Encountering the Upside Down is dangerous enough for the residents of Hawkins, Indiana, on the Netflix show “Stranger Things.” Fearsome creatures control that dimension and present an ongoing threat to our world. But when the upside down becomes not the realm of the fictional beast the “Mind Flayer,” but the province of federal judges deciding matters of life and death during a pandemic, we are all in very real danger.
The judges who have decided recent cases dealing with Kentucky Gov. Andy Beshear’s coronavirus orders have turned both the law and the facts upside down.
The only questions about these rulings from the federal Sixth Circuit Court of Appeals and trial court judges are: How wrong are they, and how many people will die as a result?
I am in no position to answer the second question, being neither a seer nor an epidemiologist. But as to the first, the answer is: These decisions have been egregiously and unforgivably wrong.
On May 2, a panel of the federal Sixth Circuit Court of Appeals ruled that the governor violated both the Free Exercise Clause of the First Amendment and the Kentucky Religious Freedom Restoration Act because he issued an order that banned “mass gatherings.” The order didn’t ban religious mass gatherings in particular. If you attend UofL or UK basketball, it probably caught your attention that those games were not played. If you planned to see some of the Humana Festival of New American Plays at Actors Theater, you know that they were canceled. Same with concerts at the KFC Yum! Center. None of these were religious; all were subject to the governor’s ban on mass gatherings. In short, nothing the governor did singled out religion or religious services. If he had singled out religion, it would no doubt have violated the Constitution.
So if Gov. Beshear treated all mass gatherings alike, then why did the courts find his orders problematic?
Because the judges didn’t focus on the consistency of how his orders treated mass gatherings. Instead, they discussed other activities that the governor’s orders did not ban — such as dog grooming and car washes.
In other words, worship services had to be allowed because people could take their dogs to the groomer and their cars to be washed. This was what passed for serious analysis in the Sixth Circuit’s opinion — as if a person taking her dog to a groomer and going to a car wash are even remotely similar to a religious service in the crucial respect: likelihood of transmitting the coronavirus. It is preposterous to suggest that going to a car wash — in which each person simply sits in their car, isolated and practicing the very model of social distancing — is similar to a church service when it comes to risking transmitting the virus. Thus, there should have been no basis to strike down the governor’s orders for treating religious services differently from car washes and dog grooming.
The reasoning was deeply flawed – and upside down.
Similarly, Judge Gregory Van Tatenhove later issued a ruling compelling the state to allow in-person religious services. His opinion compared such services to grocery shopping. That, at least, presents a closer case: People at the supermarket do come in closer proximity to one another than they do when getting their car washed. But even then, the differences are obvious.
As immunologist and professor of biology Erin Bromage pointed out in a blog post, “The Risks — Know Them — Avoid Them,” for someone to contract the virus they must be exposed to an “infectious dose.” Transmission of COVID-19 is far more likely in situations involving sustained exposure — of exactly the kind that happens if you spend two hours at a church service with someone who has the virus, but would not happen if you pass them briefly in a supermarket aisle. It is better still not to come within close contact in either case and, best of all, not to be in the public space at all. But the point is that being in the same physical space for an extended period presents a clear and scientifically undeniable greater risk of transmission than brief encounters.
Grocery stores and car washes, in other words, are not the same as religious services.
But the federal judges have taken it upon themselves to declare these things which are different to be the same, and — having decided they present the same risk of transmission — condemned Gov. Beshear’s order for treating them differently.
It’s one thing for judges to get things wrong. But when you have the trifecta of misapplying the law, misstating basic facts critical to the outcome and rendering a decision that will inevitably result in people dying, the world really has been turned upside down.
It is no less dangerous for us than it was for the residents of Hawkins. •
Sam Marcosson is a professor at the UofL Brandeis School of Law. The views expressed herein are his alone and do not speak for UofL or the School of Law.