Religious liberty

Some Backstory on the Louisville Free Exercise Clause / Drive-in Church Services Case

Did Louisville actually purport to ban drive-in church services, or was it just asking people to voluntarily refrain? And what notice did the City have about the temporary restraining order request?

|The Volokh Conspiracy |

I've done some more digging on the facts and the procedure in this case, and wanted to pass them along, for whatever they are worth.

[1.] Did the Mayor of Louisville purport to forbid drive-in church services, or was he just asking for people to voluntarily refrain from them? Some people asked that question, and here's what I found.

Mayor Fischer's Thursday video statement, which was cited in the court's opinion, sounds to me like a combination of prohibition and an appeal to good sense, and not just a call for purely voluntary compliance.  The key quotes on this are (emphasis added):

[6:38]  Another call-out to all of our houses of worship: We are saying that you cannot have your services. We are not allowing drive-through services as well.

[8:45] So for the good of our loved ones and our community, no in-person or drive-through worship services, or any holiday gathering, including family gathering, this weekend.

[40:17] OK, there's a question, "Is there concern that with the city not keeping churches from continuing to gather, others will see a green light to break social distancing guidelines?" Look, I have massively poorly communicated if you think that's the case. We are not allowing churches to gather, either in-person or any kind of drive-through capacity. If we are a church or you're a church-going member, and you do that, you are in violation of the mandate from the governor, you are in violation of the request from my office and city government to not do that. So not, that's the last thing, we're not, we're saying no, no church worshipping, no drive-throughs. Why? We want to save your life and save the lives of other people in this community. It distresses us greatly to have to do this during Holy Week.

Then, as the court noted, in his Friday statement the Mayor said,

We're continuing to talk to these folks and ask them not to do that, to please reconsider. If there are gatherings on Sunday, Louisville Metro Police Department will be there on Sunday handing out information detailing the health risks involved, and I have asked LMPD to record license plates of all vehicles in attendance.  We will share that information with our public health department, so they can follow up with the individuals that are out in church and gathering in groups, which is clearly a very, very unsafe practice.

And this is consistent with media accounts about the Mayor's Tuesday statement, which interpreted his remarks as "Fischer: Drive-in, parking lot Easter services not allowed in Louisville" (WLKY), and "Louisville Mayor Greg Fischer said Tuesday that 'with a heavy heart' he will not allow drive-in religious services during this week of Passover and Easter" (Louisville Courier-Journal) .

The Mayor's "not allowing" statements are also backed, as is "the mandate from the governor" generally, with the threat of criminal punishment. Ky. Code §§ 39A.190, 39A.990 make clear that violating the Governor's orders is a crime, and local police departments can enforce them, as they enforce other statewide rules, based on how local officials interpret them. (The Louisville department answers to the Mayor.)

2. This having been said, in his Friday video, the Mayor seemed to focus on persuasion rather than on prohibition, at least once he was asked about the Kentucky Attorney General's opinion that said the Governor's order doesn't ban drive-in services. At around 39:35 in that video, he said, "You might have a legal right to do something but that doesn't make it the right thing to do. I'm just appealing to people's greater sense of protection for themselves and for our community." "I'm just asking people to do the right thing…. I'm asking people to use their judgment."

At the same time, earlier in the Friday video, he spoke more about what the order forbids: At 11:45 he said, "We are aware of a handful of churches that are still gathering, or still intend to gather, in violation of the Governor's executive order," shortly after equating drive-through services with in-person services (11:20)—though he then also spoke of "my imploring and begging, requesting that they don't do it" (12:00).

3. The City had notice of the lawsuit (though not very long notice) and could have filed a simple statement with the court saying that drive-in services weren't being prohibited, if that was the Mayor's view. On Thursday at 11:40 am, the Church's lawyer e-mailed the Mayor's office a letter asking whether drive-in services would be allowed Easter Sunday, set forth the Church's legal argument that they should be, and closed with,

As Easter Sunday is only a couple of days away, please let me know by 4:00 p.m. ET today, Thursday, April 9, if [the Church] is permitted to hold its drive-in service on Easter so that the Church may consider its next steps.

