PI TRO Re Open Kentucky Parochial Schools

Case: 3:20-cv-00075-GFVT Doc #: 15 Filed: 11/22/20 Page: 1 of 2 - Page ID#: 188
IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT FRANKFORT
Electronically Filed
DANVILLE CHRISTIAN ACADEMY, INC., et. al.: Case No. 3:20-CV-00075-GFVT

Plaintiffs :
v. :
ANDREW BESHEAR, in his official capacity as :
Governor
:
Defendant
EMERGENCY MOTION FOR TEMPOARY RESTRAINING ORDER, AND
PRELIMINARY INJUNCTION, BY INTERVENING PLAINTIFFS PLEASANT VIEW
BAPTIST CHURCH, PLEASANT VIEW BAPTIST SCHOOL, DALE MASSENGALE,
VERITAS CHRISTIAN ACADEMY, HIGHLANDS LATIN SCHOOL, MARYVILLE
BAPTIST CHURCH, MICAH CHRISTIAN SCHOOL, JACK ROBERTS, FAITH
BAPTIST CHURCH, FAITH BAPTIST ACADEMY, TOM OTTO, WESLEY DETERS
AND MITCH DETERS, ON BEHALF OF THEMSELVES AND THEIR MINOR
CHILDREN MD, WD, and SD, CENTRAL BAPTIST CHURCH, CENTRAL BAPTIST
ACADEMY, CORNERSTONE CHRISTIAN SCHOOL, JOHN MILLER, ON BEHALF
OF HIMSELF AND HIS MINOR CHILDREN BM, EM, AND HM
Pleasant View Baptist Church, Pleasant View Baptist School, Pastor Dale Massengale,
Veritas Christian Academy, Maryville Baptist Church, MICAH Christian School, Pastor Jack
Roberts, Mayfield Creek Baptist Church, Mayfield Creek Christian School, Pastor Terry Norris,
Faith Baptist Church, Faith Baptist Academy, Pastor Tom Otto, Wesley Deters, Mitch Deters, on
behalf of themselves and their minor children, MD, WD, and SD, Central Baptist Church,
Central Baptist Academy, Pastor Mark Eaton, Cornerstone Christian Church, Cornerstone
Christian School, John Miller, on behalf of himself and his minor children BM, EM, and HM
(collectively the “Intervening Plaintiffs”)1 seek an order granting them a temporary restraining
1
Because well settled, and recent, case law makes this Motion and relief sought exceedingly
straightforward, this Motion deals with only the Governor’s restrictions on shutting down in
person religious school classes. We will file a separate motion for a restraining order and
Case: 3:20-cv-00075-GFVT Doc #: 15 Filed: 11/22/20 Page: 2 of 2 - Page ID#: 189
order and/or preliminary injunction. A Memorandum in Support is attached hereto. A proposed
order is attached.
Respectfully submitted,
/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
859/486-6850 (v)
513/257-1895 (c)
859/495-0803 (f)
[email protected]
/s/Thomas Bruns_____________
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
[email protected]
513-312-9890
/s/Robert A. Winter, Jr. __________

Robert A. Winter, Jr. (KBA #78230)
P.O. Box 175883
Fort Mitchell, KY 41017-5883
(859) 250-3337
[email protected]
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I certify that I have served a copy upon all Counsel of Record by serving same in the Court’s
CM/ECF System this 22 day of November, 2020.
preliminary injunction relating to his ban on groups (and single families) of more than 8
gathering in private residences.
Case: 3:20-cv-00075-GFVT Doc #: 15-1 Filed: 11/22/20 Page: 1 of 19 - Page ID#: 190


