Tag Archives: #Kentucky

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Rights delayed are rights denied — again!

As I noted in Rights delayed are rights denied, Governor Andy Beshear’s executive order closing all public and private Kindergarten through 12th grade schools had been expeditiously appealed, but the Supreme Court sat on the case. Now, in Danville Christian Academy v Beshear, the Court did just as I guessed it would: it let the case go moot.

On November 18, the Governor of Kentucky issued a temporary school-closing Order that effectively closes K–12 schools for in-person instruction until and through the upcoming holiday break, which starts Friday, December 18, for many Kentucky schools. All schools in Kentucky may reopen after the holiday break, on January 4. . . . .

The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed.

Uhhh, yes, there is! Governor Beshear has already ‘recommended’ that schools delay opening another week, until January 11th, and while he did not make that an order, quite possibly because he knew it would impact the case and it contradicted his own Court filing, he is now free to make it an order.

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

In other words, the Court would entertain a new case, should the Governor issue another executive order, but all of that takes time, and money. With Christmas break about to start, the Governor could easily wait until Saturday, January 2nd, to issue another executive order. Since the Sixth Circuit’s order is the current precedent, a trial judge would have to deny another request for a stay, then it be appealed to the Sixth Circuit, which would almost certainly rule the same way, followed by an application to the Supreme Court, and how many weeks more would the free exercise of religion and freedom of assembly be denied to the people of the Bluegrass State?

In his dissent, Justice Samuel Alito noted that the delay was not the fault of the appellants:

(I)n my judgment, it is unfair to deny relief on this ground since this timing is in no way the applicants’ fault. They filed this action on November 20, 2020, just two days after the issuance of the Governor’s executive order. And when, on November 29, the Sixth Circuit granted a stay of the order that would have allowed classes to resume, the applicants sought relief in this Court just two days later, on December 1. It is hard to see how they could have proceeded more expeditiously.

Justice Neil Gorsuch also dissented:

Nor should a Governor be able to evade judicial review by issuing short-term edicts and then urging us to overlook their problems only because one edict is about to expire while the next has yet to arrive. Come January 4, a new school semester will be about to start, and the Governor has expressly told us that he reserves the right to issue more decrees like these if and when religious schools try to resume holding classes. Rather than telling the parties to renew their fight in a month, asking the Sixth Circuit to resolve the case now, under accurate legal rules, would be better for everyone—from the parents who might have to miss work and stay home should decrees like these be upheld, to the state public health officials who might have to plan for school if they are not.

Courts have a broader equity at stake here too. In their struggle to respond to the current pandemic, executive officials have sometimes treated constitutional rights with suspicion. In Kentucky, state troopers seeking to enforce gubernatorial orders even reprimanded and recorded the license plate numbers of worshippers who attended an Easter church service, some of whom were merely sitting in their cars listening to the service over a loudspeaker.

Recently, this Court made clear it would no longer tolerate such departures from the Constitution. We did so in a case where the challenged edict had arguably expired, explaining that our action remained appropriate given the Governor’s claim that he could revive his unconstitutional decree anytime. That was the proper course there, as I believe it is here. I would not leave in place yet another potentially unconstitutional decree, even for the next few weeks.

For these reasons, I respectfully dissent. I would grant the application, vacate the Sixth Circuit’s stay, and remand the matter for further consideration under the proper legal standards.

As Justice Gorsuch noted, the Court could have vacated the Sixth Circuit’s stay, and then the expiration of the Governor’s order would have been forced to stay expired. If the Governor wanted to close religious schools again, he’d have to go at it differently.

I will admit it: I had higher hopes for Justices Thomas, Kavanaugh and Barrett on this case.

Of course, the vast majority of students in the Commonwealth attend the public schools, over which the Governor indisputably has authority. If the Governor wanted to close down the public schools, he could do so. Since it was only the religious private schools seeking relief, the Governor’s order would also apply to secular private schools.

As I wrote previously, I do not trust Governor Beshear: with the Supreme Court having dismissed Danville Christian Academy’s case as moot, I have very little doubt that Mr Beshear will once again enact executive orders restricting religious private schools. He has already indicated, as noted above, that he believes the schools should stay closed yet another week, and he could issue an order to that effect without any fear that the Supreme Court would invalidate it, because of the time factor.

I am hoping that the General Assembly, which will begin the next session in January with Republicans holding veto-proof majorities in both chambers, will amend KRS 39A to greatly limit the Governor’s ’emergency powers’ in a way which will both protect all of our constitutional rights from such orders and limit what executive authority he has to issue such orders to a brief time, requiring consent from the legislature for any extensions.
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Cross-posted on RedState.

