United States Court of Appeals For The Sixth Circuit: CASE NO. No. 20-5465

Case: 20-5465 Document: 44 Filed: 08/11/2020 Page: 1
CASE NO. No. 20-5465
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,
No. 20-5465
Plaintiffs-Appellants,
KISHA ROBERTS; BRIANNA ROBERTS
Plaintiffs ,
On Appeal from the United
v. States District Court for the
Eastern District of Kentucky
HONORABLE ROBERT D. NEACE, et al., Case No. 2:20-cv-00054
Defendants-Appellees. Hon. William O. Bertelsman
PLAINTIFFS/APPELLANTS’ THEODORE J. ROBERTS, RANDALL

DANIEL, AND SALLY O’BOYLE REPLY BRIEF
Christopher Wiest (KBA 90725) Thomas B. Bruns (KBA #84985)

25 Town Center Blvd, STE 104 4750 Ashwood Drive, Suite 200
Crestview Hills, KY 41017 Cincinnati, Ohio 45241
513-257-1895 513-312-9890
chris@cwiestlaw.com tbruns@bcvalaw.com
Robert A. Winter, Jr. (KBA #78230)

P.O. Box 175883
Fort Mitchell, KY 41017-5883
(859) 250-3337
robertawinterjr@gmail.com
Attorneys for Plaintiffs/Appellants Theodore Joseph Roberts, Randall Daniel, and

Sally O’Boyle
TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................... ii
TABLE OF AUTHORITIES ................................................................................ iii
ARGUMENT ............................................................................................................1
I. The case is not moot due to the changed orders, or an exception applies ….1
A. Plaintiffs actually violated the mass gathering ban, subjected
themselves to criminal prosecution, and received a threat of that criminal
prosecution; as such, as to the in-person corporate worship ban, the claims
related to that ban are not moot, at least insofar as an injunction prohibiting
their criminal prosecution is concerned ……………………………….….... 1
B. The voluntary cessation doctrine applies............................................. 2
C. This case presents a classic case of capable of repetition yet evading
review………………………………………………………………………..5
II. The District Court erred in failing to grant the preliminary injunction ......6
A. Preliminary injunction standard……………………….…………...... 6
B. The “deferential” line of cases are patently incorrect when dealing
with fundamental rights; rather the analytical line of analysis should be
followed when dealing with fundamental rights……………..……………..6
C. The Challenged Order is not a order of neutral and general
applicability………………………………………………………………. 14
III. The Due Process Claim was raised, preserved, and entitled Appellants
to relief................................................................................................................... 24
IV. Boone County Attorney Neace is a proper party………………...…..... 25
CONCLUSION………………………………………………..…………………28
CERTIFICATE OF SERVICE ............................................................................30
ii
TABLE OF AUTHORITIES
Cases:
Already, LLC v. Nike, Inc., 568 U.S. 85 (2013)…………………………………... 2
Ashland, Inc. v. Oppenheimer & Co., 648 F.3d 461 (6th Cir. 2011)….......... 19, 23
Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979).................... 26
Berean Baptist Church v. Cooper, 2020 U.S. Dist. LEXIS 86310

(NCED 2020)………………………………………………………….………... 10
Billboard Co. v. City of Cincinnati, 675 F.3d 974 (6th Cir. 2012)……………..... 4
Bowman v. Schwarzenegger, 2009 U.S. Dist. LEXIS 24678 (ED Cal 2009)…..... 1
Buck v. Bell, 274 U.S. 200 (1927)………………………………………….... 12, 13
Cahoo v. SAS Analytics, Inc., 912 F.3d 887 (6th Cir. 2019)…………………….. 25
Cantwell v. Connecticut, 310 U.S. 296 (1940)………………………………... 8, 14
Cavalry Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada,

19A1070 (July 24, 2020)……………………………………………………. 13, 14
Church of the Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993)……………………………………………….... 14, 15, 16, 17
City of L.A. v. Lyons, 461 U.S. 95 (1983)……………………………………..….. 3
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982)………….…….... 2
City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427 (6th Cir. 2014)... 7
In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir. 1985).................................... 7
Doe v. Bolton, 410 U.S. 179 (1973)……………………………………………... 27
Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811,

2020 WL 3249062 (7th Cir. June 16, 2020)..................................................... 10, 11
iii
Elim Romanian Pentecostal Church v. Pritzker, Gov. of Illinois,

