacle Baptist Church, Inc. of Nicholasville, Ky. v. Beshear , No. 3:20-cv-00033-GFVT, 459 F.Supp.3d 847 (E.D. Ky. May 8, 2020). The only difference between them is that the Tabernacle order applied to all churches across the Commonwealth. Id. at 856–57.

In apparent response to this court's published decision in Roberts v. Neace , 958 F.3d 409 (6th Cir. 2020), and the district court decisions granting preliminary injunctions in the Maryville Baptist Church and Tabernacle Baptist Church cases, Governor Beshear issued a new order on May 9. In that order, the Governor permitted indoor worship services so long as attendance didn't exceed 33% of the venue's occupancy capacity. On June 10, the Governor extended that order to 50% occupancy for each venue.

These developments brought the Tabernacle Baptist Church challenge to an end. After obtaining clarification from the Governor at a May 11 status conference that adherence by churches to the Commonwealth's safety guidelines was permissive, not mandatory, the Tabernacle Baptist Church and the Governor agreed that its case had become moot. As a result, the district court dismissed Tabernacle's claims against the State without prejudice.

That leaves the other two cases and these two appeals.

II.

Maryville Baptist Church's appeal . Maryville Baptist Church asks for one thing on appeal: an order requiring the district court to issue a preliminary injunction prohibiting the Governor from enforcing the worship ban against the church. But it already has what it wants. On May 8, the district court did just that. It entered a preliminary injunction preventing the Governor from enforcing the worship ban against the Church. Maryville Baptist Church , 2020 WL 2393359, at *3. The Governor never appealed that adverse decision. The 30 days for appealing the decision came and went on June 8. See 28 U.S.C. § 2107(a). And the injunction remains in place. There's nothing more to it than that. Having gotten what it wants,...