Two federal judges issued rulings Friday in favor of Kentucky churches that want to hold in-person worship services, and a third court issued a similar ruling on Saturday.However, these victories are only very partial. In response to the orders, Kentucky on the same day issued Guidelines for Houses of Worship:U.S. District Judge Gregory Van Tatenhove granted a temporary restraining order Friday, preventing Gov. Andy Beshear from “enforcing the prohibition on mass gatherings with respect to any in-person religious service which adheres to applicable social distancing and hygiene guidelines.”
. . . “There is ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking,” Van Tatenhove wrote. “If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection.”
In the second ruling, U.S. District Judge David Hale granted an injunction allowing Maryville Baptist Church in Louisville to hold in-person worship services “so long as the church, its ministers, and its congregants adhere to public health requirements set by state officials.”
The level of micromanagement here is astonishing. If the pews aren't spaced at a pitch of at least six feet, alternate rows must presumably be roped off. (Does the government rope off alternate seat rows on buses, trolleys, or trains?)* * *
- Places of worship conducting in-person services should 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 six (6) feet. This means that there must be six (6) feet between individuals on a row and individuals between rows, such that a six-foot radius is maintained around all household units. A place of worship that cannot maintain this space must further reduce its occupancy capacity until it is achieved.
- Places of worship should ensure, to the greatest extent practicable, that clergy, staffemployees, volunteers and congregants wear coverings (e.g., cloth mask or bandana) over their mouths and noses while attending services.
- Singing during services creates a higher risk of spreading infectious particles. Choirs should avoid singing. Congregants should wear face coverings and consider a greater than six feet social distance from others if they choose to sing. Houses of worship should consider alternatives to congregational singing, including by playing pre-recorded or live instrumental music (e.g. pianos and guitars - no wind instruments) during services.
And even if the in-person worship is allowed, the state is enforcing liturgical practice comparable to the worst days in Massachusetts in the 1600s! No singing! No wind instruments! Presumably the sheriff is entitled to rush in and haul out those worshipers who don't conform.
What we're seeing is that "blue" governors, even if they want to appear to tolerate religious services, are going to make only the most incremental concessions that are so burdensome in practice that parishes will still be discouraged from undertaking the effort. We've already seen this strategy at work in Portland, OR.
I can imagine that you could have follow-on cases where such enforcement of liturgical practice could also amount to an establishment of religion, but the problem there is that this would clog the court system and require years to resolve, time and money nobody has. On top of that, the consensus is emerging that the country is becoming fed up with the lockdown, especially as governors extend it into the indefinite future.
Things will probably have to be resolved by ordinary citizens beginning to disregard such orders on the ground, aided by the increasing numbers of sheriffs and county boards that refuse to enforce them.