19A1046 (May 29, 2020)………………………………………………….... 13, 14
Employment Div., Dept. of Human Resources of Ore. v. Smith,

494 U.S. 872 (1990)……………………………………………………….…….. 15
Epperson v. Arkansas, 393 U.S. 97 (1968)………………………………….…... 26
Ex parte Young, 209 U.S. 123 (1907)………………………………………….... 28
Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007)... 5, 6
First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978)………………….... 5, 6
Fraternal Order of Police Newark Lodge No.12 v. City of Newark,

170 F.3d 359 (3d Cir. 1999)............................................................................ 17, 18
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,

528 U.S. 167 (2000)………………………………………………………………. 3
Jacobson v. Massachusetts, 197 U.S. 11 (1905)……………………….. 8, 9, 11, 12
Jackson v. Ford Motor Co., 842 F.3d 902 (6th Cir. 2016)…………………….... 24
Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969 (2016)……………... 5
Kiser v. Reitz, 765 F.3d 601 (6th Cir.2014)…………………………………….. 27
Korematsu v. United States, 323 U.S. 214 (1944)…………………………….... 13
Maryville Baptist Church, Inc., et. al. v. Beshear,

957 F.3d 610 (6th Cir. 2020)……………………………………………….. passim
McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015) ………………………….. 3
McCreary County, Ky. v. Am. Civil Liberties Union of Ky.,

545 U.S. 844 (2005)………………………………………………………………. 3
McKay v. Federspiel, 823 F.3d 862 (6th Cir. 2016)……………………….... 26, 27

iv
Neinast v. Bd. Of Trustees of Columbus Metro. Library,

346 F.3d 585 (6th Cir. 2003)…………………………………………………... 24
New England Health Care Employees Pension Fund v.

Ernst & Young, LLP, 336 F.3d 495 (6th Cir. 2003)……………………..……... 19
Norman-Bloodsaw v. Lawrence Berkely Lab., 135 F.3d 1260 (9th Cir 1998)…... 3
Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985)............................................ 4
Platt v. Bd. of Comm'rs on Grievs. & Discipline of the

Ohio Supreme Court, 769 F.3d 447 (6th Cir.2014)……………………………... 27
Ramsek v. Beshear, EDKY Case No. 3:20-CV-00036………………….. 19, 20, 23
Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020)…………………….... 7, 10, 22, 23
Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015)…………….... 26, 27
Sacks v. Office of Foreign Assets Control, 466 F.3d 764 (9th Cir. 2006) ………. 1
Sherbert v. Verner, 374 U.S. 398 (1963)……………………………………….. 11
Soos v. Cuomo, 2020 U.S. Dist. LEXIS 111808 (NYND 2020)……………….. 10
South Bay Pentecostal Church v. Newsom, 19A1044 (May 29, 2020).......... 13, 14
Southern Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911)…………………….... 6
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)……………………... 26
Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998)……………………..…….. 6, 7
Sweezy v. New Hampshire, 354 U.S. 234 (1957)………………………..…..... 11
Swierkiewicz v. Sorema N.A., 534 U.S.506 (2002)……………………….. 23, 24
Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017)……………………………………………………. 2, 3, 4
v
Trump v. Hawaii, 138 S.Ct. 2392 (2018)……………………………….…... 13
Turner v. Rogers, 564 U.S. 431 (2011)…………………………………….... 5
United States v. James Daniel Good Real Prop., 510 U.S. 4 (1993)……….. 25
United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018)………………….... 3
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)……….………... 14
Ward v. Polite, 667 F.3d 727 (6th Cir. 2002)...................................... 17, 18, 21
Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020)………………....…….….... 7
Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016)…………………………... 25
Women's Medical Professional Corp. v. Voinovich,

