Kentucky Believers Assemble to Worship, in Drive-in Church Meeting: Federal Judge Decrees TRO, Protecting Drive-in Easter Service
James J. S. Johnson, J.D., M.B.Th., Th.D.
He is the LORD our God: his judgments are in all the earth. (Psalm 105:7)
The mayor (and city) of Louisville, Kentucky, banned drive-in Easter services, but a local church pushed back—filing a defensive lawsuit in federal court, on Good Friday.(1),(2) The following day (Saturday, April 11th), the federal judge speedily sided with the church, issuing a TRO (temporary restraining order) against the mayor and city of Louisville.(1) The trial judge succinctly summarized how the plaintiff church, On Fire Christian Center, would be permitted to go forward with their drive-in Easter service.
The Court GRANTS the motion for a temporary restraining order filed by On Fire Christian Center, Inc. (“On Fire”) against Mayor Greg Fischer and the City of Louisville (together, “Louisville”). The Court ENTERS this Temporary Restraining Order on Saturday, April 11, 2020 at 2:00 P.M. [the afternoon before Easter morning]. The Court ENJOINS Louisville from enforcing; attempting to enforce; threatening to enforce; or otherwise requiring compliance with any prohibition on drive-in church services at On Fire. [All caps in original Temporary Restraining Order, quoting page 1 of 20](1)
In short, the church conducted its Easter worship service, as a drive-in event, successfully, Easter morning.(3)
Are drive-in church services a proper “free exercise of religion” in America, during times when ordinary travel and assemblies are limited by government-declared disaster decrees?
How should we then live, when “social distancing” mandates ban normal activities—including constitutionally protected activities, like attending church? What if a government official uses a crisis to restrict some activities (such as religious freedoms), yet not others?(4),(5)
What if liquor store drive-throughs (or parking lots) are authorized to operate as “essential businesses”, but drive-in churches are banned?(1)
The TRO-issuing federal judge, Hon. Justin R. Walker, had some big-picture insights, delivered in non-nonsense wording, to explain why he issued the TRO, blocking the mayor’s ban against drive-in worship services.
On Holy Thursday, an American mayor criminalized the communal celebration of Easter. … But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship – and even though it’s Easter. The Mayor’s decision is stunning. And it is, “beyond all reason,” unconstitutional.
According to St. Paul, the first pilgrim was Abel. With Enoch, Noah, Abraham, Isaac, Jacob, and Sara, they “died in faith, not having received the promises” of God’s promised kingdom [quoting Hebrews 11:13]. But they saw “them afar off, and were persuaded of them, and embraced them, and confessed that they were strangers and pilgrims on the earth.” The Plymouth Colony’s second Governor, William Bradford, alluded to St. Paul’s pilgrims when he recalled, years later, his fellow colonists’ departure from England. …
But they sailed west because west was where they would find what they wanted most, what they needed most: the liberty to worship God according to their conscience. “They knew they were pilgrims,” wrote Bradford, “and looked not much on those things” left behind, “but lifted their eyes to heaven, their dearest country and quieted their spirits.” The Pilgrims were heirs to a long line of persecuted Christians, including some punished with prison or worse for the crime of celebrating Easter – and an even longer line [citing Exodus 1:11-18].of persecuted peoples of more ancient faiths. [Quoting Memorandum Opinion, pages 3-4](1)
After that relevant history “refresher course”, Judge Walker applied the law to the facts before him—the mayor-banned drive-in Easter service.
Four days ago [April 7th], defendant Mayor of Louisville Greg Fischer said it was “with a heavy heart” that he was banning religious services, even if congregants remain in their cars during the service… [asserting], “It’s not really practical or safe to accommodate drive-up services taking place in our community.” Drive-through restaurants and liquor stores are still open….
And the Mayor’s spokesperson backed up the Mayor’s threat to use the police with a request for “anyone who sees violations from our social distancing guidance to reach out to 311” to inform on their family, friends, and neighbors….
On Sunday, tomorrow, Plaintiff [church] On Fire Christian Center wishes to hold an Easter service, as Christians have done for two thousand years. On Fire has planned a drive-in church service in accordance with the Center for Disease Control’s social distancing guidelines. Yesterday, near the close of business, On Fire [church] filed this suit, including a request for a Temporary Restraining Order … to stop defendants Mayor Greg Fischer and Metro Louisville from carrying out their plan to enforce their interpretation of the Governor’s social distancing order….
Here, 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…. [Quoting from Memorandum Opinion, pages 7-10, 12](1)
The pivotal problem with the mayor’s ban, the judge judged, was its overly broad interference with legitimate rights, impairing religious liberty beyond any rational justification.