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Some good news from the Supreme Court on Freedom of Religion But we still need more

I have frequently harped on written about Governor Andy Beshear’s (D-KY) attack on religious freedom by closing down private religiously affiliated schools, and noted that the Supreme Court has still not acted upon Danville Christian Academy’s appeal of the Sixth Circuit Court of Appeals upholding the Governor’s orders.

Danville Christian Academy’s case is facially different, because the Governor’s orders close down all schools, public and private, and are thus not treating the private or religious schools differently from the public ones, and that may be why the Supreme Court has not issued an injunction based on Catholic Diocese of Brooklyn v Cuomo.

However, there is some good news from the Court today, as documented by Amy Howe in SCOTUSblog:

Justices revive religious groups’ attempts to block COVID-related restrictions in Colorado, New Jersey

by Amy Howe | Tuesday, December 15, 2020 | 3:21 PM EST

The Supreme Court on Tuesday tossed out a pair of lower-court rulings that had permitted states to enforce COVID-related restrictions at worship services. The two brief orders from the justices instruct the lower courts to take another look at religious groups’ challenges to restrictions in Colorado and New Jersey – and this time, the justices indicated, the lower courts should decide the challenges in light of the Supreme Court’s Nov. 25 ruling that lifted New York’s COVID-related limits on attendance at worship services.

Tuesday’s orders are further evidence of the broader impact of the New York ruling, which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic.

In the Colorado case, the justices threw out an Aug. 10 order by a federal district court that denied a request by High Plains Harvest Church, a small church in northern Colorado, to bar the state from enforcing capacity limits. Justice Elena Kagan dissented from Tuesday’s order, penning a brief opinion – joined by Justices Stephen Breyer and Sonia Sotomayor – in which she argued that the case was moot because Colorado has already lifted the limits at issue.

There’s much more detail at the original, but one thing is becoming increasingly clear: thanks to the replacement of Associate Justice Ruth Bader Ginsburg with Amy Coney Barrett, there is now a Supreme Court majority which strongly believes in freedom of religion, at least as far as activity in church is concerned. There may be less of that strong belief when it comes to religious schools.

Thanks to Amy Coney Barrett replacing Ruth Bader Ginsburg, we now have a Supreme Court majority that actually believe in the Freedom of Religion.

As an update to my article noting that the Court’s inaction on the Danville Christian Academy case, while Governor Beshaer’s response included the claim that his order was “a time-limited executive order that is set to expire in just four weeks,” January 4th, he has now “recommended” that in-person classes not be resumed until January 11th. With the case about to go moot — the Christmas holidays will be beginning in less than a week, and regularly scheduled classes wouldn’t resume until January 4th anyway — the Governor has not yet made it an executive order, so, presumably, it would not change his filing in the case.

But I do not trust Governor Beshear: if the Supreme Court dismissed Danville Christian Academy’s case as moot, I have very little doubt that Mr Beshear would once again enact executive orders restricting religious private schools. I am hoping that the General Assembly, which will begin the next session in January with Republicans holding veto-proof majorities in both chambers, will amend KRS 39A to greatly limit the Governor’s ’emergency powers’ in a way which will both protect all of our constitutional rights from such orders and limit what executive authority he has to issue such orders to a brief time, requiring consent from the legislature for any extensions.

That is what the Republican leadership have promised. However, a Supreme Court decision that religious schools are also protected under the First Amendment would provide relief for religious schools across the nation, where action by the General Assembly would protect only Kentuckians.
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Cross-posted on RedState.

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More COVID-19 idiocy by Andy Beshear

Setting aside, for the moment, my many criticisms of Governor Andy Beshear’s (D-KY) executive orders on COVID-19, and using the Governor’s own reasoning that they are somehow so necessary that they supersede our Constitutional rights, just how does this make sense?

Beshear to KY superintendents: Prepare rosters of teachers willing to get vaccines.

By Valarie Honeycutt Spears | December 4, 2020 | 06:47 PM EST | Updated: 07:27 PM EST

Gov. Andy Beshear on Friday asked Kentucky’s superintendents to begin preparing rosters of school personnel who are willing to receive a COVID-19 vaccine, according to the state Education Department.

While Beshear is unsure when educators will begin receiving the vaccine, he asked superintendents to plan for the distribution of COVID-19 vaccines to the state’s education community.

Although the vaccines are distributed at the federal level, states direct where they need to go.