Plaintiffs :
v. :
Governor
:
Defendant
MEMORANDUM IN SUPPORT OF EMERGENCY MOTION FOR TEMPOARY
RESTRAINING ORDER, AND PRELIMINARY INJUNCTION, BY INTERVENING
PLAINTIFFS PLEASANT VIEW BAPTIST CHURCH, PLEASANT VIEW BAPTIST
SCHOOL, DALE MASSENGALE, VERITAS CHRISTIAN ACADEMY, HIGHLANDS
LATIN SCHOOL, MARYVILLE BAPTIST CHURCH, MICAH CHRISTIAN SCHOOL,
JACK ROBERTS, FAITH BAPTIST CHURCH, FAITH BAPTIST ACADEMY, TOM
OTTO, WESLEY DETERS AND MITCH DETERS, ON BEHALF OF THEMSELVES
AND THEIR MINOR CHILDREN MD, WD, and SD, CENTRAL BAPTIST CHURCH,
CENTRAL BAPTIST ACADEMY, CORNERSTONE CHRISTIAN SCHOOL, AND
JOHN MILLER, ON BEHALF OF HIMSELF AND HIS MINOR CHILDREN BM, EM,
AND HM
Intervening Plaintiffs Pleasant View Baptist Church, Pleasant View Baptist School,
Pastor Dale Massengale, Veritas Christian Academy, Maryville Baptist Church, MICAH
Christian School, Pastor Jack Roberts, Mayfield Creek Baptist Church, Mayfield Creek Christian
School, Pastor Terry Norris, Faith Baptist Church, Faith Baptist Academy, Pastor Tom Otto,
Wesley Deters, Mitch Deters, on behalf of themselves and their minor children, MD, WD, and
SD, Central Baptist Church, Central Baptist Academy, Pastor Mark Eaton, Cornerstone Christian
Church, Cornerstone Christian School, and John Miller, on behalf of himself and his minor
children BM, EM, and HM, (collectively the “Christian School Plaintiffs”), submit this
1
Memorandum in Support of their Emergency Motion for Temporary Restraining Order and
Preliminary Injunction.1
I. FACTS
Background and COVID-19 actions by the Governor
In March, 2020 and in the weeks that followed, Governor Beshear issued a number of
restrictions related to COVID-19. (Int. Compl., ¶7). On March 19, 2020, Governor Beshear
implemented an outright ban on religious gatherings across the state. (Int. Compl., ¶8).
Specifically, Governor Beshear, acting through Secretary Eric Friedlander of the Cabinet for
Health and Family Services, issued an order stating that “[a]ll mass gatherings are hereby
prohibited.” Id. In the March 19, 2020 order, Governor Beshear broadly described the scope of
his prohibition as including “any event or convening that brings together groups of individuals,
including, but not limited to, community, civic, public, leisure, faith-based, or sporting events;
parades; concerts; festivals; conventions; fundraisers; and similar activities.” (Int. Compl., ¶9).
Thus, the order, while very broad, specifically banned “faith-based” gatherings by name.
(Int. Compl., ¶10). The order did not define mass gatherings merely based on the number of
people coming together, nor did it narrow its prohibition to the kind of indoor or closed-space
gatherings that increase the risk of community transmission of the virus. Id. Rather, Governor
Beshear’s March 19, 2020 Order broadly banned any activity “that brings together groups of
individuals,” which specifically included any and all “faith-based” gatherings. Id.
1
Because well settled, and recent, case law makes this Motion and relief sought exceedingly
straightforward, this Motion deals with only the Governor’s restrictions on shutting down in
person religious school classes. We will file a separate motion for a restraining order and
preliminary injunction relating to his ban on groups (and families) of more than 8 gathering in
private residences.
2
However, in an exercise in unconstitutional word play, and due to an unconstitutional
value judgment, the order carved out purely secular activities from the scope of its prohibition.
Specifically, the order went on to state that “a mass gathering does not include normal operations
at airports, bus and train stations, medical facilities, libraries, shopping malls and centers, or
other spaces where persons may be in transit.” Id. The order also stated that a mass gathering
“does not include typical office environments, factories, or retail or grocery stores where large
numbers of people are present, but maintain appropriate social distancing.”
Thus, under the March 19, 2020, mass gatherings with a faith-based purpose were
expressly singled out for prohibition, while mass gatherings of secular organizations and their
activities were not—even when those secular activities involved large numbers of people. (Int.
Compl., ¶13).
On Good Friday, two days before Easter Sunday, Governor Beshear held his daily press
conference. (Int. Compl., ¶14). During his presentation, Governor Beshear announced that his
administration would be taking down the license plate numbers of any person attending an in-
person church service on Easter Sunday. Id. Then, he said, local health officials would be
contacting each person and requiring a mandatory 14-day quarantine. Id. Under Kentucky law,
violation of such an order is a misdemeanor punishable by criminal prosecution. See KRS
39A.990. Id.
On Easter Sunday, Governor Beshear acted on his unconstitutional threat. Kentucky State
Police troopers, acting on Governor Beshear’s orders, traveled to the Maryville Baptist Church to
record license plate numbers of those attending the church’s Easter service. (Int. Compl., ¶15).
The troopers also provided churchgoers with written notices that their attendance at the service
3
constituted a criminal act. Id. Afterward, the vehicle owners received letters ordering them to
self-quarantine for 14 days or else be subject to further sanction. Id.
On Saturday, May 2, 2020, and as a result of an emergency appeal, the Sixth Circuit
enjoined Governor Beshear from prohibiting drive-in church services so long as the churches
adhered to the same public health requirements mandated for “life-sustaining” entities. See
Maryville Baptist Church v. Beshear, 957 F.3d 610, 616 (6th Cir. 2020) (per curiam). One week
later, on Saturday, May 9, 2020, again as a result of an emergency appeal, the Sixth Circuit again
enjoined Governor Beshear. Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (per curiam), which
extended Maryville to re-open in-person worship in the Commonwealth.
One day earlier, this Court granted a temporary restraining order stopping Governor
Beshear from restricting religious practices. In Tabernacle Baptist Church of Nicholasville, Inc.
v. Beshear, 459 F. Supp. 3d 847 (E.D. Ky. 2020), this Court concluded that “[e]ven viewed
through the state-friendly lens of Jacobson [v. Massachusetts], the prohibition on religious
services presently operating in the Commonwealth is ‘beyond what was reasonably required for
the safety of the public.’” Id. at 854–55 (citation omitted).
In the face of this well-established law, on November 18, 2020, Governor Beshear issued
two executive orders, Executive Order 2020-968, and 2020-969, which are attached to the
Intervening Complaint as Exhibits A and B. (Int. Compl., ¶26).
Executive Order 2020-969 (“School Ban”) prohibits and criminalizes in-person
instruction for all schools, including private, religious schools, in grades K-12. Consequently,
this School Ban unconstitutionally infringes on the rights of certain of these Plaintiffs, who
4
include religious education and worship services as part of their educational mission, which is
based upon their sincerely held beliefs. (Int. Compl., ¶28).
While banning in-person religious education and instruction, the Governor permits a
number of comparable secular activities of varying sizes. (Int. Compl., ¶29). The Governor
permits childcare programs to continue, including limited duration child care centers, which are
permitted to have children in group sizes of 15, and, depending on the space of the facility,
hundreds of children. Just as schools do, these facilities provide meals for children, and instruct
children in classroom set ups identical to schools. (Int. Compl., ¶30). These centers are
permitted to, and do, provide secular education instruction as part of their programming,
including assisting children with school assignments. Id.
Governor Beshear permits unlimited sizes of persons to assemble in factories and
manufacturing, with social distancing, and, indeed, classroom instruction can occur in these
settings. (Int. Compl., ¶31). Governor Beshear permits movie theaters to operate, with children
in attendance, at 50% capacity. (Int. Compl., ¶32). Executive Order 2020-968 permits gyms and
fitness centers to operate at 33% capacity. (Int. Compl., ¶33). Governor Beshear permits
auctions to operate at 50% capacity indoors, and unlimited capacity outdoors. (Int. Compl.,
¶34). Gas stations, grocery stores, retail establishments, and other businesses also remain open.
(Int. Compl., ¶35). Governor Beshear permits gaming facilities to remain open. (Int. Compl.,