130 F.3d 187 (6th Cir. 1997)…………………………………………………. 28
Statutes and Rules:
Statutes:
K.R.S. 15.725................................................................................................... 25, 26
K.R.S. 24A.110………………………………………………………………….. 26
K.R.S. 39A.990………………………………………………………………….... 1
K.R.S. 500.050…………………………………………………………………..... 1
Rules:
Fed. R. Civ. P.8(a)(2)............................................................................................. 24
vi
Other Sources:
Claude Moore, Historical Collections at the Claude Moore Health Sciences Library,
Eugenics: Three Generations, No Imbeciles, University of Virginia (2004), available
at: http://exhibits.hsl.virginia.edu/eugenics/5-epilogue/ ........................................ 13
Trevor Burrus, The United States Once Sterilized Tens of Thousands — Here’s How
the Supreme Court Allowed It, Jan 27, 2016,
https://medium.com/@trevorburrus/the-united-states-once-sterilized-tens-of-
thousands-here-s-howthe-supreme-court-allowed-it-327c3ee04ccb .................... 12
Stephen Siegel, The Origins of the Compelling State Interest Test and Strict
Scrutiny, 48 Am. J. Legal History 355 (2008)……………………………………. 11
https://www.foxnews.com/health/coronavirus-vaccine-may-never-come-health-
expert-warns ........................................................................................................... 6
https://www.theguardian.com/world/2020/may/22/why-we-might-not-get-a-
coronavirus-vaccine …………………………………………………………..... 6
https://www.usatoday.com/story/news/2020/05/17/coronavirus-peak-america-
ready-second-wave-fall/3096338001/ …………………………………………... 6
https://www.washingtonpost.com/health/2020/04/21/coronavirus-secondwave-
cdcdirector/ …………………………………………………………………….... 6
vii
ARGUMENT
I. The case is not moot due to the changed orders, or an exception

applies
This case is not moot or an exception applies.
A. Plaintiffs actually violated the mass gathering ban, subjected

themselves to criminal prosecution, and received a threat of that
criminal prosecution; as such, as to the in-person corporate worship
ban, the claims related to that ban are not moot, at least insofar as an
injunction prohibiting their criminal prosecution is concerned
Plaintiffs violated the Governor’s mass gathering ban by attending Easter
Sunday church service and, as a consequence, received a prosecution and
quarantine notice. [Verified Am. Complaint, RE#6, ¶¶ 28, 33, PageID#76-78].
Their violation of the Governor’s order is a Class A misdemeanor. K.R.S.
39A.990. The statute of limitations of two years has not yet passed. K.R.S.
500.050. Under prevailing case law, as to declaratory relief and injunctive relief
related to this in-person worship, the matter is not moot. Sacks v. Office of Foreign
Assets Control, 466 F.3d 764 (9th Cir. 2006) (violation of repealed statute does not
foreclose relief if the statute was violated); Bowman v. Schwarzenegger, 2009 U.S.
Dist. LEXIS 24678 (ED Cal 2009) (same).
Not surprisingly, Defendants/Appellees completely failed to refute or even
address this argument in their brief, tacitly conceding the fact that the case is not
moot due to the continued threat of prosecution. [Brief, R. 43, at pp. 10-13].
1
B. The voluntary cessation doctrine applies
Governor Beshear’s sudden, “voluntary” shift from the complete ban on
religious worship enshrined in his mass gathering ban, which he vigorously
defended in this Court and the Circuit Court, is not enough to remove his conduct
from review:
It is well settled that a defendant's voluntary cessation of a challenged

practice does not deprive a federal court of its power to determine the
legality of the practice. Such abandonment is an important factor bearing on
the question whether a court should exercise its power to enjoin the
defendant from renewing the practice, but that is a matter relating to the
exercise rather than the existence of judicial power.
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)
(emphasis added). Rather:
a defendant cannot automatically moot a case simply by ending its unlawful