Beshear expects the Pfizer two-dose vaccine to become available by Dec. 15 and anticipates Kentucky receiving 38,000 doses in the first round of distribution. The initial doses will go to healthcare providers and nursing home residents and staff, but there won’t be enough to vaccinate all of them, according to the state.

Full disclosure: my wife is a registered nurse working in a hospital, and has had to take care of COVID patients. She is already scheduled for the first dose of the Pfizer vaccine in a couple of weeks.

Two weeks later, the state will receive the shipment of the Moderna vaccinations, which is twice as many as the first Pfizer delivery, Beshear said. After healthcare providers and residents and staff at long-term care facilities, Kentucky will prioritize emergency medical service workers and educators.

“That recognizes the exposure (to the virus) that educators have within the building,” Beshear said. “But it also recognizes the absolute, critical importance of what they do and how much better in-person classes are.”

Since the goal is to make schools as safe as possible, Beshear said all school staff who are willing to be vaccinated should be included on the rosters. Since it is unlikely that one shipment of vaccines will cover everyone within a school, districts should consider prioritizing those more likely to be exposured to the virus, Beshear said.

Why would we be prioritizing teachers, when the schools are closed? It would make more sense to prioritize people who work at Kroger!

One point hardly ever mentioned: testing the vaccines on children is just now beginning testing on children, and no vaccine has yet been approved for kids. One immunized teacher in a classroom full of unvaccinated children does virtually nothing to slow the spread of the virus, so Governor Beshear will still try to keep the schools closed.

The clinical trials conducted this year tested the vaccine’s safety and efficacy in adults, and researchers will need to conduct additional studies on how the vaccine affects younger children.

Researchers will need to examine the dosages, interval between doses, and the number of doses that work best in children.

This process could take several months, according to pediatric infectious disease experts. Kids might not see a vaccine until the summer or fall of 2021.

Translation: Using the Governor’s logic, it might not be safe to open the schools next fall!

Kentucky has the dubious honor of leading the nation in the percentage of children being reared by their grandparents rather than their parents, and the elderly are more susceptible to the virus, and more likely to become seriously ill or die from the virus than those who are younger. Thus, with unvaccinated children, if Governor Beshear allows the schools to reopen, you’ll see another surge in infections, and deaths, and if he doesn’t allow the schools to reopen, then there’s no need to prioritize teachers.

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Fighting to the end * Updated! * The end has come Kentucky coffeeshop owner defies Andy Beshear's executive orders

I have previously noted the defiance of Andrew Cooperrider to the draconian orders of Governor Andy Beshear (D-KY) closing down all inside commercial dining for three weeks. The Lexington/Fayette County Health Department went to court to try to force Mr Cooperrider to close his coffee shop, after Mr Cooperrider refused to close his shop despite Health Department orders. The Health Department requested that the Lexington Police Department be allowed to enforce their orders.

Judge’s order to close hasn’t stopped a defiant Lexington coffee shop yet. Here’s why

By Jeremy Chisenhall | December 2, 2020 | 12:15 PM EST | Updated: 1:20 PM EST

The battle between a defiant Lexington coffee shop and the Lexington health department continued on Wednesday as the shop continued to serve — and got business from Lexington police officers in uniform.

Brewed, a coffee shop that opened in Lexington during the pandemic, defied Gov. Andy Beshear’s executive order to shut down indoor dining at restaurants and bars. Beshear said the order was issued in an effort to slow the spread of COVID-19 in Kentucky.

Brewed was ordered to close by a Fayette circuit judge Tuesday after a several-day battle of ignored closure orders from the Lexington-Fayette County Health Department and a lawsuit seeking an injunction.

But the judge’s order didn’t take effect until the health department paid a $5,000 bond. Once the bond has been paid, Brewed has to be served with the order. So Brewed wasn’t violating the judge’s order yet when it opened for business Wednesday morning.

Some snitched called the Lexington Police on Brewed, but the LPD, after discussions with the Health Department, determined that it was a civil rather than criminal manner, and could not take action. Mr Cooperrider responded by offering ‘first responders’ a 50% discount, and, according to WKYT-TV:

Judge (Thomas) Travis did not make a decision on whether or not police needed to enforce his ruling, and already Wednesday morning we’ve seen two uniformed Lexington Police officers get their coffee at Brewed, as well as a Fayette County Public Schools officer.

Of course, while the rank and file might support Mr Cooperrider’s right to remain open, the bosses might just be viewing that poorly:

“Lexington police expects all personnel to be aware of their actions, particularly while in uniform, and how those actions reflect on the department as a whole,” (LPD spokeswoman Brenna Angel) said. “Reports have been made that two officers were seen patronizing Brewed Wednesday morning. We will address this report with any officers involved.”