As I understand it, the City didn't respond to the Church. Then, when the Church's papers were filed that Friday afternoon, they were sent to the City's lawyers at 5:30 pm Friday and to the Kentucky AG's office at 7 pm Friday. At 10 pm Friday, the Mayor's counsel confirmed that they had gotten the Complaint and the Motion and had forwarded them to the Jefferson County Attorney's Office, which would be representing the City.

The City's lawyers didn't respond further substantively to the Church, at least before the TRO was issued. The City therefore had a chance to respond, it seems to me; the timing was tight, to be sure, but this is what happens with emergency TRO requests filed Friday in response to perceived threats Tuesday and Thursday about a church service scheduled for Sunday morning.

The Mayor Tweeted Saturday, after the decision was released,

Likewise, he told the media, "I regret that the judge did not allow us to present evidence that would have demonstrated there has been no legal enforcement mechanism communicated. We attempted twice to contact the court." But it seems to me that the Mayor's office was indeed "allowed" to offer such an explanation, by filing a written statement. (A statement that "the Church is free to hold its drive-in service, and we will not take any coercive action with regard to that, though we ask them to refrain for the sake of public safety" wouldn't have been hard for the County Attorney's office to draft, even on a rush basis.) And the standard way to "contact the court" about a pending motion is to electronically file something with the court; I don't see any way in which the court prevented the City from doing this.

Again, I acknowledge that it might be hard to do that Friday night or Saturday morning, but not impossible. And large cities and counties tend to have considerable experience dealing with such emergency motions (though I agree that the city and county administrators tend to be understandably especially distracted these days by other pressing problems).

4. The Mayor, in some of his comments, had a plausible argument for why drive-in services should be forbidden, even when drive-through restaurants, liquor stores, and ice cream parlors are allowed. Say people show up at a drive-in service with their small kids in the back seat. Halfway through, one of the kids needs to go to the bathroom. What's going to happen? There's a good chance that the child and a parent will get out of the car, and others might be doing the same thing.

That might, I think, be an adequate response to the court's argument that Louisville was targeting religion for special burdens, even if Louisville was seen as actually forbidding drive-in services. ("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.")

Perhaps the distinction there wouldn't have been religious activity forbidden but nonreligious activity allowed, but extended drive-in presence (at churches, drive-in theaters, drive-in political rallies, or the like) forbidden but brief drive-through activity (at drive-through restaurants or bars) allowed. As to parking in parking lots more broadly, presumably there too the risk of kids getting out of the car because they need to use the bathroom would be quite low.

5. It would have been better, I think, if the opinion had been framed more tentatively and less rhetorically, and if the Court had affirmatively sought out a response from the City. It's generally better to be cautious and understated, it seems to me, especially when things are happening in a hurry, and when one is hearing from only one side of the litigation.

There is a publicly accessible telephonic hearing in the case tomorrow morning, by the way, which I plan to listen in on; I might have some follow-up information then. [UPDATE: The hearing has been rescheduled to tomorrow at 2 pm Eastern.]

NEXT: Michigan Bans 'All Public and Private Gatherings,' Will Still Allow Lottery Sales

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  1. I am told that we got into the Korean War because one of Truman’s Ambassadors gave a speech on US Policy and neglected to mention the Korean Peninsula on a list of places where the US would resist Communist incursions. The Soviets politely asked if we wished to clarify her comments, we didn’t, and they took it as a signal that we wouldn’t resist an invasion.

    True or not — I really don’t want to fight over it — it shows how careful one has to be with words. When the Mayor has essentially become a dictator, ruling by decree, he has to be damn careful to distinguish between what he is ordering and what he is suggesting.

    Personally, I think he knew what he was doing and intentionally gave the message that the city would prohibit, but didn’t want to give the church enough to sue him over — and I think the judge saw through that. My take is that the judge sounds p*ssed and it should be an interesting hearing tomorrow.

    1. No idea as to the veracity of the Truman / Korean story. A similar story says that Secretary Hull mistakenly said the oil embargo would be lifted once the Japanese got out of Manchuria, when he really meant just China; or something similar. Not that the Japanese would have been willing to lose face by doing so, but it remains a story of words mattering.