conduct once sued. Otherwise, a defendant could engage in unlawful
conduct, stop when sued to have the case declared moot, then pick up where
he left off, repeating this cycle until he achieves all his unlawful ends.
Given this concern, our cases have explained that a defendant claiming that
its voluntary compliance moots a case bears the formidable burden of
showing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (emphasis added)
(internal quotation marks and citation omitted).
Applying this “formidable burden,” the Supreme Court held in Trinity
Lutheran Church of Columbia, Inc. v. Comer that a state governor’s “voluntary
cessation of a challenged practice does not moot a case unless ‘subsequent events
2
ma[ke] it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.’” 137 S. Ct. 2012, 2019 n.1 (2017) (modification
in original) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 189 (2000)).
Here, Governor Beshear “has not come anywhere close to carrying “the
‘heavy burden’ of making ‘absolutely clear’ that [he] could not revert to [his]
policy,” ie., where he can reimpose his ban on in-person religious worship
services, because his sudden change in policy is neither permanent nor irrevocable.
See City of L.A. v. Lyons, 461 U.S. 95, 101 (1983). Neither the plain language nor
the regulatory context of the revised orders demonstrates any authority to bind the
Governor irrevocably against further orders. See id.; Porter v. Bowen, 496 F.3d
1009, 1017 (9th Cir. 2007).
Most significantly, the Governor has “neither asserted nor demonstrated that
[he] will never resume the complained of conduct.” Norman-Bloodsaw v.
Lawrence Berkely Lab., 135 F.3d 1260, 1274 (9th Cir 1998); United States v.
Sanchez-Gomez, 138 S. Ct. 1532, 1537 n.* (2018) (holding, where government
intends to reinstate old policy, “the rescission of the policy does not render this
case moot”); McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S.
844, 871 (2005) (rejecting counties’ mere “litigating position” as evidence of
actual intent of county policies).
3
Thus, a case is not moot where, as here, the Governor “did not voluntarily
cease the challenged activity because he felt [it] was improper,” but, on the
contrary, “has at all times continued to argue vigorously that his actions were
lawful.” Olagues v. Russoniello, 770 F.2d 791, 795 (9th Cir. 1985).
In an attempt to avoid the above authority, Defendants/Appellees cite Bench
Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012). But Bench
Billboard Co. involved a legislative enactment that completely supplanted the
prior, challenged scheme. That is not what happened here. Rather, the more
recent i U.S. Supreme Court authority in Trinity Lutheran Church of Columbia,
Inc., 137 S. Ct. 2012, 2019 n.1, provides the appropriate analysis here. There, as
here, we deal with executive branch orders and policies, not legislative changes
that are, by their very nature, more durable and permanent. Further, and
compellingly, Defendants do not disavow re-imposing the policy. They instead
state that it is merely “unlikely” to be imposed again. [Brief, R. 43 at 12]. With
respect, a 49% chance of Governor Beshear re-imposing the challenged order, is
anything other than making “it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” 137 S. Ct. 2012, 2019 n.1.
Moreover, Defendants/Appellees’ pointing to the Governor’s recent, for
now, recommendation that churches cease in-person worship services, as some sort
of evidence that he would not reimpose his ban, is actually evidence that he may
4
very well reimpose his ban. That is because this fact demonstrates a real desire to
prohibit in-person worship services, restrained only by this Court’s Injunction
Pending Appeal.
C. This case presents a classic case of capable of repetition yet evading

review
Not only can the Governor not carry his burden under the voluntary
cessation doctrine, but this case also “fit[s] comfortably within the established
exception to mootness for disputes capable of repetition, yet evading review.” Fed.
Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462 (2007).
“The exception applies where ‘(1) the challenged action is in its duration too
short to be fully litigated prior to cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will be subject to the same
action again.’” Id. Both circumstances are present here. There is no question that
the duration of the Governor’s ban on in-person Church attendance was always
going to be “too short to be fully litigated prior to cessation or expiration.”
However, with any resurgence of COVID-19 cases, the ban could easily be
repeated.
This sort of case was destined to be too short to be fully litigated. See
Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (two years
is too short, exception applies); Turner v. Rogers, 564 U.S. 431, 440 (2011); First
5
Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978); Southern Pac. Terminal
Co. v. ICC, 219 U.S. 498, 515 (1911).
Given some expert predictions of a second wave of coronavirus in the fall,1
and perhaps beyond that, and the Governor’s own recent public requests to cease
in-person worship, with some indications that a vaccine may not ever be able to be
developed,2 there is, indeed, a threat that these same parties may be subject to the
same unconstitutional actions again.
II. The District Court erred in failing to grant the preliminary