While I’d like to read a report stating that all 633 sworn officers and 150 civilian personnel went to patronize Brewed, I’m sure that won’t happen. Fayette County is one of only two counties carried by Joe Biden in the election, but he did so by a wide margin, 90,600 (59.25%) to 58,860 (38.50%), and the county voted 73,397 (65.51%) to 36,915 (32.95%) for Mr Beshear in the 2019 gubernatorial race, so one might guess that a significant number of LPD officers are Democrats. 🙁

It’s difficult to see how Mr Cooperrider wins this in the end, but he’s still alive and still fighting.
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Update: December 3, 2020:

Sadly, the end of Mr Cooperrider’s defiance has come. The Lexington Herald-Leader reported that “A Lexington coffee shop that has repeatedly and publicly defied health department instructions related to COVID-19 restrictions will now follow a judge’s order to cease food and beverage services.”

I did say that it would be difficult to see how Mr Cooperrider could win in the end.
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Cross-posted on RedState.

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Andy Beshear continues to try to restrict Freedom of Religion * Updated! * Sadly, he is succeeding

As we previously noted, federal Judge Gregory van Tatenhove ruled, in Danville Christian Academy v Beshear, that Governor Andy Beshear’s (D-KY) executive order closing all Kindergarten through grade 12 schools in the Commonwealth cannot be applied to private religious schools.[1]The Catholic bishops in Kentucky were not part of that lawsuit, and have decided to go along with the Governor’s order. The parochial schools had opened on time this year, ignoring Mr … Continue reading

But Governor Beshear, in his determination that his Führerbefehle not be denied, has done what he said he would do, and appealed the decision to the Sixth Circuit Court of Appeals:

Lexington Christian Academy plans to open Monday. Beshear appeals judge’s ruling.

By Valarie Honeycutt Spears and Jack Brammer | November 27, 2020 | 4:37 PM EST | Updated: November 28, 2020 | 12:06 AM EST

Lexington Christian Academy will open on Monday as a result of a federal court ruling allowing in-person instruction at Kentucky faith-based schools despite an order to close from Gov. Andy Beshear.

But Beshear is fighting to keep the Lexington school and others in the state closed to keep COVID-19 from spreading.

The Democratic governor has filed an emergency 45-page appeal with U.S. Court of Appeals for the Sixth Circuit in Cincinnati of U.S. District Judge Gregory Van Tatenhove’s decision Wednesday to grant a preliminary injunction to 17 private Christian schools that had filed against a lawsuit against Beshear’s restriction to curb the coronavirus pandemic.

In addition to that, several other religious schools that filed another federal lawsuit against the Governor, filing an amicus on behalf of the schools that initially sued Mr Beshear. That suit is also attempting to overturn the Governor’s order restricting indoor gatherings to no more than eight people, from two different households. I am happy to inform you that while our Thanksgiving dinner did have fewer than eight people, the two household limit was exceeded. No Governor, no President, no one at all has any authority to say that I cannot associate with whomever I choose, in whatever numbers we decide.

The Herald-Leader story stated that the responses to the Governor’s appeal must have been filed by 10:00 AM EST.

Churches have won in part and lost in part in their challenges to the Governor’s orders at the Sixth Circuit. Facially, unlike the recent Supreme Court decision in Roman Catholic Diocese of Brooklyn v Cuomo, the Governor is not treating private or religious schools any differently than public schools; he ordered them all to close. Due to this, it is quite possible that Governor Beshear will win his appeal. The Sixth Circuit, in partially rejecting the Governor’s orders last May, did not go as far as the appellants had requested, to allow in-person church services rather than drive-in only services, saying:

The breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom. But it’s not always easy to decide what is Caesar’s and what is God’s — and that’s assuredly true in the context of a pandemic.

However, it should be noted that the Governor’s great concern for K-12 students isn’t quite as extensive as it appears. On Friday night, the state high school football playoffs continued. If you are an offensive guard, you will have a defensive lineman lined up across from you, his face and yours, both unmasked, just inches apart. When the ball is snapped, you will get really up close and personal, exerting yourselves, exhaling through your mouth. Social distancing is not a part of football.

If you are a quarterback or running back or receiver, the defense will be doing everything it can to hit you, to get right up into your face, to break up the blocking or tackle the runner.

If it is so very, very vital that physical contact be limited, face masks be worn, and social distancing be observed, to reduce the spread of COVID-19, why would Mr Beshear have allowed the playoffs to continue? Apparently the Governor’s concerns about the spread of the virus do not go so far as to cancel football.

