                                     RECOMMENDED FOR PUBLICATION
                                     Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                             File Name: 20a0144p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT



 THEODORE JOSEPH ROBERTS, RANDALL DANIEL, and                     ┐
 SALLY O’BOYLE, on behalf of themselves and all                   │
 others similarly situated,                                       │
                                Plaintiffs-Appellants,            │
                                                                  │
                                                                   >        No. 20-5465
            v.                                                    │
                                                                  │
                                                                  │
 ROBERT D. NEACE, in his capacity as Boone County                 │
 Attorney, ANDREW G. BESHEAR, in his official                     │
 capacity as Governor of the Commonwealth of                      │
 Kentucky, ERIC FRIEDLANDER, in his official capacity             │
 as Acting Secretary of the Cabinet for Health and                │
 Family Services,                                                 │
                              Defendants-Appellees.               │
                                                                  ┘

                             Appeal from the United States District Court
                          for the Eastern District of Kentucky at Covington.
                     No. 2:20-cv-00054—William O. Bertelsman, District Judge.

                                     Decided and Filed: May 9, 2020*

                 Before: SUTTON, McKEAGUE, and NALBANDIAN, Circuit Judges.
                                    _________________

                                                 COUNSEL

ON BRIEFS: Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC, Crestview
Hills, Kentucky, for Appellants; Barry L. Dunn, OFFICE OF THE KENTUCKY ATTORNEY
GENERAL, Frankfort, Kentucky for Amicus Curiae in support of Appellants. Jeffrey C. Mando,
ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellee
Neace. S. Travis Mayo, Taylor Payne, OFFICE OF THE GOVERNOR, Frankfort, Kentucky,
Wesley W. Duke, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky,
for Appellees Beshear and Friedlander.

        *
          This decision was originally filed as an unpublished order on May 9, 2020. The court has now designated
the order for publication.
 No. 20-5465                            Roberts v. Neace                                   Page 2


                                       _________________

                                             ORDER
                                       _________________

        PER CURIAM. Three congregants of Maryville Baptist Church wish to attend in-person
worship services this Sunday, May 10. By order of the Kentucky Governor, however, they may
not attend “faith-based” “mass gatherings” through May 20. Claiming that this limitation on
corporate worship violates the free-exercise protections of the First and Fourteenth Amendments
to the United States Constitution, the congregants seek emergency relief barring the Governor
and other officials from enforcing the ban against them.           The Attorney General of the
Commonwealth supports their motion as amicus curiae.            The Governor and other officials
oppose the motion.

        Governor Beshear has issued two pertinent orders arising from the COVID-19 pandemic.
The first order, issued on March 19, prohibits “[a]ll mass gatherings,” “including, but not limited
to, community, civic, public, leisure, faith-based, or sporting events.” R. 1-4 at 1. It excepts
“normal operations at airports, bus and train stations, . . . shopping malls and centers,” and
“typical office environments, factories, or retail or grocery stores where large numbers of people
are present, but maintain appropriate social distancing.” Id.

        The second order, issued on March 25, requires organizations that are not “life-
sustaining” to close.   R. 1-7 at 2.    The order lists 19 broad categories of life-sustaining
organizations and over a hundred sub-categories spanning four pages. Among the many exempt
entities are laundromats, accounting services, law firms, hardware stores, airlines, mining
operations, funeral homes, landscaping businesses, and grocery stores. Religious organizations
do not count as “life-sustaining,” except when they provide “food, shelter, and social services.”
Id. at 3.

        On April 12, Maryville Baptist Church held an Easter service. Some congregants went
into the church. Others parked their cars in the church’s parking lot and listened to the service
over a loudspeaker. Kentucky State Police arrived in the parking lot and issued notices to the
congregants that their attendance, whether in the church or outdoors, amounted to a criminal act.
 No. 20-5465                             Roberts v. Neace                                    Page 3


The officers recorded congregants’ license plate numbers and sent letters to vehicle owners
requiring them to self-quarantine for 14 days or be subject to further sanction.

       Theodore Joseph Roberts, Randall Daniel, and Sally O’Boyle all attended this Easter
service, and they all complied with the State’s social-distancing and hygiene requirements during
it. At some point during the service, the state police placed attendance-is-criminal notices on
their cars. In response, the three congregants sued Governor Beshear, another state official, and
a county official, claiming that the orders and their enforcement actions violate their free-
exercise and interstate-travel rights under the U.S. Constitution.

