The Volokh Conspiracy
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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,
Folks, let's get the facts straight: There was never a Louisville Metro Government ban on drive-in church services, as we would have explained in court if we had been allowed. 1/3
— Mayor Greg Fischer (@louisvillemayor) April 12, 2020
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.]