Pre-kindergarten instruction has been allowed to continue, even though children that young cannot be anywhere close to as responsible as older ones to observe COVID-19 restrictions. And the state’s colleges and universities have been allowed to remain open, despite most students living away from home and parental guidance. I have previously noted, the ‘authorities’ have been very, very surprised that college students returning to college campuses have had college parties. 🙂

I would not speculate on how the Sixth Circuit might rule, but I hope that they will rule for the free exercise of religion and the right of the people peacefully to assemble.
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Updated: Sunday, November 29, 2020 | 10:30 AM EST

Sadly, the Sixth Circuit Court of Appeals agreed with Governor Beshear:

Federal appellate court agrees with Beshear’s order to close all Kentucky schools

By Jack Brammer and Valarie Honeycutt Spears | November 29, 2020 | 10:14 AM EST

Kentucky Gov. Andy Beshear was successful Sunday in getting a federal appellate court to side with him in his order to close religious schools and others in the state during a surge in the coronavirus pandemic.

The 6th Circuit Court of Appeals in Cincinnati granted the Democratic governor’s request to shelve temporarily a judge’s ruling that would have allowed 17 private Christian schools to reopen. Those schools filed a lawsuit over Beshear’s restrictions and won a preliminary injunction Wednesday from U.S. District Judge Gregory Van Tatenhove. . . . .

But the three-member appellate court said Sunday that Van Tatenholve’s preliminary injunction should not have been entered because the schools are unlikely to succeed.

The appellate court said it is likely to rule that Beshear’s order was “neutral and of general applicability” in that all schools were affected.

Given that the Supreme Court’s ruling in Roman Catholic Diocese of Brooklyn v Cuomo was largely based on the disparate and harsher treatment of churches, there was room for the Sixth Circuit to rule as it did. This might be appealed to the Supreme Court, but with an appellate court ruling that the treatment of religious schools was no different than the treatment of secular ones, the Court would have to decide the case on the constitutional grounds of a restriction on the free exercise of religion and the right of peaceable assembly. Justice Brett Kavanaugh’s concurring opinion was heavily based on the disparate treatment of churches, not freedom of religion, so his vote could be lost. Justice Samuel Alito’s recent statements indicate that he would vote in favor of a constitutional argument, but this is a case in which freedom of religion and assembly could lose to the statists.
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Cross-posted on RedState.

References

References
↑1 The Catholic bishops in Kentucky were not part of that lawsuit, and have decided to go along with the Governor’s order. The parochial schools had opened on time this year, ignoring Mr Beshear’s request that in-person instruction in schools be delayed until September 28th. The bishops had earlier declined the Governor’s request — not order — that churches close down for three weeks.
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The weight of the state is about to fall on Andrew Cooperrider

We have previously noted the defiance of Andrew Cooperrider to Governor Andy Beshear’s (D-KY) executive order closing all indoor dining. The initial Lexington Herald-Leader article noted that someone called the cops, but the Lexington Police Department was having nothing to do with the situation, Brenna Angel, the LPD spokeswoman, said:

The police department was contacted regarding the situation between Brewed and the Health Department, however, this involved a civil/regulatory matter and not something police could take action on.

Well, the officious little pricks at the Lexington-Fayette County Health Department aren’t going to put up with that!

Lexington health department sues coffee shop for not following Beshear’s orders

By Jeremy Chisenhall | November 27, 2020 | 3:26 PM EST

The Lexington-Fayette County Health Department has filed a lawsuit against the owner of Brewed, a coffee shop that refused to follow Gov. Andy Beshear’s order to stop indoor dining.

The lawsuit calls for a temporary injunction or a temporary restraining order to force the coffee shop to close its indoor dining and drinking options.

Brewed was ordered to shut down Tuesday after health department inspectors found customers dining inside. The shop also allowed patrons to violate the mask mandate, according to the health department. Owner Andrew Cooperrider repeatedly refused to comply.

Several paragraphs further down comes the reasoning:

In its motion for an injunction, the Lexington health department asked a judge to rule that police can enforce the terms of the order, according to court records. Police were called to the shop when Cooperrider refused to close Tuesday, but the issue was considered a civil or regulatory matter, and it wasn’t something the police could take action on.

The case is scheduled for a court hearing Monday, according to court records. Fayette Circuit Judge Thomas Travis will hear the case, according to court records.

Governor Beshear delegated to the state and local health departments the authority to enforce his executive orders. I cannot read his mind, but I suspect it has something to do with a probably well-founded belief that the Commonwealth’s 120 elected county sheriffs would have exactly zero interest in enforcing such dictates.