¶36). Governor Beshear permits secular colleges and universities to remain open. (Int. Compl.,
¶37).
Amazingly, the very day after Governor Beshear issued Executive Order 2020-969,
which as of November 23 closed, and criminalized attendance at, all in-person instruction at all
public and private elementary, middle, and high schools in the Commonwealth, the director of
5
the CDC announced “[t]he truth is, for kids K-12, one of the safest places they can be, from our
perspective, is to remain in school,” and that it is “counterproductive . . . from a public health
point of view, just in containing the epidemic, if there was an emotional response, to say, ‘Let’s
close the schools.’” (Int. Compl., ¶40). Houses of worship may continue to operate and may
conduct Bible studies any day of the week in enclosed spaces. (Int. Compl., ¶41). They may
also hold Sunday school on their premises in enclosed locations. Id. But, Governor Beshear
refuses to allow religious schools to conduct nearly identical activities in, at least for some of
these Plaintiffs, the same exact space. Id.
The Plaintiffs, and their Protected Activities
Plaintiffs Pleasant View Baptist Church, Pleasant View Baptist School, Pastor Dale
Massengale operate and run a church and school in McQuady, Breckenridge County, Kentucky,
with 70 children attending in grades K-12. (Int. Compl., ¶42). Veritas Christian Academy is
located in Lexington, Fayette County, with 170 children attending in grades K-12. (Int. Compl.,
¶43). Highlands Latin School is located in Louisville, Jefferson County, with approximately
700 children attending in grades K-12. (Int. Compl., ¶44).
Plaintiffs Maryville Baptist Church, MICAH Christian School, and Pastor Jack Roberts
operate and run a church and school in Hillview, Bullitt County, Kentucky, with approximately
175 children attending in grades K-12. (Int. Compl., ¶45). Plaintiffs Mayfield Creek Baptist
Church, Mayfield Creek Christian School, and Pastor Terry Norris operate and run a church and
school in Bardwell, Carlisle County, Kentucky, with approximately 45 children attending in
grades K-12. (Int. Compl., ¶46).
6
Plaintiffs Faith Baptist Church, Faith Baptist Academy, Pastor Tom Otto operate and run
a church and school in Bardwell, Carlisle County, Kentucky, with approximately 31 children
attending in grades K-12. (Int. Compl., ¶47). Plaintiffs Central Baptist Church, Central Baptist
Academy, Pastor Mark Eaton operate and run a church and school in Mount Vernon, Rockcastle
County, Kentucky, with approximately 10 children attending in grades between K-12. (Int.
Compl., ¶49). Cornerstone Christian Church and Cornerstone Christian School operates and
runs a church and school in London, Laurel County, Kentucky with 115 children enrolled in
grades K-12, and John Miller is the President of the Board of the school and a parent who brings
the case on his own behalf and those of his minor children who attend the school, BM, EM, and
HM. (Int. Compl., ¶50).
Plaintiffs Wesley Deters, Mitch Deters, on behalf of themselves and their minor children,
MD, WD, and SD bring suit for the private, parochial school shutdown as well. (Int. Compl.,
¶48). The children attend parochial schools within the Covington Diocese of the Catholic
Church. Id. The Diocese has indicated that it would keep the children in-person for instruction
but-for the challenged school shutdown orders and, thus, an order enjoining enforcement of these
orders redresses the injury to these Plaintiffs. Id. Tens of thousands of students attend these
diocesan schools. Id.
In each case, the school is an extension of the church and ministry and, as part of the
school curriculum, the children have religious education and chapel service. (Int. Compl., ¶¶
42-50). In each case, attendance at the various schools by the children and instruction provided
by the school is part of the sincerely held religious beliefs of the congregants of the church. Id.
Further, and for the avoidance of all doubt, the schools have all implemented, at
significant cost, COVID-19 mitigation measures including, without limitation, social distancing,
7
sanitation, temperature checks, partitions, lunch room procedures, mask wearing, and other CDC
recommended control measures. Id. Further, there is absolutely no evidence of any community
spread of COVID-19 within the schools. Id.
That is not to say that there have not been children or staff members with cases in these
schools, but there have not been any clusters or evidence of spread within the schools. This is in
accordance with increasing evidence that schools that practice social distancing and other
COVID-19 mitigation measures do not contribute to the spread of the disease, but, in fact, help
to mitigate it.2
Collectively, the preceding Plaintiffs, the “Christian School Plaintiffs” would be unable
to fulfill their religious purpose and mission—or implement their religious educational
philosophy—and their religious beliefs would be substantially burdened, if the schools were
prohibited from offering in-person, in-class instruction to their students. (Int. Compl., ¶51).
II. LAW AND ARGUMENT
A. Standard of Review
When deciding whether to issue a temporary restraining order or preliminary injunction,
the court must consider the following four factors: (1) Whether the movant has demonstrated a
strong likelihood of success on the merits; (2) Whether the movant would suffer irreparable
harm; (3) Whether issuance would cause substantial harm to others; and (4) Whether the public
interest would be served by issuance. Suster v. Marshall, 149 F.3d 523, 528 (6th Cir. 1998);
Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir.
2
https://www.wabi.tv/2020/11/20/maine-cdc-director-says-covid-19-is-not-being-spread-in-
schools/ (last visited 11/22/2020); https://blogs.edweek.org/edweek/campaign-k-
12/2020/11/governors-schools-open-covid-thanksgiving.html (last visited 11/22/2020);
https://www.foxcarolina.com/cdc-director-says-coronavirus-is-not-spreading-in-
schools/article_2405f032-e5f2-54eb-a555-defe9f70a88a.html (last visited 11/22/2020).
8
2006). These "are factors to be balanced, not prerequisites that must be met." In re DeLorean
Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).
Clear Sixth Circuit law establishes that the remaining factors are met where constitutional
rights are infringed upon, and so, in these cases, the likelihood of success factor is dispositive.
H.D.V. - Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir. 2009) (abuse of discretion
not to grant preliminary injunction where constitutional violation found); Roberts v. Neace, 958
F.3d 409 (6th Cir. 2020); Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir.
2020); Elrod v. Burns, 427 U.S. 347, 373 (1976) (irreparable harm from violation of rights);
Foster v. Dilger, 2010 U.S. Dist. LEXIS 95195 (EDKY 2010) (no substantial harm to others,
even where registry incurred printing costs, where constitutional rights at stake); Martin-
Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir. 1982); see also G & V Lounge v.
Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1999) ("[I]t is always in the public
interest to prevent the violation of a party's constitutional rights.").3
B. Plaintiffs have demonstrated a likelihood of success on the merits for their Free
Exercise Claim
Executive Order 2020-969 (“School Ban”) prohibits and criminalizes in person
instruction for all schools, including private religious schools, in grades K-12, such as certain of
these Plaintiffs, which include such religious education, and worship services as part of that
education, as a part of their sincerely held beliefs.
In the meantime, the Governor has permitted a number of comparable or perhaps even
more risky secular activities. While banning in-person religious education and instruction, the
Governor permits a number of comparable secular activities of varying sizes. (Int. Compl., ¶29).
3
As an aside, the Intervening Plaintiffs have unquestionably demonstrated standing through their
interactions with the local health departments that have confirmed enforcement and enforcement
threats, as well as the Education Commissioner’s public statements. (Int. Compl. ¶¶ 55-63).
9
The Governor permits childcare programs to continue, including limited duration child care
centers,4 which are permitted to have children in group sizes of 15, and, depending on the space
of the facility, hundreds of children.5 Just as schools do, these facilities provide meals for
children, and instruct children in classroom set ups identical to schools. (Int. Compl., ¶30).
These centers are permitted to, and do, provide secular education instruction as part of their