       The district court denied relief on the free-exercise claim and preliminarily enjoined
Kentucky from enforcing its ban on interstate travel. The congregants appealed. They asked the
district court to grant an injunction pending appeal on the free-exercise claim, but the court
refused. The congregants now seek an injunction pending appeal from our court based on their
free-exercise claim.

       Two other cases, challenging the same ban, have been making their way through the
federal district courts of Kentucky. In contrast to the district court in this case, they both
preliminarily granted relief to the claimants based on the federal free-exercise claim. On May 8,
a district court from the Western District of Kentucky issued an order preliminarily enjoining the
Governor from enforcing the orders’ ban on in-person worship with respect to the same church at
issue in our case. Maryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH-RSE (W.D.
Ky. May 8, 2020). That same day, a district court from the Eastern District of Kentucky reached
the same conclusion in an action involving a different church. Tabernacle Baptist Church, Inc.
of Nicholasville, Kentucky v. Beshear, N. 3:20-cv-00033-GFVT (E.D. Ky. May 8, 2020). In
doing so, it observed that “the constitutionality of these governmental actions will be resolved at
the appellate level, at which point the Sixth Circuit will have the benefit of the careful analysis of
the various district courts, even if we disagree.” Id. at 5.
 No. 20-5465                             Roberts v. Neace                                   Page 4


        This is not our first look at the issues. Last week, we granted relief in the case from the
Western District of Kentucky with respect to drive-in services and urged the district court and
parties to prioritize resolution of the more difficult in-person aspects of the case. Maryville
Baptist Church, Inc. v. Beshear, -- F.3d --, 2020 WL 2111316 (6th Cir. May 2, 2020). We are
grateful for their input. In assessing today’s motion for emergency relief, we incorporate some
of the reasoning (and language) from our earlier decision.

        We have jurisdiction over this appeal. “Interlocutory orders of the district courts of the
United States . . . granting, continuing, modifying, refusing or dissolving injunctions” are
immediately appealable. 28 U.S.C. § 1292(a)(1). Under the circumstances, this order operates
as the denial of an injunction. And no one can fairly doubt that this appeal will “further the
statutory purpose of permit[ting] litigants to effectually challenge interlocutory orders of serious,
perhaps irreparable, consequence.” Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981). At least
four more worship services are scheduled on the Sundays and Wednesdays between today and
May 20, when the Governor has agreed to permit places of worship to reopen. Lost time means
lost rights.

        We ask four questions in evaluating whether to grant a stay pending appeal: Is the
applicant likely to succeed on the merits? Will the applicant be irreparably injured absent a stay?
Will a stay injure the other parties? Does the public interest favor a stay? Nken v. Holder,
556 U.S. 418, 434 (2009).

        Likelihood of success. The Governor’s restriction on in-person worship services likely
“prohibits the free exercise” of “religion” in violation of the First and Fourteenth Amendments.
U.S. Const. amends. I, XIV; Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). On one side of
the line, a generally applicable law that incidentally burdens religious practices usually will be
upheld. See Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 878–79 (1990). On
the other side of the line, a law that discriminates against religious practices usually will be
invalidated because it is the rare law that can be “justified by a compelling interest and is
narrowly tailored to advance that interest.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 553 (1993).
 No. 20-5465                            Roberts v. Neace                                    Page 5


        These orders likely fall on the prohibited side of the line. Faith-based discrimination can
come in many forms. A law might be motivated by animus toward people of faith in general or
one faith in particular. Id. A law might single out religious activity alone for regulation.
Hartmann v. Stone, 68 F.3d 973, 979 (6th Cir. 1995). Or a law might appear to be generally
applicable on the surface but not be so in practice due to exceptions for comparable secular
activities. See Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012); see also Fraternal Order of
Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365–67 (3d Cir. 1999).

        Were the Governor’s orders motivated by animus toward people of faith? We don’t
think so. The initial enforcement of the orders at Maryville Baptist Church no doubt seemed
discriminatory to the congregants. But we don’t think it’s fair at this point and on this record to
say that the orders or their manner of enforcement turned on faith-based animus.

        Do the orders single out faith-based practices for special treatment? We don’t think so.
It’s true that they prohibit “faith-based” mass gatherings by name. R. 1-4 at 1. But this does not
suffice by itself to show that the Governor singled out faith groups for disparate treatment. The
order lists many other group activities, and we accept the Governor’s submission that he needed
to mention worship services by name because there are many of them, they meet regularly, and
their ubiquity poses material risks of contagion.