injunction
A. Preliminary injunction standard
When deciding whether to issue a preliminary injunction, a court must
consider the following four factors: (1) Whether the movant has demonstrated a
strong likelihood of success on the merits; (2) Whether the movant would suffer
irreparable harm; (3) Whether issuance would cause substantial harm to others;
and (4) Whether the public interest would be served by issuance. Suster v.
1
https://www.washingtonpost.com/health/2020/04/21/coronavirus-secondwave-
cdcdirector/ (last visited 6/5/2020);
https://www.usatoday.com/story/news/2020/05/17/coronavirus-peak-america-
ready-second-wave-fall/3096338001/ (last visited 6/5/2020).
2
https://www.theguardian.com/world/2020/may/22/why-we-might-not-get-a-
coronavirus-vaccine (last visited 6/5/2020);
https://www.foxnews.com/health/coronavirus-vaccine-may-never-come-health-
expert-warns (last visited 6/5/2020).
6
Marshall, 149 F.3d 523, 528 (6th Cir. 1998). These "are factors to be balanced,
not prerequisites that must be met." In re DeLorean Motor Co., 755 F.2d
1223, 1229 (6th Cir. 1985).
Appellees argue that these questions are all analyzed under an abuse of
discretion standard. [Brief, R. 43 at 13]. Not so. "A movant's likelihood of
success on the merits is a question of law reviewed de novo." Wilson v. Williams,
961 F.3d 829, 837 (6th Cir. 2020). Assuming the District Court gets that right,
then “we review for abuse of discretion the district court's ultimate conclusion as to
whether the preliminary injunction factors weigh in favor of granting or denying
preliminary injunctive relief.” Id.
Appellees do not contest in their briefing that in constitutional cases,
everything turns on the likelihood of success on the merits. As this Court observed
in Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020), “[p]reliminary injunctions
in constitutional cases often turn on likelihood of success on the merits, usually
making it unnecessary to dwell on the remaining three factors.” Citing City of
Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en
banc) (per curiam).
7
B. The “deferential” line of cases are patently incorrect when dealing