      1. The April Glaspie story is also similar. It’s hard to imagine that these kinds of stories are true.

        1. It’s definitely hard to imagine that countries really make their decisions as to whether to invade other countries based on these sorts of things.

          But it is pretty easy to imagine that sometimes the deliberate, slowwalked nature of diplomacy means that an objection never gets conveyed.

          1. I don’t know about that, but in looking up a cite for the 1979 “wrong tape” incident, I found four more… https://www.history.com/news/5-cold-war-close-calls

    2. If you don’t want people to argue with you about whether your obviously untrue stories are true or not, maybe you should stop telling them?

      1. Not wanting to spend the time to look up the citations in a course I took in the last century is not the same as making stuff up.

  2. EV
    The link to that publicly-accessible telephonic hearing??? (God, for the court’s sake, I assume and hope that all such public listeners are muted!)

    1. Here’s the docket entry:

      The Court will hold a telephonic hearing on the preliminary injunction motion on April 14, 2020 at 11:00 A.M. Counsel shall email Ms. Megan Jackson at [Megan_Jackson at kywd.uscourts.gov] for the hearing’s call-in number and access code. Members of the public interested in listening to the hearing may also email Ms. Jackson.

      1. The hearing has been rescheduled to tomorrow (Tuesday) at 2 pm Eastern

    1. No joke, a lot of people believe he went straight to heaven.

      Tolerance means that you have to accept their views…

      1. Tolerance to many people means you only have to accept their views but not the other way around.

      2. Tolerance isn’t a ‘tolerate everything or tolerate nothing’, chief.

      3. Depends on what you mean by “accept.”

        They can believe what they want. But I’m entitled to my opinion about it.

        And I think that who conduct these services, and encourage their parishioners to attend, are doing them a disservice, not to mention possibly damaging those the attendees later come into contact with.

        1. Just so. The notion that “tolerance” has got something to do with agreeing with, or coming to support, the behavior that you’re tolerating is a very annoying misconception.

          Tolerance is a much more important and more civilised value than mere gooey kumbayaity. It’s got nothing to do with hugging your enemy, it has to do with biting your lip, and refraining from punching him in the throat.

          It involves restraining yourself from assaulting, or punishing, or otherwise trying to impose your contrary will on people who are doing something you do, quite strongly, object to. It is an exercise in self restraint under provocation, and it is fundamental to any kind of liberal society.

        2. You’re entitled to your opinion, sure. As am I.
          Personally, I think holding a full, packed service was a mistake. But importantly, it was the pastor’s mistake to make.

          Tolerance means accepting that someone else’s opinion is different from yours, and letting them make their choice, without trying to force them (physically, legally, or otherwise) into your opinion.

          Tolerance means protecting the rights people have to act differently, even if they aren’t choices you would personally make.

          Even if you disagree with their choices, and think they might be dangerous, tolerance means letting them make that choice for themselves.

          A lack of tolerance includes using the power of physical force, the power of the law, the power of social pressure to enforce what you consider the “correct” choice, despite their opinion.

          1. 1) Letting people kill themselves is not a universally held value in American society. Helmet laws, seatbelt laws, etc.

            2) Even so, choices with externalities are the issue here.

            3) Tolerance is a continuum; you treat it like a binary. There’s lots of things our society doesn’t tolerate; that doesn’t make us intolerant.

            1. Tolerance is a continuum; you treat it like a binary.

              No. Either you tolerate something or you don’t. It’s binary.

              The fact that you have a large sample, where you’ve chosen to tolerate 1,220 times and not to tolerate 2,098 times, doesn’t change that. When you’ve decided not to tolerate something, that’s intolerant. Not somewhere on a continuum from tolerant to intolerant. It may be justifiably intolerant, but that’s a different question.

              1. What if something is tolerated under some circumstances but not others? Or has different degrees of tolerance in that some things will get you arrested whereas others will merely get you dirty looks?