programming, including assisting children with school assignments. Id.
Governor Beshear permits unlimited sizes of persons to assemble in factories and
manufacturing, with social distancing, and, indeed, classroom instruction can occur in these
settings.6 (Int. Compl., ¶31). Governor Beshear permits movie theaters to operate, with children
in attendance, at 50% capacity.7 (Int. Compl., ¶32). Executive Order 2020-968 permits gyms and
fitness centers to operate at 33% capacity. (Int. Compl., ¶33). Governor Beshear permits
auctions to operate at 50% capacity indoors, and unlimited capacity outdoors.8 (Int. Compl.,
¶34). Gas stations, grocery stores, retail establishments, and other businesses also remain open.
4
A limited duration center was a “pop up” center, often hosted by local YMCA’s, were
originally set up for the children of “essential” healthcare workers, first responders, and others.
They have had favored status for months, and, with the recent school shutdown, that favored
status remains even more apparent.
5
https://apps.legislature.ky.gov/law/kar/922/002/405E.pdf (last visited 11/20/2020).
6
https://govsite-
assets.s3.amazonaws.com/s47CFNaSK6YhJMGPHBgB_Healthy%20at%20Work%20Reqs%20-
%20Manufacturing%20Distribution%20Supply%20Chain%20-
%20Final%20Version%203.0.pdf (last visited 11/20/2020).
7
https://govsite-assets.s3.amazonaws.com/0iTtfR0ET2GFa05zMWie_2020-7-1%20-
%20Healthy%20at%20Work%20Reqs%20Movie%20Theaters%20-
%20Final%20Version%203.0.pdf (last visited 11/20/2020)
8
https://govsite-assets.s3.amazonaws.com/VTgkgeDSbmgsImOob3lA_2020-7-22%20-
%20Healthy%20at%20Work%20Reqs%20-%20Auctions%20-%20Version%203.1.pdf (last
visited 11/20/2020)
10
(Int. Compl., ¶35). Governor Beshear permits gaming facilities to remain open.9 (Int. Compl.,
¶36). Governor Beshear permits secular colleges and universities to remain open. (Int. Compl.,
¶37).
As in Roberts, 958 F.3d 409, “[d]o the four pages of exceptions in the orders, and the
kinds of group activities allowed, remove them from the safe harbor for generally applicable
laws? We think so.” Id. at 413. “As a rule of thumb, the more exceptions to a prohibition, the
less likely it will count as a generally applicable, non-discriminatory law.” Id. "At some point,
an exception-ridden policy takes on the appearance and reality of a system of individualized
exemptions, the antithesis of a neutral and generally applicable policy and just the kind of state
action that must run the gauntlet of strict scrutiny." Id. at 413-414.
As in Roberts, “the Church[es] and [their] congregants just want to be treated equally.” Id. at
414. “They don't seek to insulate themselves from the Commonwealth's general public health
guidelines.” Id. “They simply wish to incorporate them into their worship [and education]
services.” Id. “They are willing to [and do] practice social distancing.” Id. “They are willing to
[and do] follow any hygiene requirements.” Id. “They do not ask to share a chalice.” Id. “The
Governor has offered no good reason for refusing to trust the congregants who promise to use
care in [education as an outreach of their] worship in just the same way it trusts accountants,
lawyers, and laundromat workers to do the same.” Id. Thus, “restrictions inexplicably applied to
one group and exempted from another do little to further these goals and do much to burden
religious freedom.” Id. at 414.
9
https://www.kentuckytoday.com/stories/as-many-mitigate-restriction-damages-gaming-venues-
keep-rolling,29171 (last visited 11/21/2020).
11
“All of this requires the orders to satisfy the strictures of strict scrutiny.” Id. at 415.
“They cannot.” Id. “At the same time, no one contests that the Governor has a compelling
interest in preventing the spread of a novel, highly contagious, sometimes fatal virus.” Id. “The
question is whether the orders amount to "the least restrictive means" of serving these laudable
goals.” Id. “That's a difficult hill to climb, and it was never meant to be anything less.” Id.
“There are plenty of less restrictive ways to address these public-health issues.” Id.
“Why not insist that the [religious school students] adhere to social-distancing and other health
requirements and leave it at that—just as the Governor has done for comparable secular
activities?” Id. “Or perhaps cap the number of [students] coming together at one time [just as
the Governor did for daycares]?” Id. “If the Commonwealth trusts its people to innovate around
a crisis in their professional lives, surely it can trust the same people to do the same things in the
exercise of their faith.” Id.
Perhaps, however, the best evidence of all is experience: these Plaintiffs have held in
person classes since August, without clusters of COVID-19 or COVID-19 spread within the
schools. Why? Because they have limited class sizes, required masks, sanitized frequently,
spread students out in a socially distanced manner, implemented hand-washing requirements,
temperature checks, and implemented CDC best practices.10
The Governor’s ban on in-person school for religious schools is violative of the Free
Exercise Clause for yet another reason: it violates the right of religious autonomy. Our Lady of
Guadalupe, 140 S. Ct. at 2055. The question presented in Our Lady of Guadalupe was whether
“the First Amendment permits courts to intervene in employment disputes involving teachers at
10
https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/schools.html (last
visited 11/22/2020).
12
religious schools who are entrusted with the responsibility of instructing their students in their
faith.” Id. The Court held that “[t]he religious education and formation of students is the very
reason for the existence of most private schools, and therefore the selection and supervision of
the teachers upon whom the schools rely to do this work lie at the core of their mission.” Id.
(emphasis added). As a result, the Court concluded that a religious institution’s decision about
who educates its children about religious faith is “an internal church decision that affects the
faith and mission of the church.” Id. at 2062 (quoting Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC, 565 U.S. 171, 190 (2012)). It, in other words, is a decision that is
“essential to the organization’s central mission.” Id. at 2060. The First Amendment “outlaws . . .
intrusion” into such matters. Id.
In reaching this conclusion, the Court emphasized the centrality of religious schooling to
religious faith. The Court explained that “educating young people in their faith, inculcating its
teachings, and training them to live their faith are responsibilities that lie at the very core of the
mission of a private religious school.” Id. at 2064 (emphasis added). “Religious education … is
vital to many faiths practiced in the United States.” Id. For example, “in the Catholic tradition,
religious education is ‘intimately bound up with the whole of the Church’s life.’” Id. at 2065
(quoting Catechism of the Catholic Church 8 (2d ed. 2016)). “Similarly, Protestant churches,
from the earliest settlements in this country, viewed education as a religious obligation.” Id. In
fact, “[m]ost of the oldest educational institutions in this country were originally established by
or affiliated with churches, and in recent years, non-denominational Christian schools have
proliferated with the aim of inculcating Biblical values in their students.” Id. The Court also
discussed the centrality of religious schooling to other faiths, including Judaism, Islam, the
Church of Jesus Christ of Latter-day Saints, and Seventh-day Adventists. Id. at 2065–66. The
13
Supreme Court thus observed the “close connection that religious institutions draw between their
central purpose and educating the young in the faith.” Id. at 2066.
The Government can no more prohibit religious societies from conducting in person
classes than it can dictate who can and cannot be employed by them.
Not only has Governor Beshear told religious schools that they cannot hold in-person
classes, but he is simultaneously permitting religious institutions to hold in-person worship
services. Governor Beshear has thus declared that certain religious activities are legal—namely,
in-person worship—while others are illegal—specifically, in-person religious schooling. The
First Amendment forbids this direct intrusion onto the “autonomy” of churches and religious
institutions.
This case is not distinguishable from Roberts.11 As such, a restraining order and/or
preliminary injunction should be granted on the Intervening Plaintiffs’ Free Exercise Claims.
C. Plaintiffs have demonstrated a likelihood of success on the merits for their

