A federal judge has ruled all Kentucky churches can hold in-person services starting Sunday, May 10, so long as they practice social distancing and hygiene guidelines set by the Centers for Disease Control and Prevention.
U.S. District Judge Gregory F. Van Tatenhove made the ruling Friday evening. It’s a result of the lawsuit Tabernacle Baptist Church in Nicholasville, Ky., filed against Gov. Andy Beshear, D-Kentucky.
“Governor Beshear’s orders unlawfully target religious worship and violate the First Amendment,” said Roger Byron, Senior Counsel for First Liberty Institute.
Judge Van Tatenhove built his ruling on the enduring protections and powers the Constitution grants to Americans within the First Amendment. You can read the full order below.
The judge said meeting in-person was ‘essential’ for the church, and while the governor can put a stop to that, with reason, currently, that reason does not exist despite “an honest motive.”
The church argued that it “has a sincerely-held religious belief that online services and drive-in services do not meet the Lord’s requirement that the church meet together in person for corporate worship.” The governor’s order, according to the church, violates its First Amendment rights to exercise freedom of religion and freedom of assembly.
Judge Van Tatenhove focused on the freedom of religion in his Friday ruling.
Gov. Beshear’s legal time has argued in this lawsuit and similar ones that the ban on mass gatherings is constitutional because it is applied to all mass gatherings, not religious ones specifically.
In his ruling, Judge Van Tatenhove wrote, “The orders at issue do not simply restrict religious expression; they restrict religious expression in an attempt to protect the public health during a global pandemic.”
Precedent does give the governor some leeway in enacting certain orders during public health emergencies, said the judge, however, “constitutional rights still exist.” But the judge decided the current orders are “beyond what is reasonably required.”
The judge also delved into the difference between religious and secular settings and how the governor’s applied to them.
“Evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking,” wrote Judge Van Tatenhove, “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.”
Tabernacle Baptist Church said it was committed to worshiping with social distancing guidelines in place.
Judge Van Tatenhove granted the church’s request for a temporary restraining order, which will apply to all churches in Kentucky.
“The church will gather together for worship on Sunday with grateful hearts and observe the CDC’s guidelines to keep everyone safe and well,” said Byron.
Attorney General Daniel Cameron, R-Kentucky, said the ruling protects Kentuckians’ religious liberties after two rulings in federal courts came down Friday.
“I encourage all houses of worship to prayerfully and carefully consider when it is the right time to resume in-person services consistent with health guidelines. Although these rulings protect the religious liberty of Kentuckians, we must continue to do our part to protect the health of our fellow citizens by reopening carefully,” said Cameron.
Houses of worship are in phase one of the governor’s Healthy at Work initiative. The governor said churches, mosques, synagogues, etc., can hold in-person services on May 20 with guidelines in place.
Judge Van Tatenhove Opinion… by WKYT on Scribd
For the second time in as many weeks, the U.S. Supreme Court is tackling a major religion case. This time the question is whether lay teachers at parochial schools are exempt from the nation’s fair employment laws.
But the court’s eventual decision could reach beyond teachers, affecting the lives of millions of other employees who work for religiously affiliated institutions.
For decades, lower courts have recognized an exception to the nation’s employment laws for ministers. The purpose is to protect leaders of the faith, and their religions, from interference by the government.
The exception extends to religiously affiliated institutions when they fire employees who serve in a religious capacity akin to that of a minister.
But how do we define who is a minister and who is not?
In 2012, the Supreme Court sought to answer that question, agreeing unanimously that a fourth-grade teacher who was ordained as a minister could not sue over her firing by a Lutheran school. Chief Justice John Roberts announced the opinion from the bench, noting that the teacher who brought the case was not a lay teacher. Rather, he said, she is religiously trained and a commissioned minister of the church.