                1. I agree that once you’re into intolerance, there’s a continuum of sanctions.

                  You may choose not to tolerate something and punish it with a fine, or by a whipping or by public execution. That’s not a variation in the quantity of your tolerance, which is zero in each case. But it’s a variation in the punishment associated with your intolerance.

                  What if something is tolerated under some circumstances but not others?

                  The Devil is in the detail. If your tolerance is predictable – ie you tolerate swearing by your daughter, but not by your son – then you’re being tolerant in one case and intolerant in another. Still binary.

                  But if your tolerance is not predictable – ie you send the police round to arrest churchgoers, but not every Sunday, and the police only go to roughly 10% of the churches in the district on any particular Sunday, then that’s looks more like a deliberate chilling effect on the generality of churchgoers – ie you are being intolerant across the board, but your punishment is not “arrest” it’s “a 7.43% chance of arrest.”

                  But I’m willing to be contradicted. It’s an intersting philosophcal question.

          2. Even if you disagree with their choices, and think they might be dangerous, tolerance means letting them make that choice for themselves.

            I agree. But the problem is that he wasn’t making the choice for himself! He was making the choice for everyone he came into contact with, there and subsequently.

  3. This persistent attempt to rehabilitate Judge Walker’s amateurish paean to the Lord Christ and Christians, coupled with ostentatious silence regarding (1) the Trump campaign’s nastygram threats to licensed broadcasters seeking to censor campaign advertisements and (2) young Falwell’s apparent attempt to use criminal process to censor unflattering news reports . . . the works of a legitimate champion of free speech, or just more low-grade partisan polemics with legal veneer?

    1. At some point, if you object so much to this blog’s content, you might want to just stop reading.

      1. It’s a marketplace of ideas, some aisles more partisan that others.

        May the better ideas prevail.

        1. It’s marketplace all right. And the good Rev. Arthur L. Kirkland is the pile of horse manure.

          1. If I started posting racist rants against immigrants, agnostics, liberals, and uppity women, Michael W. Towns, you’d embrace me promptly.

            But if I continue to promote reason, progress, science, and modernity, I sense I will never win you over.

            1. Arthur, on the merits, I am far more likely to agree with you on any given issue than I am with the conservative commentators here, but could you please (pretty please, with sugar on top) tone down the rhetoric and name calling just a wee bit? Thank you.

              1. It’s his schtick and he’s been honing it for years.

                Personally, I think he’s the alter ego of one of the blog authors. One of the dumber ones.

            2. First, you would have to begin to promote reason, progress, science or modernity. Instead, you consistently post the most intolerant, hostile and bigoted content in these comment threads.

              And given some of the hostility posted here by folks like lc1789, managing to be the most bigoted is saying a lot.

            3. “If I started posting racist rants against immigrants, agnostics, liberals, and uppity women, Michael W. Towns, you’d embrace me promptly. But if I continue to promote reason, progress, science, and modernity, I sense I will never win you over.”

              Hahahahahahah! What a loon this joker is.

            4. Rev:

              Nothing wrong with dissenting. Nothing even really wrong with being a troll, if that’s how you want to be.

              But there’s a big difference between, say, coming into the comments threads and stating why the blog’s front pagers are wrong, and coming into the comments threads and constantly engaging in invective about clingers and all the rest.

              How about being substantive? If the only thing this blog inspires in you is this sort of garbage, yeah, you should probably stop reading.

    2. OK, it’s a cultural war AND WE’VE STARTED SHOOTING BACK….

      1. Dr. Ed, rather than have a shooting war, I would actually be fine with a stalemate in which the government stays out of the culture wars altogether. Gays can get married, but nobody is required to bake a cake for it. Abortion is legal, but people with religious or other objections don’t have to participate. (And no, I don’t agree that simply because the government doesn’t ban something, that that means the government endorses it.)

        The problem is, there aren’t that many on either side of the cultural divide who agree with that. Everybody wants the government putting its oversized thumb on the side of the scale that benefits them.

        1. 20-30 years ago, I had that belief — back then it was leave the gays alone, all they want is to not be beaten up. Damn right I supported that. But the line keeps moving….

          1. 20-30 years ago, I had that belief — back then it was leave the gays alone, all they want is to not be beaten up. Damn right I supported that.