with fundamental rights; rather the analytical line of analysis
should be followed when dealing with fundamental rights
The entirety of the so called “deferential” line of cases rest upon an
erroneous analysis of Jacobson v. Massachusetts, 197 U.S. 11 (1905). In 1905,
prior to the advent of the modern incorporation doctrine,3 the United States
Supreme Court decided Jacobson, 197 U.S. 11. Since then, government actors
have cited Jacobson as the be-all, end-all when it comes to evaluating their
conduct in times of health crises. Their argument is that during such times,
government actors possess a virtual “blank check” of authority. In other words,
and in practical effect, the Constitution is suspended. Not surprisingly, this is a
tortured, unsupported reading of Jacobson and the Constitution.
Jacobson was a vaccination case, not a fundamental rights case. The
Supreme Court in Jacobson began its analysis by noting that the rights being
asserted could not be found in the Constitution’s preamble or spirit – such
provisions conveying no rights. Id. at 22. The Jacobson Court viewed the case
under its then-existing substantive due process clause, which prohibited
“unreasonable, arbitrary and oppressive” government enactments. Id. at 26. It
3
The First Amendment was incorporated against the states in 1940. Cantwell v.
Connecticut, 310 U.S. 296 (1940).
8
observed that forced vaccination for the benefit of others “was not an unusual nor
an unreasonable or arbitrary requirement.” Id. at 27.
However, even under its then existing jurisprudence, the Jacobson Court
rejected the “blank check” argument, and stated that the “power of a local
community to protect itself against an epidemic threatening the safety of all, might
be exercised in particular circumstances and in reference to particular persons in
such an arbitrary, unreasonable manner, or might go so far beyond what was
reasonably required for the safety of the public, as to authorize or compel the
courts to interfere for the protection of such persons.” Id. at 28.
More significantly, the Jacobson Court cautioned that where state laws or
enactments invade the domain of Federal authority and violate rights secured
by the Constitution, the Court would deem it “to be its duty” to hold such laws
invalid. Id. at 29. The Court concluded that where there is a “a plain, palpable
invasion of rights secured by the fundamental law, it is the duty of the courts
to so adjudge, and thereby give effect to the Constitution.” Id. at 31. Recent
caselaw from this Court unquestionably supports this clear-eyed understanding of
Jacobson that the Constitution does not sleep during a public health crisis.
Although there are some variations of facts, two distinct lines of reasoning
have emerged from the cases involving church challenges to COVID-19 worship
restrictions: the analytical line, which examines the real and practical similarities
9
and differences in contagion danger as between worship services and the
nonreligious conduct exempted from restrictions, and the deferential line, which
accepts the superficial categorizations of allowed and prohibited activities with
only shallow examination of their relative dangers.
This Court should continue to follow the analytical line and hold that, as a
real and practical matter, the Governor’s Orders arbitrarily and discriminatorily
restrict worship services in violation of Appellants’ free exercise rights.
The analytical approach is exemplified by this Court’s decision in Roberts,
958 F.3d 409, and Maryville Baptist Church, Inc., et. al. v. Beshear, 957 F.3d 610
(6th Cir. 2020). Other courts have followed these approaches. Soos v. Cuomo,
2020 U.S. Dist. LEXIS 111808 (NYND 2020); Berean Baptist Church v. Cooper,
2020 U.S. Dist. LEXIS 86310 (NCED 2020).
The deferential line is typified by the recent Seventh Circuit decision in Elim
Romanian Pentecostal Church v. Pritzker, No. 20-1811, 2020 WL 3249062 (7th
Cir. June 16, 2020) (hereinafter Elim Romanian), where two churches challenged
the Illinois Governor’s executive order restricting worship services to 10 people.
2020 WL 3249062, at *1. The Seventh Circuit sought to determine, “what is the
right comparison group: grocery shopping, warehouses, and soup kitchens, as
plaintiffs contend, or concerts and lectures, as Illinois maintains?” Id. at *5. The
10
court acknowledged “that warehouse workers and people who assist the poor or
elderly”—exempt “life-sustaining” workers under Governor Beshear’s Orders—
“may be at much the same risk as people who gather for large, in-person religious
worship.” Id. at *6. Despite acknowledging the similar risks, however, the Seventh
Circuit essentially decided to adhere to absolute deference.
The deferential line of reasoning is incorrect as a matter of constitutional
