On Friday, May 8, U.S. District Court Judge Gregory F. Van Tatenhove granted a temporary restraining order (TRO) preventing Kentucky Governor Andy Beshear from enforcing an executive order that both prohibits in-person church services and threatens criminal penalties for those who violate the order.

The motion for the TRO was filed Wednesday in the United States District Court for the Eastern District of Kentucky by First Liberty Institute, WilmerHale, and Bilby Law PLLC on behalf of Tabernacle Baptist Church of Nicholasville.

The judge’s decision allows “mass gatherings with respect to any in-person religious service which adheres to applicable social distancing and hygiene guidelines.”

In response, Roger Byron, Senior Counsel at First Liberty, said, “Judge Van Tatenhove recognized that Governor Beshear’s order unlawfully prohibits religious worship and violates the First Amendment. The church will gather together for worship on Sunday with grateful hearts and observe the CDC’s guidelines to keep everyone safe and well.”

“The state cannot forbid people to assemble in a room for a religious reason but allow them to assemble in a room for a secular reason,” Matthew Martens, partner at WilmerHale, added. “The Governor’s order does just that, and that is a textbook violation of the free exercise of religion.”

The court’s order stated that “the prohibition on religious services presently operating in the Commonwealth is ‘beyond what was reasonably required for the safety of the public.’ 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.”

The judge added, “The Constitution will endure. It would be easy to put it on the shelf in times like this, to be pulled down and dusted off when more convenient. But that is not our tradition. Its enduring quality requires that it be respected even when it is hard.”

The governor’s March 19 order was issued by Kentucky’s Cabinet for Health and Family Services, prohibiting church gatherings on threat of criminal penalty. Since March 22, churches– on fear of criminal prosecution– have not been unable to gather in person in their sanctuary despite their willingness to abide by social distancing guidelines.

On March 25, Governor Beshear issued Executive Order 2020-257, and asserted religious organizations are not “life-sustaining” organizations, except when they function as charities by providing “food, shelter, and social services.”

While restricting churches the governor permits residents to congregate indoors in a variety of other venues including, big box stores like Target and Walmart, grocery stores, laundromats, liquor stores, and others, as long as they were following social distancing guidelines.

“As attacks against churches and churchgoers continue to take place all across our nation during the ‘new normal,’ we believe the work we are doing is vital for our freedoms and the future of our country,” First Liberty says.