            Uh-huh. And everyone in France was in the underground in WWII.

            And conservatives were ardently pro-civil rights.

            And so on.

        2. Gays can get married, but nobody is required to bake a cake for it. Abortion is legal, but people with religious or other objections don’t have to participate.

          In general I agree, but unfortunately one of those things is not like the others. In fact two of those things are not like the others. And…..there are only three things in the list 🙂

          (a) Gays can get married

          Marriage is a state recognised by law. Your marriage can have compulsory legal implications for me as well as for you and your spouse. The government can’t stay out of “gay marriage” unless it stays out of “marriage” altogether. Now that might be a good idea, but while the government has a position on marriage, it must necessarily have a position on gay marriage, child marriage, inter-racial marriage, bigamy, marrying your relatives, marrying your dog, and all that stuff.

          (b) but nobody is required to bake a cake for it

          This is turf where the government has not until quite recently found the need to interpose its opinions between willing buyer and willing seller. And it’s not a transaction which infringes the liberty of any third parties. Consequently it is natural live and let live territory.

          (c) abortion is legal, but people with religious or other objections don’t have to participate

          As I understand it, the vast majority of people who object to abortion do so precisely because they object to non volunteers being obliged to participate in it.

          So (b) is within the natural territory of voluntary association in a free society. (a) could be the same, but hasn’t been for a very long time. To move (a) into voluntary association territory, the government has to get out of marriage altogether.

          And (c) is not really an argument about free association (ie between pregnant woman and doctor.) It’s an argument about the status of the abortee. It’s analogous – in structure if not content – to slavery. First you have to agree on the status of the slave. Once that’s agreed on all sides, the question of whether it’s OK to own a slave as property, and trade in slaves, kinda fllows automatically. Jumping straight to “that’s my property, and I can do what I like with it” begs the initial question. Is it your property ?

          In practice, I suspect we would come down in rather similar final positions on how to deal with these three questions. But they’re different questions, not simply versions of the same question.

          1. Yes, marriage is a state recognized by law. I grew up in a church that did not recognize divorce — divorce was an automatic excommunication for both parties — and therefore considered second marriages to be bigamous, and I can assure you the most virulent opponent of gay marriage does not hate gay marriage any more than that church hated second marriages. They would have banned them had they had the political muscle to do so.

            So, what does the state do? In both instances, it tells the opponents of such marriages that it is not the business of the state to sort out the theological implications of what God considers to be a proper marriage, and the state’s sole role is to process the paperwork for consenting adults who wish to be married. So that is what I mean by the state staying out of it. (And yes, I would apply the same principle to polygamous marriage as well, though not to child marriages or bestial marriages since neither the child not the dog has the legal capacity to enter into a contract.) In this context, so far as the state is concerned, marriage is a contract, period, full stop.

            With respect to abortion, there is no consensus that the fetus is a person. There is a minority of the population that insists that of course it’s a person, but they have not yet succeeded in establishing a consensus to that effect. So, the state should not put its thumb on the scale by weighing in on the question. As with second marriages, if you believe that it’s murder, you’re entitled to your opinion. You’re entitled to shun someone who has had an abortion, as well as a doctor who performs abortions. And you should not be obligated to perform one yourself (unless you’ve voluntarily taken a job where that is part of the job description, but that’s between you and your employer, and the state has no role in that decision either). But you’re not entitled to enlist the state to grease the skids favorably to your side in this particular cultural question.

            1. You’re entitled to shun someone who has had an abortion, as well as a doctor who performs abortions.

              Or at least think there is something rather ghastly about women celebrating having had one. Or three, four, five…

            2. With respect to abortion, there is no consensus that the fetus is a person.

              True. But my point was not to weigh in on the question of whether it is or not, but to point out that whether it is or not is the essential point dividing pro-choicers and pro-lifers. The argument is not about whether “live and let live” is a good rule, but how it applies to the facts of abortion. Different answers to the person question lead you in precisely opposite directions on the “live and let live” test. Hence abortion doesn’t belong in a list of questions to be decided by the “live and let live” principle.