But, with men with guns and the power to arrest someone out of the picture, men like Mr Cooperrider could successfully resist the orders. Now, the health department is turning to the men with guns.

Most law enforcement in the Commonwealth, from county sheriffs to the small town police departments, would resist such, but Lexington is the commonwealth’s second largest city, and though not wildly left wing like Portland or Philadelphia, is nevertheless run by Democrats; if Judge Travis rules against Mr Cooperrider, the LPD will enforce the ruling.

I did say that this might not work out well for him.

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Things for which I am thankful

I am thankful for the First Amendment to the Constitution, which protects my rights to say what I want and publish what I want. I am thankful for our First Amendment protection of our right to freely practice our faith. And I am thankful for Federal Judge Gregory van Tatenhove, appointed by the younger President George Bush, who understands that the First Amendment actually means what it says.

On May 8, 2020, Judge van Tatenhove ruled that Governor Andy Beshear’s executive order closing churches due to concerns about spreading COVID-19 was unconstitutional, a ruling which came too late in the process, as the Governor had successfully closed the churches for eight weeks.

Well, this time he wasn’t late. From the Lexington Herald-Leader:

Judge rules Beshear cannot halt in-person classes at religious schools due to COVID-19

By Jack Brammer and Valarie Honeycutt Spears | November 25, 2020 | 8:01 PM EST

Kentucky Gov. Andy Beshear cannot close religious schools to help curb the coronavirus pandemic, a federal judge ruled Wednesday night.

U.S. District Judge Gregory Van Tatenhove said in a 22-page order that he was granting a preliminary injunction to 17 private Christian schools that had filed a lawsuit against Beshear’s emergency restriction. He said his order would apply statewide.

He said the schools were “likely to succeed on the merits of the case.”

Kentucky Attorney General Daniel Cameron joined the plaintiffs in the suit against Beshear and Kentucky Treasurer Allison Ball filed an amicus brief supporting the suit.

Beshear spokeswoman Crystal Staley said in an email the governor has appealed the decision to the U.S. 6th Circuit Court of Appeals.

Well, of course he has!

There’s a lot more at the link, including not only the Governor’s protest of the decision, but the comments of the schools, and First Liberty Institute‘s Chris Freund, the firm which represented the Christian schools.

“We are disappointed but not surprised that Judge Van Tatenhove, for the second time, has refused to acknowledge the U.S. Supreme Court decision that found an action like this is both legal and constitutional,” said Staley.

“We have already appealed to the Sixth Circuit and will request an emergency stay of the judge’s order, and, if necessary, will appeal to the U.S. Supreme Court. Let’s be clear: lives are on the line and everyone must do their part to defeat the virus.”

Judge van Tatenhove noted that the Governor’s order closed all K-12 schools, even though it allowed colleges in the Commonwealth to remain open. The suing schools noted that they had spent considerable sums in reconfiguring classes and providing safety equipment to meet the PPE and social distancing requirements the Commonwealth has specified for other places to continue to meet and do business.

“The Governor has every right to impose some restrictions on all schools, religious and secular alike,” said Van Tatenhove. “Social distancing, face masks, limits on class size, reporting requirements and other protocols may cost money and may be inconvenient for parents and students, but we give executives increased discretion in time of crisis.

“But in an effort to do the right thing to fight the virus, the Governor cannot do the wrong thing by infringing protected values.”

That is the part that so many public officials have forgotten. Nothing in American law supersedes the Constitution, and our constitutionally protected rights.

I am thankful that I was born an American citizen, that we have a strict Constitution which recognizes our rights, not just as Americans, but as human beings. Citizens of other countries mostly do not have such protections.

And I am thankful for our Freedom of Peaceable Assembly, which allows my family to gather for this Thanksgiving Day, in a setting which will violate the Governor’s orders.
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Cross-posted on RedState.

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An act of desperation and defiance It may not work out well for him

When the state has the authority to require you to have a license to do business, and to inspect your premises, you become subservient to the state. I suppose that the only truly libertarian businesses are bootleggers and drug dealers.

When Governor Andy Beshear (D-KY) ordered all commercial inside dining suspended for three weeks, Andrew Cooperrider of Lexington was at the end of his rope, and refused to comply, so naturally the government had to stomp down on him. From the Lexington Herald-Leader:

Lexington coffee shop ordered closed by health department, refuses to stop serving

By Janet Patton | November 24, 2020 | 3:36 PM EST | Updated 4:23 PM EST

The notice from the Lexington-Fayette County Health Department. Photo from Brewed’s Facebook page.