law. Invoking Jacobson as providing a separate, deferential framework for
analyzing First Amendment claims is precluded not only by the language of
Jacobson itself, but also by the Supreme Court’s substantial development of its
First Amendment jurisprudence in the decades since Jacobson.
Indeed, the concept of “compelling interest” was not introduced to First
Amendment jurisprudence until over 50 years after Jacobson, in Sweezy v. New
Hampshire, 354 U.S. 234, 265 (1957) (Frankfurter, J., concurring), and strict
scrutiny was not applied in its current form until 60 years after Jacobson, in
Sherbert v. Verner, 374 U.S. 398 (1963); see also Stephen Siegel, The Origins of
the Compelling State Interest Test and Strict Scrutiny, 48 Am. J. Legal History 355
(2008). Jacobson preceded all of these developments, and did not involve First
Amendment questions at all, let alone the questions at issue here.
Even worse, however, is the consideration of the dangerous precedent that
not only is imaginable, but did in fact occur, as a result of the Jacobson decision.
11
The infamous progeny of Jacobson is Buck v. Bell, 274 U.S. 200, 205 (1927),
which ruled that a state may forcibly sterilize its citizens. Carrie Buck then lived
in Virginia.4 Among her misfortunes was that she was under the care of one Dr.
Albert Priddy, a zealous advocate of “genetic science.” Id. Priddy diagnosed
Carrie as defective, concluding—as a matter of science—that she could provide no
offspring useful to society. Id. Carrie did not agree, but Virginia’s courts did. Id.
So, Carrie asked the United States Supreme to protect her against the state. Id.
According to the ruling in Buck, “[t]he principle that sustains compulsory
vaccination is broad enough to cover cutting the Fallopian tubes.” Buck, 274 U.S.
at 207, citing Jacobson. Writing for an 8-1 majority, Justice Holmes gave her this
answer: “It is better for all the world, if instead of waiting to execute degenerate
offspring for crime, or to let them starve for their imbecility, society can prevent
those who are manifestly unfit from continuing their kind.” Id. Justice Holmes,
speaking for our highest court, declared that “three generations of imbeciles are
enough.” Id. He assured posterity that, on the certitude of science, his court had
properly adjudicated Carrie, her mother, and Carrie’s little girl Vivian imbeciles.
But Vivian would prove the fallibility of the Court, and the eugenics science
4
Trevor Burrus, The United States Once Sterilized Tens of Thousands — Here’s
How the Supreme Court Allowed It, Jan 27, 2016,
https://medium.com/@trevorburrus/the-united-states-once-sterilized-tens-of-
thousands-here-s-howthe-supreme-court-allowed-it-327c3ee04ccb (last visited
8/10/2020).
12
Justice Holmes so avowed. For in the ensuing years, Vivian was placed on the
honor roll at her school in Charlottesville.5
The danger of the “deferential” line of cases is clear: there is no lines; there
are no rules. If it begins with discriminatory restrictions on church, it invariably
ends with Americans interred in COVID camps. In times of public panic and fear,
egregious violations of fundamental rights have been permitted throughout the
history of this Country. Korematsu v. United States, 323 U.S. 214 (1944).
Typically, it is only well after the fact that we have recognized the error of doing
so. Trump v. Hawaii, 138 S.Ct. 2392 (2018).
Appellees next cite as authority the denial of injunctions pending appeal in
the U.S. Supreme Court in South Bay Pentecostal Church v. Newsom, 19A1044
(May 29, 2020), Elim Romanian Pentecostal Church v. Pritzker, Gov. of Illinois,
19A1046 (May 29, 2020), and Cavalry Chapel Dayton Valley v. Steve Sisolak,
Governor of Nevada, 19A1070 (July 24, 2020).
We addressed, in our opening brief the South Bay Pentecostal Church denial
of an injunction pending appeal in the U.S. Supreme Court at length, the fact that
(i) these decisions are not precedent; (ii) are highly disfavored as a matter of course
5
Claude Moore, Historical Collections at the Claude Moore Health Sciences
Library, Eugenics: Three Generations, No Imbeciles, University of Virginia
(2004), available at: http://exhibits.hsl.virginia.edu/eugenics/5-epilogue/ , last
accessed July 17, 2020
13
in this country’s highest court; and (iii) that some Justices take the view that a
Circuit split (which exists) is an absolute bar to such relief. [Appellants Brief,
R.37, at 34-44]. Those same arguments apply equally to the more recent denials of
injunctions pending appeal in Elim Romanian Pentecostal Church v. Pritzker, Gov.
of Illinois, 19A1046 (May 29, 2020), and Cavalry Chapel Dayton Valley v. Steve
Sisolak, Governor of Nevada, 19A1070 (July 24, 2020).
C. The Challenged Order is not a order of neutral and general