              There is a minority of the population that insists that of course it’s a person, but they have not yet succeeded in establishing a consensus to that effect. So, the state should not put its thumb on the scale by weighing in on the question. …….you’re not entitled to enlist the state to grease the skids favorably to your side in this particular cultural question.

              The word that is exercising me here is “so”. I appreciate of course that in a democracy-ish sort of polity, a law is relatively unlikely to be passed without the consent of the majority. But “so” ? That the majority favors some sort of restriction on “live and let live” is not traditionally regarded as an adequate justification for law, at least not be liberals (in the traditional sense.)

              Thus, for example, should a majority come to favor slavery – but not a big enough majority to impose a constitutional amendment to repeal the 13th Amendment – I don’t think those of us who do not favor slavery would feel at all embarrassed at thwarting the majority from reimposing slavery, by relying on the ant-majoritian protection of the 13th Amendment. Certainly I wouldn’t.

              So I disagree that the mere fact that the majority’s opinion is on one side of a question determines whether a restricton of liberty is justifiable. For those who think abortees are people, arguing for a legal ban on abortion is perfectly in accord with ‘live and let live” – it is perfectly liberal.

              1. If a majority came to favor slavery, it would be a very different society than the one in which we now live, and so much of what I’ve said would not apply. Also, if either abortion or gay marriage made a civil war plausible, as happened with slavery, then much of what I’ve said would also not apply. My comments were directed to the circumstances under which we live now, today, April 14, 2020; not the America of the 1850s or some dystopian future America.

                There are times and circumstances under which the government is forced to put its thumb on the scale of the culture wars. Abortion and gay marriage in 2020 are not one of them.

                I would agree with you that if a majority supported slavery, the 13th Amendment should be robustly enforced, even against majority sentiment. But if it’s an issue the majority feels strongly about, then I would worry about the continued viability of a polity in which the majority cannot get what it wants (although, of course, in a country as large and diverse as ours that would be one moving part among thousands of others, so ultimately it might end up not mattering if the majority were otherwise content). If we were to have another civil war, I think the electoral college and the two senator per state rule — each of which institutionalizes and renders permanent the majority’s inability to get what it wants — are far more likely candidates than either abortion or gay marriage to be the immediate cause.

                1. I entirely agree with you on the point that it is wise, and another way to be liberal, to recognise political reality. If you oppose slavery but live in a polity where the great majority favor it, you may do more practical good by arguing for humanitarian palliatives to start with rather than have your cause damned as “extremist.”

                  And slavery is a good illustration of political realism. The North accepted it pro tem to achieve the fedral union, by conceding local autonomy on the slavery question (and others.) The compromise broke down when the North insisted on imposing its national majority will on the South. The result was Civil War. Not saying that that was the wrong answer, merely that there was an irreconcilable difference between the national majority and the Southern states. Which had been patched over for eighty years or so by a federal approach.

                  And that is not unique to slavery. Gay marriage and abortion have been nationalised by the Supreme Court. In each case, some way ahead of the tilt in national majority opinion, and certainly ahead of majority opinion in plenty of states.

                  All of which is a long way of saying that federalism is quite a good way of letting some steam out of the pot.

                  1. “The compromise broke down when the North insisted on imposing its national majority will on the South.” No, the compromise broke when the south insisted on imposing it’s will on the territories. They walked out of the 1860 Democratic national convention over one plank in the platform – allowing territories and new states to vote on whether the allow slavery. Because they would not allow the inhabitants of the territories to choose to be free, they split the Democratic Party, and because they split the party, Douglas lost to Lincoln.

                    Even then, Lincoln was no threat to slavery where it was legal. He merely would not allow it in new territories (none of which had the climate for cotton-growing anyhow). And _that_ was why the South seceded.

          2. Thirty years ago, it was “tolerance” and “don’t ask, don’t tell.”
            Then it was gay marriage.
            Then it was sex changes.
            Then I could have my drivers license say I was a woman if I wished.
            Now it is (I believe) 57 different genders* and M/F/X on licenses.

            When will it end? When will it be “this REALLY is all we are asking for.