The Lexington health department on Tuesday ordered a Lexington coffee shop to close after the owner refused to halt dining inside, defying statewide COVID restrictions.Last week, Gov. Andy Beshear announced new restrictions on restaurants and bars as well as other steps designed to stem the surge in coronavirus cases in Kentucky, saying that the state’s health care system is in danger of being overrun.

Restaurants were ordered to close dining rooms for three weeks, but outside seating in an approved tent was allowed to continue. However the tent must have no more than 50 percent of the perimeter enclosed to qualify.

Brewed at 124 Malabu Dr. was ordered closed and the establishment’s food service permit was suspended but owner Andrew Cooperrider said he plans on operating normally.

Cooperrider said that they were operating with a garage door opened 6 to 12 inches but the inspector said that would not meet the state emergency order requirements for a heated patio.

If you visit Brewed’s Facebook page, you can see plenty of comments. A commenter calling himself Phil Hunt wrote:

You think you are big Patriot….nope you’re just a selfish moron.

With ‘patriots’ like Mr Hunt, our national anthem would still be God Save the Queen.

People who believe that Governor Beshear’s ‘order’ is warranted and ought to be obeyed certainly have the option of not patronizing Mr Cooperrider’s restaurant.

The inspector cited the restaurant for having customers with no masks on and said they had to close. A supervisor called to the scene agreed.

“While on site for a routine health inspection at the establishment, we observed that the establishment was continuing to allow in-person dining,” according to a statement by Kevin Hall, Lexington-Fayette County Health Department spokesman. “The establishment manager was served an enforcement notice requiring that in-person seating be discontinued, which was refused. We then served an enforcement notice to suspend their food permit for not following the executive order guidance.”

“While on site for a routine health inspection”? What, I have to ask, are the probabilities that the Health Department inspectors just happened to be there, out of thousands of restaurants in Lexington? Not as probable, I would guess, than some Gladys Kravitz snitched on the place.

This is Mr Cooperrider’s problem: restaurants are required, by law, to have food service permits. These are issued to insure that the facility keeps its service and preparation areas clean and free of insects, is using safe preparation methods and safe ingredients. In this particular instance, the food service permit requirement has nothing to do with any of that, but is being used as a cudgel to enforce the Governor’s political policies.

Mr Cooperrider stated on his Facebook page that the Health Department inspectors would not answer his question as to what would happen to him if he refused to close, and stated that, until he was hauled out in handcuffs, he would continue to open for business.

Someone called the cops; the Herald-Leader article does not say who did that. But the Lexington Police Department was having nothing to do with the situation, Brenna Angel, the LPD spokeswoman, said:

The police department was contacted regarding the situation between Brewed and the Health Department, however, this involved a civil/regulatory matter and not something police could take action on.

Good for them! But I wonder: will Governor Beshear, who had the State Police record license numbers of cars in church parking lots on Easter Sunday, Easter Sunday!, to order churchgoers who violated his church closure orders, something the federal courts later enjoined, into two weeks of self-quarantine, send the apparently-more-compliant state troopers to haul Mr Cooperrider off in handcuffs?

Mr Cooperrider said:

I would like the end result to be that we stop having arbitrariness to it. … Put us in a position where we can succeed. Back in January I was a millionaire. Now I’m on food stamps.

I understand about us dying but I care about us living.

Mr Cooperrider’s restaurant is not the only one in the Bluegrass State which has defied the Governor’s orders, but being in the Commonwealth’s second largest city, one governed by Democrats, has put more of a bullseye on his back. I fear that his act of civil disobedience, one which I fully support, will not end well for him. I do not live in Lexington, and get there only infrequently, but the next time I do go there — other than for Thanksgiving, at my daughter’s house, when his restaurant will be closed — I will stop by and buy some coffee.

If it’s still open, that is. At least right now, it is; at 10:23 AM I called the phone number listed on Brewed’s Facebook page, and the call was answered, and the gentleman on the other end said that yes, they were still open.
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Updated: 3:15 PM EST

Good news! Lexingtonians who believe in liberty have stood up for Mr Cooperrider!

Customers line up at Lexington coffee shop defying COVID orders

By Janet Patton and Jeremy Chisenhall | November 25, 2020 | 12:30 PM | Updated 2:44 PM EST

Despite being ordered to close on Tuesday for violating COVID restrictions, a Lexington coffee shop opened its doors to dozens of customers on Wednesday morning.

At times, the line at Brewed at 124 Malabu Drive stretched out the door, with at least one customer waiting an hour for coffee.

Brewed was ordered to close by the Lexington-Fayette County Health Department after owner Andrew Cooperrider said he would not stop serving indoors.