“Requiring a church to accept or retain an unwanted minister or punishing a church for failing to do so intrudes upon more than a mere employment decision,” Roberts said. “Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”
The issue before the court
Monday’s case, however, does not involve trained and ordained ministers of the faith. It involves two fifth-grade teachers at Catholic schools in California. The first teacher, Agnes Morrissey-Berru, claimed her employment contract was not renewed after 16 years service because of illegal age discrimination.
The second suit was brought by Kristen Biel against St. James School in Torrance. She claimed that she was fired after she told her superior, Sister Mary Margaret Kreuper, that she had been diagnosed with breast cancer.
Her husband, Darryl Biel, remembers that day vividly. His wife, he said, drove into their driveway “in tears … bawling hysterically. She was so hurt that they could be doing this to her.”
Kristen Biel would return to teaching elsewhere while fighting her case in court, but in June 2019, she died. Her husband said that in her final days, the couple talked extensively about the case. “She was in the hospital for a couple of days before she had to go on a ventilator … I promised her I would see this through,” he says.
The schools denied that Morrissey-Berru and Biel were fired for discriminatory reasons. But they asserted that the courts should dismiss the cases because the teachers were essentially ministers, and thus were not protected under the federal employment laws. A federal appeals court ruled against the schools, which appealed to the U.S. Supreme Court.
Five of the nine justices hearing Monday’s case attended Catholic secondary schools, and several of them have sent their children to parochial schools as well.
Covered by the ministerial exception?
At Monday’s argument, Stanford law professor Jeff Fisher, who is representing the teachers, will tell the justices that by the terms of the teachers’ contracts and the school handbooks, these teachers were hired to teach academic subjects.
Though he acknowledges that the teachers taught religion from a workbook about three hours a week, Fisher says these teachers were “primarily lay employees” teaching “secular subjects.”
“Just as teaching science out of a fifth-grade textbook doesn’t make them scientists, teaching religion for 40 minutes a day out of a workbook doesn’t make them ministers,” he says. Ultimately, “they are not people we understand to be spiritual leaders of the church.”
Eric Rassbach of the Becket Fund for Religious Liberty, who is representing the schools before the court, disagrees.
“These teachers taught the Catholic faith to these kids more than the parish priest,” putting them squarely within the so-called ministerial exception, he says.
But, Fisher counters, that “this isn’t something you measure with a stopwatch.” It is “telling,” in these cases, he says, that the “teachers did not even have to be Catholic to have these jobs.”
Heart of the matter
At the heart of this dispute is the First Amendment ban on government establishment of religion and the separation of church and state.
“You don’t want the government deciding who teaches religion … we don’t do that in this country … that’s why we have an establishment clause,” says Rassbach. Ultimately, he argues, the schools consider the teachers to be performing an important religious function, and therefore, they can be fired for any reason because they are not subject to the nation’s fair employment laws.
But Fisher notes that the schools in these cases do not claim any religious reason for firing the teachers. The schools, “have never asserted that either of [the teachers] fell short in any religious duty or … adherence to the faith,” he says.
If these teachers are exempt, he adds, then millions of employees are automatically exempt from laws enacted by Congress to protect workers, simply because they perform some duty their employer considers religious. Indeed, he observes, they would be exempt not just from anti-discrimination laws, but also laws that protect individuals from retaliation when they report misbehavior to authorities, and laws imposing wage and hour regulations.
Rassbach will tell the Supreme Court that not everyone who works at a religious school or institution is exempt from these laws. “Far from it. It’s just that you have to look and see what kind of function are they doing.”
But Fisher counters that function can’t be the only criterion because many employers at religiously affiliated institutions sincerely believe that all of their employees perform important ministerial functions, from nurses who care for the sick, to summer camp counselors for troubled teenagers, and athletic coaches who mold the character of their charges and often lead them in prayer. Were those functions to be considered ministerial, Fisher says, the results would be dire.
“Millions of people across the country who never thought or understood themselves to be leaders of the faith” would now “magically have no employment protections,” he says.
There is another, and rather rich, twist to one of the cases before the court Monday.