            * I believe that Farcebook lists 57 genders — I can’t check because I long ago eliminated my account.

            1. Dr. Ed, and how exactly does any of that impact you? You may think it’s silly, but I don’t see that your quality of life suffers any because your neighbor can choose which gender to put on a driver’s license.

              1. I want to change the date of birth on mine, how does that affect you?

                And the Pronoun Nazis do affect me.

                1. The date of birth has to be accurate so that the clerk in the liquor store can confirm that the person trying to buy vodka may legally do so.

              2. Ask the owner of Masterpiece Cake shop, which is getting sued *again* (in state court this time) for not making a gender transition cake, how much it impacts him.

                1. And I’m fine, for reasons I’ve already given, with saying that he should not have to bake that cake. That said, here’s the argument on the other side:

                  If you accept the premise of gay civil rights laws (that anti-gay discrimination is enough of a problem to require a government solution), why should the institution most responsible for creating the problem in the first place — religion — get a free pass from the laws designed to fix the problem?

                2. You are once again conflating who the cake is for with what the cake is.

                  Under public accommodation laws, you get to decide what you make, not who you make it for.

                  1. Masterpiece isn’t denying all cakes to all transes.

                    They only do not wish to make a cake that celebrates some bizarre trans cultural event.

                    How do you not know that? He is not stopping any trans from coming in his shop and buying some premade cake and then using it for whatever transgender thing the transes want to use it for.

                3. Whoa, what backpeddling. At first, it’s “how’s that affect you” as if gay marriage and this transgender ideology is all theoretical. But, when a man’s livelihood is put on the line in a concrete example, you’re shifting gears and saying “well, that’s different.” No, it’s not different, and this man is being harassed to set an example for the rest of us. That’s two federal lawsuits and a state one, hundreds of thousands in legal fees and lost revenue.

                  I don’t know what your past position was Krychek, but I appreciate the understanding that there is a trade-off at least. Yes, there is no free pass. The First Amendment, not to mention freedom of conscious, both trump anti-gay discrimination laws. Especially when there are a ton of alternate accommodations. It sounds like you want to redefine what freedom of religion means, removing it completely from the public sphere.

                  Second, Sarc goes far out into left field to argue about public accommodation laws designed so blacks could enter society fully. Not the same. Never was.

                  “A religion that does not interfere with the secular order will soon discover that the secular order not refrain from will interfering with it.” – Archbishop Fulton Sheen

                  1. mad_kalak, did you miss the part where I said I was fine with him not baking the cake, but was merely offering the contrary argument? I agree with you that he should not have to bake the cake. If I were a member of the Colorado Legislature, I would vote to amend the civil rights statute so it didn’t include him. All that said, I offered the contrary argument just so there would be a complete picture.

                    I do not agree with you that it’s a slam dunk that the First Amendment and freedom of conscience necessarily trump gay anti-discrimination laws. The Fourteenth Amendment protects gays just as much as the First Amendment protects churches, and gay anti-discrimination laws reflect that. So we have rights in conflict. It may be that ultimately I would agree with your bottom line that religious belief comes out on top, or maybe I wouldn’t; I actually think it’s a close call. But it’s far from the slam dunk you think it is.

          3. Your marriage can have compulsory legal implications for me as well as for you and your spouse.

            And these are?

            1. And these are ?

              ….dependent on the laws where you live. But for example :

              (i) employers – the government may require certain employee benefits to be extended to spouses, eg health insurance, pensions

              (ii) landlords – the law may give some rights to spouses of tenants as against the landlord

              (iii) cake shop owners and florists 🙂

  4. This kind of comment always amuses me, areligious that I am:

    Why? We want to save your life and save the lives of other people in this community. It distresses us greatly to have to do this during Holy Week.

    Aren’t churches more concerned with your immortal soul than your living body? Even the non-Abrahamic ones, right, like Buddhism wanting you to reincarnate successfully?

    1. At a Methodist church, I heard it aptly quoted “I am not afraid of death, I just don’t want to be there when it happens.”

      1. The quote was credited to Woody Allen

        1. Allen apparently has a thing with death. Another, from memory: “Some people want to achieve immortality through their work. I want to achieve immortality through not dying.”