Cooperrider, who is an official in the Libertarian Party of Kentucky according to his Facebook page, refused to comply with an emergency order issued last week by Gov. Andy Beshear to close restaurant dining rooms and bars.

Customers, including some not wearing masks, crowded into the coffee shop on Wednesday morning.

Further down:

Beshear said Tuesday that the vast majority of restaurants and bars across Kentucky are complying with the emergency order. But at least a handful of other restaurants around the state have announced intentions to defy the order.

He said that those that do not comply could lose alcohol licenses. They also could face fines up to $100 from the health department.

That’s a problem for Mr Cooperrider, since he does have beer at his place, but for restaurants without liquor licenses, a $100 fine is probably meaningless if they can stay in business.
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Cross-posted on RedState.

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Once again, Kentuckians have to go to the federal courts to protect their constitutional rights

As we have previously noted, the Kentucky state Supreme Court sided with Governor Andy Beshear (D-KY) and agreed that he did have the authority to declare a state of emergency and issue his COVID-19 executive orders. The General Assembly, in which Republicans will have veto-proof margins in the coming session, appears to be ready to limit the Governor’s authority under Kentucky Revised Statutes section 39A, but such action cannot occur before January.

But if the state courts are now foreclosed to challenging the Governor’s actions, the federal courts are not, and two federal judges, in separate cases, granted injunctions prohibiting the Governor from “enforcing the prohibition on mass gatherings with respect to any in-person religious service which adheres to applicable social distancing and hygiene guidelines.” A three-judge panel of the Sixth Circuit Court of Appeals issued a similar ruling.

The rulings came just two weeks before the Governor was going to graciously allow churches to reopen anyway.

But the Governor has now issued new executive orders:

  • All public and private K-12 schools will close to in-person instruction starting November 23, through the end of the semester. The only exception is for elementary schools in counties outside the red zone, which may reopen on December 7 if the school follows all guidelines.

Beginning on November 20 and lasting until December 13:

  • All restaurants and bars will close to indoor dining services. Outdoor dining is still allowed, with some limitations.
  • Gyms are limited to 33% capacity, and no group classes or indoor games are allowed. Masks are required.
  • Indoor gatherings should be limited to two families, not exceeding a total of eight people.
  • Attendance at wedding and funerals is limited to 25 people.

So it’s back to the federal courts. From the Lexington Herald-leader:

4 Lexington Christian schools, 5 others in Ky. back lawsuit against Beshear closings

By Valerie Honeycutt Spears | November 23, 2020 | 07:11 AM EST | Updated: 10:27 AM EST

Nine Kentucky Christian schools, including Lexington Christian Academy and three others in Fayette County, filed a brief Sunday night in support of a federal lawsuit against Gov. Andy Beshear‘s order stopping in-person instruction at public and private K-12 schools.

“No evidence whatsoever has linked any current increase in COVID cases to numbers in schools,” said the brief filed in U.S. District Court in Frankfort. Amicus briefs, as they are called, are often filed by those affected by court cases to which they are not parties.

“Because the religious schools believe both in the importance of their mission and the need for in-person instruction to the greatest extent possible, each of the religious schools has taken extraordinary steps and incurred significant financial expense to provide safe in-person learning during this academic year, “ the brief said.

Nevertheless, Beshear added new COVID-19 restrictions last week after the Kentucky Supreme Court ruled earlier this month that he can to protect the health and safety of Kentucky citizens.

Despite that ruling, Danville Christian Academy and Kentucky Attorney General Daniel Cameron on Friday filed a federal lawsuit against Beshear, arguing that his order closing Kentucky’s schools, including private religious schools, violates the First Amendment of the Constitution and the state’s Religious Freedom and Restoration Act.

There’s more at the original.

Given Mr Beshear’s penchant for filing lawsuits to try to frustrate Governor Matt Bevin (R-KY) when Mr Beshear was state Attorney General, there’s some delicious schadenfreude that a Republican Attorney General is paying the Governor back in kind.

The obvious question is: how long will it take for these lawsuits to be resolved? Unless the court issues a temporary injunction, something the lawsuit included in its filing, a lawsuit of this nature could easily extend beyond the January 4, 2021 date at which the school closure expires. However, it is also possible that the Governor will extend the order if he believes that COVID-19 is still to rampant.

The sad thing is that Governor Beshear, who was just so eager to protect what he saw as Kentuckians’ rights when he was Attorney General has lost all sight of our rights with his COVID-19 orders. An even sadder thing is that people now have to go to court in the hope of protecting their rights, because our elected representatives sure won’t do it.