Legal expert says ruling to allow Kentucky's churches to reopen amid pandemic is a possibly deadly misinterpretation of Constitution

LOUISVILLE, Ky. (WDRB) — Houses of worship in Kentucky can open their doors Sunday for in-person services after a federal judge ruled against Gov. Andy Beshear's executive order prohibiting mass gatherings amid the COVID-19 pandemic.

A professor at the University of Louisville's Brandeis School of Law, however, thinks the law was misinterpreted.

"I think the judges have gotten the law wrong," U of L's Sam Marcosson said. "I think they have completely misapplied the First Amendment and the Exercise Clause."

The Free Exercise Clause, which bans the government from interfering with religious practices, except if they break laws, is at the heart of the arguments in U.S. District Court Judge Gregory F. Van Tatenhove's ruling against Beshear's executive order.

Tatenhove, of Frankfort, Kentucky, granted Tabernacle Baptist Church of Nicholasville, Kentucky, a temporary restraining order against Beshear's executive order prohibiting mass gatherings, including in-person worship. Because Beshear's executive order applied to houses of worship around the state, Tatenhove ruled the injunctive relief granted to Tabernacle Baptist "may extend statewide," according to court documents.

Beshear and other state officials are prohibited from "enforcing the prohibition on mass gatherings with respect to any in-person religious service which adheres to applicable social distancing and hygiene guidelines," the ruling reads.

"I think the judges, by comparing (in-person church services) to things like going to the grocery store, have completely missed the point and have given legal analysis that is going to result in people dying," Marcosson said.

Marcosson said his statement applies not only from a public health standpoint but also through the lens of the U.S. Constitution.

"The Supreme Court has held that the only guarantee that the Free Exercise Clause provides is the right for religion not to be treated less favorably," he said. "If we're going to look at these churches and worship services, they're being treated exactly like any other mass gathering."

Kentucky's houses of worship were slated for a May 20 reopening as part of Beshear's phased restart of the state's economy from the pandemic shutdown. In response to Tatenhove approving churches' reopening two weeks ahead of his schedule, Beshear on Saturday pointed out that judges facing similar lawsuits in other states ruled differently than what was seen in the Bluegrass State.

The state's reopening guidelines for houses of worship, which must be followed if congregations are holding in-person services, were made effective Saturday, the governor also announced. The guidelines call for houses of worship to "limit attendance to no more than 33% of the building occupancy capacity, including clergy and staff-employees, while maintaining social distance between household units of at least 6 feet," among other safety precautions.

Beshear on Saturday urged houses of worship that are not prepared to meet the state's guidelines to only resume in-person services when they are ready.

"I really hope that these rulings don't have some groups going back faster than they should, not doing everything that needs to be done and causing the spread of this virus," Beshear said.

Attorneys representing Tabernacle Baptist said Tatenhove made his ruling apply to houses of worship statewide at the request of Attorney General Daniel Cameron, who asked to join the lawsuit earlier this week.

"I think (Beshear) is doing the best that he can," said Hiram Sasser of the First Liberty Institute, a Texas-based nonprofit legal organization. "But he seems to have trouble drafting those orders as it relates to religious institutions in a way that complies with the Constitution."

Mike Abate, a First Amendment attorney in Louisville, expects more lawsuits to fly as the pandemic continues to unfold.

"We probably haven't seen the last of these cases," Abate said. "I assume there will be a number of other challenges that are continuing to be brought not only on First Amendment grounds but other grounds."

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