Establishment Clause Claim
A statute or practice that touches on religion, if it to be permissible under the
establishment of religion clause of the Constitution's First Amendment, (1) must have a secular
purpose, (2) must neither advance nor inhibit religion in its principal or primary effect, and (3)
must not foster an excessive entanglement of government with religion. In Allegheny v. ACLU of
Pittsburgh, 492 U.S. 573 (1989). These requirements are conjunctive, not disjunctive.
11
The Governor may argue that a one-justice concurrence in South Bay United Pentecostal
Church v. Newsom, 140 S. Ct. 1613 (Mem.) (2020), which arose in a different procedural
context, somehow changes this conclusion. This Court has already rejected that argument.
Ramsek v. Beshear, No. 3:20-cv-36, 2020 WL 3446249, at *4–*6 (E.D. Ky. June 24, 2020),
appeal filed No. 20-5749 (6th Cir.). And the Sixth Circuit recently reiterated that its decisions in
Maryville Baptist and Roberts remain binding. See Maryville Baptist Church, Inc. v. Beshear,
977 F.3d 561, 563 (6th Cir. 2020) (per curiam).
14
The touchstone for analysis is the principle that the "First Amendment mandates
governmental neutrality between religion and religion, and between religion and nonreligion."
Epperson v. Arkansas, 393 U.S. 97, 104 (1968). “Manifesting a purpose to favor one faith over
another … clashes with the ‘understanding, reached . . . after decades of religious war, that
liberty and social stability demand a religious tolerance that respects the religious views of all
citizens . . . .’" McCreary County v. ACLU, 545 U.S. 844, 860 (2005).
Is there any secular purpose towards permitting religious services and education in the
chapel and Sunday School, but not during the week in the classroom? No. That, alone, is fatal
to the Governor. Does the closure orders advance nor inhibit religion in its principal or primary
effect? Yes. Again, fatal to the Governor. Does the closure orders foster an excessive
entanglement of government with religion? Yes. Again, fatal to the Governor.
As such, a restraining order and/or preliminary injunction should be granted on the
Intervening Plaintiffs’ Establishment Clause Claims.
D. Plaintiffs have demonstrated a likelihood of success on the merits for their