        Do 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. As a rule of
thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable,
non-discriminatory law. Ward, 667 F.3d at 738. “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 740.

        The Governor insists at the outset that there are “no exceptions.” ROA (20-5427) 13-1 at
25. But that is word play. The orders allow “life-sustaining” operations and don’t include
worship services in the definition. And many of the serial exemptions for secular activities pose
comparable public health risks to worship services. For example: The exception for “life-
 No. 20-5465                            Roberts v. Neace                                   Page 6


sustaining” businesses allows law firms, laundromats, liquor stores, gun shops, airlines, mining
operations, funeral homes, and landscaping businesses to continue to operate so long as they
follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do
not permit soul-sustaining group services of faith organizations, even if the groups adhere to all
the public health guidelines required of the other services.

       Keep in mind that the Church and its congregants just want to be treated equally. They
don’t seek to insulate themselves from the Commonwealth’s general public health guidelines.
They simply wish to incorporate them into their worship services. They are willing to practice
social distancing. They are willing to follow any hygiene requirements. They do not ask to
share a chalice. The Governor has offered no good reason for refusing to trust the congregants
who promise to use care in worship in just the same way it trusts accountants, lawyers, and
laundromat workers to do the same.

       Come to think of it, aren’t the two groups of people often the same people—going to
work on one day and going to worship on another? How can the same person be trusted to
comply with social-distancing and other health guidelines in secular settings but not be trusted to
do the same in religious settings? The distinction defies explanation, or at least the Governor has
not provided one.

       Some groups in some settings, we appreciate, may fail to comply with social-distancing
rules. If so, the Governor is free to enforce the social-distancing rules against them for that
reason and in that setting, whether a worship setting or not. What he can’t do is assume the
worst when people go to worship but assume the best when people go to work or go about the
rest of their daily lives in permitted social settings. We have plenty of company in ruling that at
some point a proliferation of unexplained exceptions turns a generally applicable law into a
discriminatory one. See, e.g., Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 165–70
(3d Cir. 2002); Fraternal Order of Police, 170 F.3d at 365; see also Cent. Rabbinical Cong. of
U.S. & Can. v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 196–98 (2d Cir. 2014).
 No. 20-5465                             Roberts v. Neace                                   Page 7


        We don’t doubt the Governor’s sincerity in trying to do his level best to lessen the spread
of the virus or his authority to protect the Commonwealth’s citizens.             See Jacobson v.
Massachusetts, 197 U.S. 11, 27 (1905). And we agree that no one, whether a person of faith or
not, has a right “to expose the community . . . to communicable disease.”                 Prince v.
Massachusetts, 321 U.S. 158, 166–67 (1944). But restrictions inexplicably applied to one group
and exempted from another do little to further these goals and do much to burden religious
freedom. Assuming all of the same precautions are taken, why can someone safely walk down a
grocery store aisle but not a pew?        And why can someone safely interact with a brave
deliverywoman but not with a stoic minister? The Commonwealth has no good answers. While
the law may take periodic naps during a pandemic, we will not let it sleep through one.

        Nor does it make a difference that faith-based bigotry did not motivate the orders. The
constitutional benchmark is “government neutrality,” not “governmental avoidance of bigotry.”
See Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1260 (10th Cir. 2008). A law is not neutral
and generally applicable unless there is “neutrality between religion and non-religion.”
Hartmann, 68 F.3d at 978. And a law can reveal a lack of neutrality by protecting secular
activities more than comparable religious ones. See id. at 979; Midrash Sephardi, Inc. v. Town
of Surfside, 366 F.3d 1214, 1233–35, 1234 n.16 (11th Cir. 2004); see also Shrum v. City of
Coweta, 449 F.3d 1132, 1145 (10th Cir. 2006) (“[T]he Free Exercise Clause is not confined to
actions based on animus.”).

        All of this requires the orders to satisfy the strictures of strict scrutiny. They cannot. No
one contests that the orders burden sincere faith practices. Faith plainly motivates the worship
services. And no one disputes the Church’s sincerity. Orders prohibiting religious gatherings,
enforced by police officers telling congregants they violated a criminal law and by officers
taking down license plate numbers, will chill worship gatherings.