      2. Yea, though I walk through the valley of the shadow of death, I will fear no evil: for thou art with me; thy rod and thy staff they comfort me.

  5. I think it’s pretty clear what happened.

    The mayor had every intention of banning the service, and had no intention of responding to the the lawyers from the Church before the deadline. The mayor had hoped to simply run out the clock through a policy of non-response.

    Faced with such a reprimand from the court however, the mayor quickly backtracked saying “well, I didn’t REALLY ban it, despite saying that I did”.

    1. I think that pretty much sums it up. He didn’t word it as a suggestion, but as an order.

      1. I don’t think he intended to ban anything, he knew that would put him on shaky ground. I think he wanted to dissuade churches and churchgoers from having services in the strongest possible way, without actually instituting a ban. And he didn’t choose his words carefully enough. Just a guess, though.

        1. You’re the government, you order people not to do something, that’s a ban, even if you privately have no intention of enforcing the ban if challenged.

        2. If you are arrested, do you really care why?

    2. Yeah, I think you’re right about this.

      And it is clear the Mayor was in fact banning church services.

  6. We made the drive to Louisville to go to the service.

    I was very impressed with the way that Pastor Salvo and the On Fire Church ran the event. Everything went very smoothly. They had many people out in masks, directing cars around the parking lot. (They directed them so that there was one-way flow.) We all parked six feet apart (the volunteers directed us to ‘spaces’ on the grass that were separated by at least six feet). Our windows could only be rolled down a few inches. The pastor spoke from a trailer that had been turned into a stage, with loudspeakers. We were told on no uncertain terms to stay in our cars. Pastor Salvo was quite clear at the beginning of the service that we were to all comply with CDC guidelines on social distancing; we were to stay in our cars; and we were to follow instructions given by the volunteers.

    It was a really lovely event.

    Speaking of little kids needing the bathroom, I changed my son’s diaper on my lap, in the front seat, without getting out of the car. (We also gave him a bottle.) At least at this age, it wasn’t hard… we just came prepared to take care of his needs without getting out of the car.

    So no legal analysis, except perhaps for the very minor point that it’s entirely possible to hold these gatherings while following CDC guidelines. I’m grateful that there are people committed to doing so.

    1. Just curious….how long did the service actually run?

      1. A little over an hour, with another 10-15 minutes to get out of the parking lot. It wasn’t big or massively crowded, but they were very particular about people exiting in an orderly fashion.

      2. As we do not live in Louisville, the drive added substantial time to the trip, hence the bottles and diapers.

  7. Can we agree that Mayor Greg Fischer was all over the place? Maybe he doesn’t even understand the difference between asking and telling. I’m reminded of the one saving grace of Elizabeth Warren’s tax plans. She always said she was going to ask the rich to pay more. As long as she was only asking, what’s the harm?

    1. I don’t think either the mayor or the judge covered themselves with glory here.

      One of the two can be removed by the voters.

  8. It should be an extremely high burden to curtain a right explicitly called out in the constitution. The town didn’t meet it.

  9. [1.] Did the Mayor of Louisville purport to forbid drive-in church services, or was he just asking for people to voluntarily refrain from them? Some people asked that question, and here’s what I found.

    Given other places have made threats of legal action for violating the governor’s “recommendations”, I’m not so sure there should be a distinction with the use of weasel words.

  10. If you’re a member of the public, and you hear these confusing statements, obviously you have no choice but to interpret them in the strictest reasonable way. You can’t say “Oh, he was probably just making a strong recommendation” and risk going to jail.

    That’s why these vague threats are especially nasty. If the government decides on Sunday they want to arrest you, they can do that. If they decide “well, we’ll just say we didn’t really mean it”, they can do that. They hold all the cards. I’m glad the judge took swift action.

  11. It seems pretty clear the Mayor was at least trying to intimidate the church into complying with his “suggestion” and even apparently went so far as to misrepresent the Governors order as prohibiting drive in services.

    Perhaps the Mayor misunderstood the intent of the drive in service or perhaps this is some other conflict between the Mayor and the church in question.

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