Kentucky RFRA Claim
Governor Beshear’s school-closure order also violates Kentucky law. Kentucky’s
Religious Freedom Restoration Act (“RFRA”) is clear: “Government shall not substantially
burden a person’s freedom of religion.” Ky. Rev. Stat. 446.350. A “burden” is defined to include
even “indirect burdens such as withholding benefits, assessing penalties, or an exclusion from
programs or access to facilities.” Id. In cases brought under RFRA, judges “may question only
the sincerity of a plaintiff’s religious belief, not the correctness or reasonableness of that
religious belief.” On Fire Christian, 453 F. Supp. 3d at 913. “And as with the strict scrutiny
analysis in the constitutional context above, to survive under RFRA the government must ‘show
that it lacks other means of achieving its desired goal without imposing a substantial burden on
15
the exercise of religion by the objecting parties in these cases.’” Id. (citing Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682, 727 (2014)); see also Maryville Baptist Church, 957 F.3d at
612 (“[T]he purpose of the Kentucky RFRA is to provide more protection than the free-exercise
guarantee of the First Amendment . . . .”).
There is little doubt that Governor Beshear’s orders substantially burdens freedom of
religion, and excludes the Plaintiffs from programs and access to facilities.
Governor Beshear must prove “by clear and convincing evidence that [he] has a
compelling governmental interest in infringing the specific act or refusal to act and has used the
least restrictive means to further that interest.” Ky. Rev. Stat. 446.350. In other words, can the
Governor’s order survive strict scrutiny? No. As described above, the Governor cannot meet his
evidentiary burden. That is particularly so in light of his decision to permit the myriad of
exceptions and continued operations of various activities.
As such, a restraining order and/or preliminary injunction should be granted on the
Intervening Plaintiffs’ Kentucky RFRA Claims.
E. Plaintiffs have demonstrated a likelihood of success on the merits for their right
to have a private education and control their child’s education claim
Approximately 100 years ago, the United States Supreme Court established in Meyer v.
Nebraska, 262 U.S. 390 (1923), that parents had the right to direct and control the education of
their children, including as to curricula. Two years later, the Court decided Pierce v. Society of
Sisters, 268 U.S. 510 (1925). There, as here, the Plaintiff provided “secular and religious
education and care of children.” Id. at 532. There, as here, “[s]ystematic religious instruction
and moral training according to the tenets of the … Church are also regularly provided.” Id.
See, also, Farrington v. Tokushige, 273 U.S. 284 (1927); Wisconsin v. Yoder, 406 U.S. 205
16
(1972); Troxel v. Granville, 530 U.S. 57, 66 (2000); Runyon v. McCrary, 427 U.S. 160, 178
(1976).
Where, as here, the claim is coupled with a Free Exercise challenge, strict scrutiny is
applied to restrictions upon private religious schools. Ohio Ass'n of Indep. Sch. v. Goff, 92 F.3d
419, 423 (6th Cir. 1996); Vandiver v. Hardin County Bd. of Educ., 925 F.2d 927, 931 (6th Cir.
1991). Can Governor Beshear meet strict scrutiny? Again, the answer is no. While he may
have a compelling interest in preventing the spread of COVID-19, all evidence to date suggests
no spread going on in schools that implement public health and safety protocols. Moreover, he
could have treated the private religious schools to operate like the daycares and universities,
permitting in person classes, while perhaps requiring sanitation, distancing, and other public
health protocols (which all of these Plaintiffs have been implementing all along).
F. Plaintiffs have demonstrated a likelihood of success on the merits for their right
to Peaceably Assemble and Associate claim
The First Amendment guaranties the right “of the people peaceably to assemble.” This
guaranty has also been incorporated against the states. DeJonge v. Oregon, 299 U.S. 353 (1937);
NAACP v. Button, 371 U.S. 415, 430, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963) (finding that "the
First and Fourteenth Amendments protect certain forms of orderly group activity"). These rights,
being fundamental rights, trigger strict scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (1988).
The right of association, also, is implicated where individuals associate to exercise other
First Amendment rights, including the group exercise of religion. Roberts v. United States
Jaycees, 468 U.S. 609, 617-618 (1984). There is no question but that these Plaintiffs have
banded together to exercise, as a group, their sincerely held religious beliefs, which includes
religious instruction of their children. Our Lady of Guadalupe, 140 S. Ct. at 2055
17
Again, strict scrutiny is triggered. And, again, the Governor cannot meet his burden
under that heightened scrutiny on these facts.
G. A statewide injunction and restraining order should issue