        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. The Governor has
plenty of reasons to try to limit this contagion, and we have little doubt he is trying to do just
that.
 No. 20-5465                            Roberts v. Neace                                   Page 8


       The question is whether the orders amount to “the least restrictive means” of serving
these laudable goals. That’s a difficult hill to climb, and it was never meant to be anything less.
See Lukumi, 508 U.S. at 546. There are plenty of less restrictive ways to address these public-
health issues. Why not insist that the congregants adhere to social-distancing and other health
requirements and leave it at that—just as the Governor has done for comparable secular
activities? Or perhaps cap the number of congregants coming together at one time? 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. The orders permit
uninterrupted functioning of “typical office environments,” R. 1-4 at 1, which presumably
includes business meetings. How are in-person meetings with social distancing any different
from in-person church services with social distancing? Permitting one but not the other hardly
counts as no-more-than-necessary lawmaking.

       Sure, the Church might use Zoom services or the like, as so many places of worship have
decided to do over the last two months. But who is to say that every member of the congregation
has access to the necessary technology to make that work? Or to say that every member of the
congregation must see it as an adequate substitute for what it means when “two or three gather in
my Name,” Matthew 18:20, or what it means when “not forsaking the assembling of ourselves
together,” Hebrews 10:25; see also On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264-
JRW, 2020 WL 1820249, at *7–8 (W.D. Ky. Apr. 11, 2020).

       As individuals, we have some sympathy for Governor DeWine’s approach—to allow
places of worship in Ohio to hold services but then to admonish all of them (we assume) that it’s
“not Christian” to hold in-person services during a pandemic. Doral Chenoweth III, Video:
Dewine says it’s “not Christian” to hold church during coronavirus, Columbus Dispatch, (Apr.
1, 2020). But the Free Exercise Clause does not protect sympathetic religious practices alone.
And that’s exactly what the federal courts are not to judge—how individuals comply with their
own faith as they see it. Smith, 494 U.S. at 886–87.

       The Governor suggests that the explanation for these groups of people to be in the same
area—intentional worship—creates greater risks of contagion than groups of people, say, in an
office setting or an airport. But the reason a group of people go to one place has nothing to do
 No. 20-5465                           Roberts v. Neace                                   Page 9


with it. Risks of contagion turn on social interaction in close quarters; the virus does not care
why they are there. So long as that is the case, why do the orders permit people who practice
social distancing and good hygiene in one place but not another for similar lengths of time? It’s
not as if law firm office meetings and gatherings at airport terminals always take less time than
worship services. If the problem is numbers, and risks that grow with greater numbers, there is a
straightforward remedy: limit the number of people who can attend a service at one time. All in
all, the Governor did not customize his orders to the least restrictive way of dealing with the
problem at hand.

       Other factors. Preliminary injunctions in constitutional cases often turn on likelihood of
success on the merits, usually making it unnecessary to dwell on the remaining three factors.
City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc)
(per curiam). Just so here. The prohibition on attending any worship service through May 20
assuredly inflicts irreparable harm by prohibiting them from worshiping how they wish. See
Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001). As for harm to others, an injunction
appropriately permits religious services with the same risk-minimizing precautions as similar
secular activities, and permits the Governor to enforce social-distancing rules in both settings.
As for the public interest, treatment of similarly situated entities in comparable ways serves
public health interests at the same time it preserves bedrock free-exercise guarantees. See Bays
v. City of Fairborn, 668 F.3d 814, 825 (6th Cir. 2012).

       In the week since our last ruling, the Governor has not answered our concerns that the
secular activities permitted by the order pose the same public-health risks as the kinds of in-
person worship barred by the order. As before, the Commonwealth remains free to enforce its
orders against all who refuse to comply with social-distancing and other generally applicable
public health imperatives. All this preliminary injunction does is allow people—often the same
people—to seek spiritual relief subject to the same precautions as when they seek employment,
groceries, laundry, firearms, and liquor. It’s not easy to decide what is Caesar’s and what is
God’s in the context of a pandemic that has different phases and afflicts different parts of the
country in different ways. But at this point and in this place, the unexplained breadth of the ban
on religious services, together with its haven for numerous secular exceptions, cannot co-exist
 No. 20-5465                            Roberts v. Neace                                  Page 10


with a society that places religious freedom in a place of honor in the Bill of Rights: the First
Amendment.

       The plaintiffs’ motion for an injunction pending appeal is GRANTED. The Governor
and the other defendants are enjoined, during the pendency of this appeal, from enforcing orders
prohibiting in-person services at the Maryville Baptist Church if the Church, its ministers, and its
congregants adhere to the public health requirements mandated for “life-sustaining” entities.

                                              ENTERED BY ORDER OF THE COURT




                                              Deborah S. Hunt, Clerk
