The Volokh Conspiracy

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Louisville Drive-In Church Lawsuit Settled


From today's agreed order in On Fire Christian Center, Inc. v. Fischer (W.D. Ky.):

1. Plaintiff agrees to take reasonable steps to ensure that, during drive-in church services, attendees who enter upon Plaintiff's premises for "drive-in" church services abide by the social distancing guidelines as promulgated by the Centers for Disease Control and Prevention ("CDC"). It is understood and agreed by the parties that compliance with the CDC social distancing guidelines shall be deemed satisfied if:

a. Attendees maintain six (6) feet of physical distance between cars parked on Plaintiff's premises during the service;

b. Attendees remain for the duration of the service in the automobile in which they traveled to the service;

c. Attendees keep the windows on their cars at least half of the way closed for the duration of the service;

d. No more than one service leader shall be present on the stage at any point during the service, except that, during the congregational singing, three additional leaders may be present in front of the stage area so long as they remain at least 6 feet apart from one another and from any other attendee at all times.

e. Plaintiff's staff and/or volunteers may be closer than 6 feet to each other as required for the set-up and take-down process and other logistical needs for drive-in church services. Plaintiff's security personnel may be closer than 6 feet to each other to discuss and/or address any security issues, as needed….

3. Plaintiff and its staff agree to implement reasonable processes and procedures to ensure that, during its services and its rituals, there is no direct person-to-person contact throughout the duration of all worship services.

4. Defendant Metro Government and/or the Louisville Metro Department of Public Health and Wellness ("LMDPHW") may take such actions with regard to Plaintiff and the attendees at its drive-in services to ensure compliance with the social distancing guidelines, as defined above, as they take with regard to other individuals and establishments. Nothing in this paragraph shall be construed to permit Defendant Metro Government and/or the LMDPHW to take any action with regard to Plaintiff or the attendees at its drive-in services that is discriminatory toward Plaintiff or the attendees at its drive-in services.

5. If a complaint is received by Defendant Metro Government and/or the LMDPHW against an attendee at or participant in Plaintiff's drive-in services alleging a violation of any of the above-described social distancing guidelines, the parties agree that such complaint will be addressed as follows:

(a) Minor Offense: If, after investigation by the LMDPHW, it is determined that an attendee at or participant in Plaintiff's drive-in services has not abided by the terms of this Order, LMDPHW shall conduct an educational meeting with that person instructing him or her on proper methods of complying with the social distancing guidelines as set forth hereinabove;

(b) Major or Subsequent Offense: If, after investigation by LMDPHW, a determination is made that an attendee at or participant in Plaintiff's drive-in services has committed a major offense that is a significant departure from the social distancing guidelines, then LMDPHW may issue an Order requiring immediate compliance by that person with the social distancing requirements set forth hereinabove. If an attendee at or participant in Plaintiff's drive-in services thereafter does not abide by the above-described social distancing guidelines, LMDPHW may impose a fine upon that person in an amount and manner consistent with the laws of the State of Kentucky and/or the City of Louisville….

Last Friday, the Governor of Kentucky filed an amicus brief stating that his shutdown order "does not prohibit drive-in religious services," though

  • "Vehicles must contain only people from the same household;
  • All individuals must remain in their vehicles;
  • The vehicles must be at least six feet away from each other;
  • Church staff must be at least six feet away from each other and at least six feet
    away from the vehicles; and
  • Proper hygiene measures recommended by the Centers for Disease Control and Prevention must be implemented."

The brief made clear that his order also didn't block local officials from imposing tighter restrictions. But today's agreement suggests that the Mayor concluded that it wasn't worthwhile for him to try that.

NEXT: Fordham Urban Law Journal Symposium on Knick v. Township of Scott

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  1. If everyone stays in their cars, why do the cars need to be six feet away from each other?

    1. Years ago (and I, unfortunately, still remember it vividly) I was at a stoplight, with my window down. The woman in the passenger seat of the in the lane next to me had to sneeze, and she politely turned her head away from the driver. Which put me in her crosshairs, and she hit the bullseye. (Am I mixing metaphors?)

      If the regulation said, windows must be completely up, then I'd agree with you. But since windows can be half-down, it would be pretty each to sneeze or cough into the car next to you, if it were only a few feet away. (Teenagers also sometimes do the dick move of spitting into nearby cars, if they see a friend...or someone the enjoy picking on.)

      1. You didn't know that cars can transmit the rona?

        1. My carona!

  2. I don't see this as a victory for the church.
    Where is the language that they won't screw with the church again?

    1. The modern church does not achieve victories in America. It withers, and fails, and is exposed, and is increasingly held to account. Mostly, it withers.

      Choose reason. Every time.

      1. Once again, RAK manages to prove that he is the most intolerant bigot here.
        Which is saying a lot given some of the other trolls who post here regularly.

        1. Advocating reason over superstition is bigotry?

          Your right-wing fever dreams are hitting 103 today.

      2. Religion is a cause of wars, as is modern politics, identical to religions except they swap "for God" with "for The People".

        You've killed the former by swapping in the latter, with no change to why such things were bad in the first place.

        Religion was bad because it functioned as a population gathering mechanism for the leaders to seize power, then muck about.

        You think you've fixed things. You've fixed nothing.

      3. Lord Jeffery Amherst once said something similar about the Native American Tribes.

        Last I heard, they were running some quite lucrative casinos...

        Just sayin....