As this Court articulated recently in Tabernacle Baptist Church, 459 F. Supp. 3d 847,
856, and in looking to the principles articulated in Califano v. Yamasake, 442 U.S. 682 (1979),
"the scope of injunctive relief is dictated by the extent of the violation established, not by the
geographical extent of the plaintiff class." “In the present case, the Executive Order at issue does
not just affect [the named and Intervening Plaintiffs].” Id. The Executive Order applies to all
[private religious schools].” Id. “Therefore, … injunctive relief may extend statewide because
the violation established impacts the entire state of Kentucky.” Id.
III. CONCLUSION
Intervening Plaintiffs have demonstrated that the requested Emergency Temporary
Restraining Order and Preliminary Injunction should be granted.
Respectfully submitted,

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
859/486-6850 (v)
513/257-1895 (c)
859/495-0803 (f)
[email protected]
/s/Thomas Bruns_____________
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
[email protected]
513-312-9890
18
/s/Robert A. Winter, Jr. __________

Robert A. Winter, Jr. (KBA #78230)
P.O. Box 175883
Fort Mitchell, KY 41017-5883
(859) 250-3337
[email protected]
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I certify that I have served a copy upon all Counsel of Record by serving same in the Court’s
CM/ECF System this 22 day of November, 2020.
19