It turns out that at the time Kristen Biel learned she had breast cancer, Kreuper, the school principal who fired her, was embezzling large amounts of money to go on gambling sprees in Las Vegas. One article quoted a church accountant as ball-parking the amount at $500,000.
“The Gambling Nuns” saga is unlikely to come up at the Supreme Court, but it certainly is on Darryl Biel’s mind. He had planned to be in Washington for Monday’s argument. “I wanted to face them. I wanted to see them. I wanted them to see me,” he says “and I just pray that the justices see the right way.”
Instead of sitting in the Supreme Court chamber, though, Biel, like the rest of us, will be at home listening.
And he’s on a mission to use the “authority” of the executive branch to stop it.
Why would a seemingly respectable, semiretired lion of the Washington establishment undermine the institutions he is sworn to uphold, incinerate his own reputation, and appear to willfully misrepresent the reports of special prosecutors and inspectors general, all to defend one of the most lawless and corrupt presidents in American history? And why has this particular attorney general appeared at this pivotal moment in our Republic?
A deeper understanding of William Barr is emerging, and it reveals something profound and disturbing about the evolution of conservatism in 21st-century America.
Some people have held that Mr. Barr is simply a partisan hack — willing to do whatever it takes to advance the interests of his own political party and its leadership. This view finds ample support in Mr. Barr’s own words. In a Nov. 15 speech at the Federalist Society’s National Lawyers Convention in Washington, he accused President Trump’s political opponents of “unprecedented abuse” and said they were “engaged in the systematic shredding of norms and the undermining of the rule of law.”
It is hardly the first time Mr. Barr stepped outside of long-established norms for the behavior of attorneys general. In his earlier stint as attorney general, during the George H.W. Bush presidency, Mr. Barr took on the role of helping to disappear the case against Reagan administration officials involved in the Iran-contra affair. The situation demonstrated that “powerful people with powerful allies can commit serious crimes in high office,” according to Lawrence Walsh, the independent prosecutor in that case. According to some critics, Mr. Barr delivered the partisan goods then, as he is delivering them now.
Another view is that Mr. Barr is principally a defender of a certain interpretation of the Constitution that attributes maximum power to the executive. This view, too, finds ample support in Mr. Barr’s own words. In the speech to the Federalist Society, he said, “Since the mid-’60s, there has been a steady grinding down of the executive branch’s authority that accelerated after Watergate.” In July, when President Trump claimed, in remarks to a conservative student group, “I have an Article II where I have the right to do whatever I want as president,” it is reasonable to suppose this is his CliffsNotes version of Mr. Barr’s ideology.
Both of these views are accurate enough. But at least since Mr. Barr’s infamous speech at the University of Notre Dame Law School, in which he blamed “secularists” for “moral chaos” and “immense suffering, wreckage and misery,” it has become clear that no understanding of William Barr can be complete without taking into account his views on the role of religion in society. For that, it is illuminating to review how Mr. Barr has directed his Justice Department on matters concerning the First Amendment clause forbidding the establishment of a state religion.
In Maryland, the department rushed to defend taxpayer funding for a religious school that says same-sex marriage is wrong. In Maine, it is defending parents suing over a state law that bans religious schools from obtaining taxpayer funding to promote their own sectarian doctrines. At his Department of Justice, Mr. Barr told law students at Notre Dame, “We keep an eye out for cases or events around the country where states are misapplying the establishment clause in a way that discriminates against people of faith.”
In these and other cases, Mr. Barr has embraced wholesale the “religious liberty” rhetoric of today’s Christian nationalist movement. When religious nationalists invoke “religious freedom,” it is typically code for religious privilege. The freedom they have in mind is the freedom of people of certain conservative and authoritarian varieties of religion to discriminate against those of whom they disapprove or over whom they wish to exert power.
This form of “religious liberty” seeks to foment the sense of persecution and paranoia of a collection of conservative religious groups that see themselves as on the cusp of losing their rightful position of dominance over American culture. It always singles out groups that can be blamed for society’s ills, and that may be subject to state-sanctioned discrimination and belittlement — L.G.B.T. Americans, secularists and Muslims are the favored targets, but others are available. The purpose of this “religious liberty” rhetoric is not just to secure a place of privilege, but also to justify public funding for the right kind of religion.
