DC Circuit Court nominee and current Western District of Kentucky Judge Justin Walker wrote an epic opinion for a Temporary Restraining Order and defense of the First Amendment over the weekend. This defense will likely be in law school text books in the coming years but shows why President Trump made a great choice in Judge Walker for the DC Circuit. Below are excerpts from Temporary Restraining Order but the whole order is worth a read. All footnotes have been removed and all the emphasis is added.
First some background from the order:
On Holy Thursday, an American mayor criminalized the communal celebration of Easter. That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. 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.
Judge Walker goes through the history of the First Amendment; here is an excerpt:
The Pilgrims’ history of fleeing religious persecution was just one of the many “historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause” of our Constitution’s First Amendment.” It provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”
At the time of that Amendment’s ratification, religious liberty was among the American experiment’s most audacious guarantees. For millennia, soldiers had fought and killed to impose their religious doctrine on their neighbors. A century before America’s founding, in Germany alone, religious conflict took the lives of one out of every five men, women, and children. But not so in America. “Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.”
Judge Walker also points out the absurdity of the Mayor’s decision to order arrests of those who went to “drive-in” church:
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. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.” That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”. . .
In other words, Louisville’s actions are “underinclusive” and “overbroad.” They’re underinclusive because they don’t prohibit a host of equally dangerous (or equally harmless) activities that Louisville has permitted on the basis that they are “essential.” Those “essential” activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is “essential,” so is Easter.
On the legal rationale for the TRO permitting people to drive up worship on Easter:
“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Here, that is not difficult. Protecting religious freedom was a vital part of our nation’s founding, and it remains crucial today. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” For Christians, there is nothing minimal about celebrating Easter, the holiest day in the Christian calendar.
Again, if you have a few minutes, read the whole order. Thank you, President Trump, for another great nomination and thank you, Judge Walker, for following the law and standing up for the First Amendment.