Plaintiffs :
v. :
Governor
:
Defendant
ORDER GRANTING TEMPORARY RESTRAINING ORDER BY INTERVENING
PLAINTIFFS AS TO PRIVATE RELIGIOUS SCHOOL CLOSURES
The Court, being fully apprised, and for the reasons set forth in the Intervening Plaintiffs’
Motion for Restraining Order, GRANTS the Temporary Restraining Order motion sought by
Intervening Plaintiffs Pleasant View Baptist Church, et. al. Pursuant to FRCP 65, the Defendant,
Governor Andrew Beshear, in his official capacity as Governor, and his officers, agents,
servants, employees, and attorneys and those acting in concert with him, are hereby ENJOINED
from enforcing Executive Order 2020-969 against the Intervening Plaintiffs, and against any
other private religious school in the Commonwealth of Kentucky. Bond is waived under FRCP
65(c).
IT IS SO ORDERED:

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Case: 3:20-cv-00075-GFVT Doc #: 15 Filed: 11/22/20 Page: 1 of 2 - Page ID#: 188

IN THE UNITED STATES DISTRICT COURT

DANVILLE CHRISTIAN ACADEMY, INC., et. al.: Case No. 3:20-CV-00075-GFVT

order and/or preliminary injunction. A Memorandum in Support is attached hereto. A proposed

/s/ Christopher Wiest___________

/s/Robert A. Winter, Jr. __________

Attorneys for Plaintiffs

/s/ Christopher Wiest___________

IN THE UNITED STATES DISTRICT COURT

DANVILLE CHRISTIAN ACADEMY, INC., et. al.: Case No. 3:20-CV-00075-GFVT

Background and COVID-19 actions by the Governor

However, in an exercise in unconstitutional word play, and due to an unconstitutional

numbers of people are present, but maintain appropriate social distancing.”

violation of such an order is a misdemeanor punishable by criminal prosecution. See KRS

self-quarantine for 14 days or else be subject to further sanction. Id.

extended Maryville to re-open in-person worship in the Commonwealth.

the safety of the public.’” Id. at 854–55 (citation omitted).

Intervening Complaint as Exhibits A and B. (Int. Compl., ¶26).

Executive Order 2020-969 (“School Ban”) prohibits and criminalizes in-person

based upon their sincerely held beliefs. (Int. Compl., ¶28).

including assisting children with school assignments. Id.

Governor Beshear permits unlimited sizes of persons to assemble in factories and

perspective, is to remain in school,” and that it is “counterproductive . . . from a public health

these Plaintiffs, the same exact space. Id.

The Plaintiffs, and their Protected Activities

700 children attending in grades K-12. (Int. Compl., ¶44).

school in Bardwell, Carlisle County, Kentucky, with approximately 45 children attending in

grades K-12. (Int. Compl., ¶46).

HM. (Int. Compl., ¶50).

diocesan schools. Id.

spread of COVID-19 within the schools. Id.

II. LAW AND ARGUMENT

Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).

interest to prevent the violation of a party's constitutional rights.").3

education, as a part of their sincerely held beliefs.

programming, including assisting children with school assignments. Id.

Governor Beshear permits unlimited sizes of persons to assemble in factories and

an exception-ridden policy takes on the appearance and reality of a system of individualized

religious freedom.” Id. at 414.

exercise of their faith.” Id.

spread students out in a socially distanced manner, implemented hand-washing requirements,

temperature checks, and implemented CDC best practices.10

intrusion” into such matters. Id.

classes, but he is simultaneously permitting religious institutions to hold in-person worship

in-person worship—while others are illegal—specifically, in-person religious schooling. The

C. Plaintiffs have demonstrated a likelihood of success on the merits for their

entanglement of government with religion? Yes. Again, fatal to the Governor.

As such, a restraining order and/or preliminary injunction should be granted on the

Intervening Plaintiffs’ Establishment Clause Claims.

D. Plaintiffs have demonstrated a likelihood of success on the merits for their

guarantee of the First Amendment . . . .”).

exceptions and continued operations of various activities.

As such, a restraining order and/or preliminary injunction should be granted on the

Intervening Plaintiffs’ Kentucky RFRA Claims.

under that heightened scrutiny on these facts.

G. A statewide injunction and restraining order should issue

the violation established impacts the entire state of Kentucky.” Id.

Intervening Plaintiffs have demonstrated that the requested Emergency Temporary