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Ultimately, the Sixth Circuit opted to enjoin enforcement of the orders only as they pertained to drive-in services. Id. at * 15. Maryville Baptist does not decide this case, but it is indicative of what might come. It follows that the prohibition on in-person services should be enjoined as well. The restrictions which the Sixth Circuit criticized as “inexplicably applied to one group and exempted from another” are the same restrictions Tabernacle challenges today. Id. at *11. And, as the Sixth Circuit recognized, “many of the serial exemptions for secular activities pose comparable public health risks to worship services.” Id. at *10. The prohibition on mass gatherings is not narrowly tailored as required by Lukumi. There is ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking. 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.

How does Kentucky’s “emergency” ban on church services, while allowing Home Depot to open, differ from “emergency” bans in other states that also allow Home Depot to open? If this sort of “emergency” ban is unlawful in Kentucky, why would it be lawful elsewhere? And how is this different from an “emergency” ban on gun stores, while allowing Home Depot to open?