But if beer is “essential,” so is Easter. Louisville’s actions are also overbroad because, at least in this early stage of the litigation, it appears likely that Louisville’s interest in preventing churchgoers from spreading COVID-19 would be achieved by allowing churchgoers to congregate in their cars as On Fire [church] proposes. On Fire has committed to practicing social distancing in accordance with CDC guidelines. “Cars will park six feet apart and all congregants will remain in their cars with windows no more than half open for the entirety of the service.” Its pastor and a videographer will be the only people outside cars, and they will be at a distance from the cars.
Louisville might suggest that On Fire members could participate in an online service and thus satisfy their longing for communal celebration. But some members may not have access to online resources.
And even if they all did, the [First Amendment’s] Free Exercise Clause protects their right to worship as their conscience commands them. It is not the role of a court to tell religious believers what is and isn’t important to their religion, so long as their belief in the religious importance is sincere….
[F]or some believers Easter means gathering together, if not hand in hand or shoulder to shoulder, then at least car fender to car fender. Religion is not “some purely personal avocation [done] in secret, … in the privacy of one’s room. For most believers, it is not that, and has never been.” Instead, just as many religions reinforce their faith and their bonds with the faithful through religious assemblies, many Christians take comfort and draw strength from Christ’s promise that “where two or three are gathered together in My name, there am I in the midst of them.”[Quoting Matthew 18:20] Indeed, as On Fire [church] points out, “the Greek word translated ‘church’ in our English versions of the Christian scriptures is the word ‘ekklesia,’ which literally means ‘assembly.’” [Quoting from Memorandum Order, pages 13-14](1)
In closing, the judge emphasized that religious freedom is not a matter or popular opinion, consensus science, or majority vote—because the U.S. Constitution’s First Amendment protects religious liberty at both the group and individual levels.
The Christians of On Fire [church], however, owe no one an explanation for why they will gather together this Easter Sunday to celebrate what they believe to be a miracle…. [Perhaps] to the nonbeliever, the Passion of Jesus – the betrayals, the torture, the state-sponsored murder of God’s only Son, and the empty tomb on the third day – makes no sense at all. …
But for the men and women of On Fire, Christ’s sacrifice isn’t about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord[,] is the reason they believe He was and is there for us … “it’s a matter of love”. [Quoting Memorandum Opinion, pages 19-20](1)
Some say the federal judge’s ruling shows righteous indignation. Some even say that God Himself was most likely angry as well (in light of God’s command in Hebrews 10:25) — and that a God-ordained authority implemented God’s judgment (Romans 13:1-7). Yes, God’s providences can be so obvious, sometimes, that we recognize God applying justice, giving judgments in the earth.(5)
He is the appears to be unusually protective of religious liberty, and providentially practical in providing justice, we should be extra thankful to our God, Whose judgments are in all the earth.(4),(5)
- On Fire Christian Center, Inc. v. Fisher, Mayor, and City of Louisville, Kentucky, Case 3:20-cv-00264-JRW (W.D. Ky. 2020, per U.S. District Judge Justin R. Walker) (temporary restraining order and memorandum opinion, filed April 11, 2020), posted at https://firstliberty.org/wp-content/uploads/2020/04/OFCC-v-Fischer-Order-Granting-TRO.pdf . Accessed April 11, 2020.
- Carrega, C. “Kentucky Governor Asks Churches to Close on Easter; Judge Overrules Louisville Mayor’s Order to Stop Drive-in Service”, ABC News (April 11, 2020). Posted at https://abcnews.go.com/US/kentucky-governor-warns-worshipers-congregate-easter-weekend/story?id=70101091 – accessed April 11, 2020.
- Cadigan, M. “Louisville Church Gets Restraining Order, Hosts Drive-in Service”, Spectrum News 1 (April 12, 2020). Posted at https://spectrumnews1.com/ky/lexington/news/2020/04/13/church-performs-drive-in-easter-service — accessed April 12, 2020.
- See Hebrews 10:25. This Scripture, as a biblical mandate, justifies constitutional (First Amendment-protected) religious liberty rights, so any governmental interference with religious assembly rights can only be legitimized to the extent that they directly accomplish governmental needs while minimally hindering religious liberty rights. See, accord, Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972), explained in John Eidsmoe, Institute on the Constitution: A Study on Christianity and the Law of the Land (Marlborough, NH: Plymouth Rock Foundation, 1995), page 78.
- A full treatment of the First Amendment’s historical purpose is provided in Rector, etc., of Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511 (1892), by Justice David Josiah Brewer, a Smyrna native. See also Revelation 2:8-11 (Smyrna’s persecution); Romans 13:1-7 (God’s ordination of jurisdictional limited governmental authorities). Sometimes, acting as if reluctant to get “political”, pseudo-patriots oppose (and try to muzzle) those who try to defend constitutional religious freedoms: deceivers usually resist and negate truth. Illustrating recent confirmation of religious freedom, see James J. S. Johnson, “Balancing Church and State, Part 3: Luther’s Stand Revisited”, Acts & Facts, 45(11):20 (November 2016), posted at https://www.icr.org/article/balancing-church-state-part-3-luthers .