Barr watchers will know that this is nothing new. In a 1995 article he wrote for The Catholic Lawyer, which, as Emily Bazelon recently pointed out, appears to be something of a blueprint for his speech at Notre Dame, he complained that “we live in an increasingly militant, secular age” and expressed his grave concern that the law might force landlords to rent to unmarried couples. He implied that the idea that universities might treat “homosexual activist groups like any other student group” was intolerable.
This form of “religious liberty” is not a mere side issue for Mr. Barr, or for the other religious nationalists who have come to dominate the Republican Party. Mr. Barr has made this clear. All the problems of modernity — “the wreckage of the family,” “record levels of depression and mental illness,” “drug addiction” and “senseless violence” — stem from the loss of a strict interpretation of the Christian religion.
The great evildoers in the Notre Dame speech are nonbelievers who are apparently out on the streets ransacking everything that is good and holy. The solutions to society’s ills, Mr. Barr declared, come from faith. “Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct,” he said. “Religion helps frame moral culture within society that instills and reinforces moral discipline.” He added, “The fact is that no secular creed has emerged capable of performing the role of religion.”
Within this ideological framework, the ends justify the means. In this light, Mr. Barr’s hyperpartisanship is the symptom, not the malady. At Christian nationalist gatherings and strategy meetings, the Democratic Party and its supporters are routinely described as “demonic” and associated with “rulers of the darkness.” If you know that society is under dire existential threat from secularists, and you know that they have all found a home in the other party, every conceivable compromise with principles, every ethical breach, every back-room deal is not only justifiable but imperative. And as the vicious reaction to Christianity Today’s anti-Trump editorial demonstrates, any break with this partisan alignment will be instantly denounced as heresy.
It is equally clear that Mr. Barr’s maximalist interpretation of executive power in the Constitution is just an effect, rather than a cause, of his ideological commitments. In fact, it isn’t really an interpretation. It is simply an unfounded assertion that the president has what amount to monarchical powers. “George III would have loved it,” said Douglas Kmiec, a law professor at Pepperdine who once held Mr. Barr’s position as head of the Justice Department’s Office of Legal Counsel, of Mr. Barr’s theory. It’s almost beside the point to note, as the conservative lawyers group Checks & Balances recently wrote, that Mr. Barr’s view of history “has no factual basis.”
Mr. Barr’s constitutional interpretation is simply window dressing on his commitment to religious authoritarianism. And that, really, gets to the heart of the matter. If you know anything about America’s founders, you know they were passionately opposed to the idea of a religious monarchy. And this is the key to understanding the question, “What does Bill Barr want?”
The answer is that America’s conservative movement, having morphed into a religious nationalist movement, is on a collision course with the American constitutional system. Though conservatives have long claimed to be the true champions of the Constitution — remember all that chatter during previous Republican administrations about “originalism” and “judicial restraint” — the movement that now controls the Republican Party is committed to a suite of ideas that are fundamentally incompatible with the Constitution and the Republic that the founders created under its auspices.
Mr. Trump’s presidency was not the cause of this anti-democratic movement in American politics. It was the consequence. He is the chosen instrument, not of God, but of today’s Christian nationalists, their political allies and funders, and the movement’s legal apparatus. Mr. Barr did not emerge in order to serve this one particular leader. On the contrary, Mr. Trump serves a movement that will cynically praise the Constitution in order to destroy it, and of which Mr. Barr has made himself a hero.
French has been unfairly caricatured — but the caricature is worth defending.
Near as I can tell, the David French controversy revolves around allegations that the man is too much of an accommodating pragmatist on social issues. The charge is amusing to me, given that one of my defining experiences here at NR occurred when French denounced a column I wrote last year about the need for conservatives to pragmatically accommodate transgender Americans.