      4. I’ll chose the First Amendment, thank you.

  3. So the freedom to worship is completely subject to government control after all.
    As an immediate issue, how can Baptism or Communion be observed under these government edicts?
    "3. Plaintiff and its staff agree to implement reasonable processes and procedures to ensure that, during its services and its rituals, there is no direct person-to-person contact throughout the duration of all worship services."

    The church should never have agreed to this.

    1. The church surrendered to Satan's satraps.

    2. I agree -- and now the church is responsible for deliberate troublemakers as well. THEY (and not the police) are now responsible for criminal control. STUPID!!!!!

    3. "The church should never have agreed to this."

      Agreed but maybe the church doesn't do baptism or communion?

  4. Some people are providing medical care to the infected, sometimes returning from retirement to do so. Some of them sleep in garages or basements to avoid exposing family members to risk. Many work for the modest compensation of a nurse or orderly. Too many have been required to work without sensible protective equipment.

    Other Americans deliver food or medicine, operate trains or buses, serve as paramedics or police officers, despite risk.

    These people are selfless, courageous, heroic. They are among the best of us.

    Other people attend belligerently ignorant political gatherings, honking horns, displaying rifles, and waving flags (United States, Confederate, or Gadsden). They attend reckless, childish religious gatherings or race to court seeking to arrange additional special privilege for superstition during pandemic conditions. They rail reflexively against rules established by government officials and public health professionals during a pandemic. They applaud a vainglorious, ineffective president who flip-flops, misleads, disdains science, and blunders during a pandemic.

    These malcontents are our society's losers, and deservedly so. By selfishly and pointlessly increasing the risks sustained by their betters, they demonstrate why America has been improving against their wishes and efforts for a couple of generations. They illustrate why progress creates an America that is more diverse, less rural, less religious, less bigoted.

    Carry on, clingers. So far as your betters permit.

    1. The Human Hemorrhoid dropped a load. Thanks.

    2. While everyone in the former Soviet Union was supposedly equal, the paved highways had three lanes -- the outer two were for ordinary people and the inner third lane was for those who were somehow "more equal" than everyone else.

      The medical personnel whom Kirkland wishes to worship are -- unlike the truck drivers bringing him his food -- highly paid and even moreso now with the overtime. They chose to go into a profession dealing with sick people, knowing the risks, much as truck drivers also did.

      And much like in trucking, there are people in nursing who are there for all the wrong reasons. Much like there are truckers who enjoy using the size of their trucks to bully & intimidate other motorists, there are nurses who enjoy using their power to bully and intimidate others -- and while the trucking profession has largely managed to police itself, the medical profession increasingly fails to do so.

      Before this national incarceration, nurses were respected -- now, not so much, and their status with the SEIU isn't helping. Yes, they have become Democrat Activists and deserve no more inherent respect than Donald Trump does.

      And far too many of them are the "mean girls" of High School, now in positions of state-sanctioned authority.

      1. By selfishly and pointlessly increasing the risks sustained by their betters

        And we get a glimpse behind the curtain here.

        Prior to the French Revolution, young (drunken) noblemen drove their carriages quite recklessly through the streets of Paris, with the inevitable carnage occurring as a result. However when they ran over a peasant in a crosswalk, it wasn't like today -- instead, the dead peasant's family was liable to the nobleman for the damage to his carriage because the peasant had "harmed" one of his "betters."

        That's one of the things that led to the French Revolution (which didn't turn out so well), and while it wouldn't actually occur for another two years, the men (and woman) who were writing our Constitution in 1787 were very much aware of where things were going in France, and they sought to prevent the same sort of thing from happening here. (Shay's Rebellion had scared the daylights out of them.)

        Kirkland really ought to be called Louis XV, famous for "Après nous, le déluge" (after me, the deluge) as there is going to be a backlash to this crap. Hopefully, it will be limited to massive budget cuts and restrictions on authority, but there WILL BE a backlash. We are a free people, and we will rebel...

        1. And not to confuse him with the facts, but the Worker's Comp statistics are what they are -- and medical professionals aren't anywhere near the top of the list.

          No, loggers are -- and where does he think his toilet paper comes from???

      2. "Before this national incarceration, nurses were respected — now, not so much"

        You appear to spend too much time among disaffected clingers and with stale-thinking, right-wing law professors.

        You also are the reason the culture war has sifted in the direction it has. So thank you for enabling American progress -- against the wishes and efforts of conservatives and Republicans.

        1. Britain's National Health Service now prohibits nurses from wearing uniforms in public -- too many of them have been physically assaulted.

          That's called a "fact."

          1. You must be referring to a Breitbart report, which does not identify the ostensible email's sender and has not been corroborated by a reliable source.

            The alleged problem, even by Breitbart standards, seems to be that people fear being infected by nurses' uniforms, not that people hold the nurses in low regard. (What kind of person holds nurses in low regard during a pandemic, other than worthless people?) Also, citizens reportedly have been stealing nurses' badges, hoping to score free food from the many charitable restaurants honoring health care worker with no-charge meals -- which might have something to do with a 'don't wear nursing uniforms outside the hospital' message.

            Keep swinging, clinger. You're bound to make contact one of these days. Maybe close your eyes to increase your chances?

  5. "Major or Subsequent Offense" provision is bad. This gives unlimited discretion to the mayor.

    Did the city council pass a "social distancing" ordinance? If not, then the "standards" are just lawless executive action.

  6. I often wonder: how do native Kentuckians pronounce the name of their capital city? Is it "Lou-ie-ville", or "Lou-uh-ville", or "Lou-ville", or some other way?

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