applicability
The First Amendment protects the “free exercise” of religion, and
fundamental to this protection is the right to gather and worship. See W. Va. State
Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943); Cantwell, 310 U.S. 296.
Because of this fundamental protection, “a law burdening religious practice that is
not neutral or not of general application must undergo the most rigorous of
scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546
(1993). The requirements to satisfy this scrutiny are so high that the government
action will only survive this standard “in rare cases,” and the government bears the
burden of proof. Id.
As the Supreme Court observed in Hialeah, “[i]n addressing the
constitutional protection for free exercise of religion, our cases establish the
general proposition that a law that is neutral and of general applicability need not
be justified by a compelling governmental interest even if the law has the

14
incidental effect of burdening a particular religious practice.” 508 U.S. 520, 531,
quoting Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
872 (1990). “Neutrality and general applicability are interrelated, and, as becomes
apparent in this case, failure to satisfy one requirement is a likely indication that
the other has not been satisfied.” Id. However, a law failing to satisfy either of
these requirements must be justified by a compelling governmental interest and
must be narrowly tailored to advance that interest. Id.
Here, the “mass gathering ban” banned all faith-based mass gatherings, but
then exempted a list of purely secular ones. [Am. Verified Compl., RE#6,
PageID#74-75, and Exhibit D thereto, PageID#99-100].
As noted, the Governor’s mass gathering ban initially provided that “[a]ll
mass gatherings are hereby prohibited,” and then went on to define “[m]ass
gatherings” to include “any event or convening that brings together groups of
individuals, including, but not limited to, community, civic, public, leisure, faith-
based, or sporting events; parades; concerts; festivals; conventions; fundraisers;
and similar activities.” Id. (emphasis added). So, the calling out of faith-based
gatherings here demonstrated the lack of neutrality on its face. But making the
matter even more problematic, and for the avoidance of any doubt, the only
exemption was for a number of purely secular activities. Id.
15
Specifically, the mass gathering ban continued: “[f]or the avoidance of
doubt, a mass gathering does not include normal operations at airports, bus and
train stations, medical facilities, libraries, shopping malls and centers, or other
spaces where persons may be in transit. It also does not include typical office
environments, factories, or retail or grocery stores where large numbers of people
are present, but maintain appropriate social distancing.” Id. (emphasis added). In
other words, the plain text of the Governor’s mass gathering ban left no doubt it
lacked facial neutrality. At this point, Defendants/Appellees cannot meet their
burden of constitutionality.
But, even if the law were facially neutral, which it was not, the inquiry does
not end “with the text of the laws at issue.” Hialeah, 508 U.S. 520, 534. Mere
“facial neutrality is not determinative.” Id. That is because the Free Exercise
Clause even "forbids subtle departures from neutrality," and "covert
suppression of particular religious beliefs." Id. (emphasis added). “Official action
that targets religious conduct for distinctive treatment cannot be shielded by mere
compliance with the requirement of facial neutrality.” Id. "The Court must survey
meticulously the circumstances of governmental categories to eliminate, as it were,
religious gerrymanders." Id.
16
Any under-inclusivity and/or overbreadth of the challenged legislation is
constitutionally significant. Id. at 535-539. Thus, where government restricts
conduct protected by the First Amendment (which certainly is the case here), but
“fails to enact feasible measures to restrict other conduct producing substantial
harm or alleged harm of the same sort, the interest given in justification of the
restriction is not compelling.” Id. at 546-547.
In other words, if crowded conditions allowing for more easy transmission
of the coronavirus are the concern here, then the permissibility of mass gatherings
at waiting areas located inside airports, bus and train stations, as well as the
continued operation of shopping malls, medical facilities, libraries, and
convenience stores, all demonstrate a significant under-inclusivity problem.
In Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2002), this Court observed that
“at some point, an exception-ridden policy takes on the appearance and reality of a
system of individualized exemptions, the antithesis of a neutral strict scrutiny.” Id.
In other words, “a double standard is not a neutral standard.” Id.
In rendering its decision, the Ward Court favorably cited then Judge Alito’s
opinion in Fraternal Order of Police Newark Lodge No.12 v. City of Newark, 170
F.3d 359,365-67 (3d Cir. 1999) (Alito, J.) (invalidating a police department policy,
ostensibly adopted to promote unity within the department, that only barred some
officers from growing beards where the policy exempted officers who could not
17
shave for medical reasons, but not officers who could not shave for religious
reasons).
Here, as was the case in both City of Newark and in Ward, the Governor’s
mass gathering ban was “riddled with exemptions” for secular “mass gatherings,”
but banned all faith-based “mass gatherings,” such as in-person church services.
As such, it violates the Free Exercise Clause.
Defendants/Appellees misleadingly argue that “the order targeted gathering
in large groups of any kind.” [Brief, R. 43, at 24]. But that is patently and facially
not true. Large gatherings were and are permitted at “airports, bus and train
stations, medical facilities, libraries, shopping malls and centers, or other spaces
where persons may be in transit.” [Am. Verified Compl., RE#6, PageID#74-75,
and Exhibit D thereto, PageID#99-100]. Large gatherings were also permitted in
“typical office environments, factories, or retail or grocery stores where large
numbers of people are present, but maintain appropriate social distancing.” Id.
Thus, it was not all such gatherings that were banned, but rather, only those on the
list, including all “faith based” gatherings.
Defendants/Appellees next argue that the order “equally burdened all mass
gatherings, regardless of their religious nature.” [Brief, R. 43, at 25]. That is
simply not true. One can sit in an airport waiting area for an hour, watching CNN
on the airport’s televisions, in close proximity to 150 other people, without penalty.
18
But engage in the same activity for church, watching the pastor preach, and the
Governor criminalizes the activity.
Defendants/Appellees next argue that the mass gatherings order was
somehow not a value judgment, and was instead a scientific one. [Brief, R. 43, at
27]. This argument ignores not only common sense, but also the testimony from
Defendants/Appellee’s own Commissioner of Public Health as to this same order
in another context.
Dr. Steven Stack’s deposition reveals that these orders were issued not based
on science, because risk of virus spread cannot be eliminated without locking down
everyone, but instead were based on value judgments by politicians about the
importance or value of particular activities. Ramsek v. Beshear, EDKY Case No.
3:20-CV-00036, Deposition of Dr. Steven Stack at [RE#43 in that case], at pp.
30,63,89-91.6
Specifically, Dr. Stack testified as follows:
Q. So Doctor, I know that you -- I mean your, your business is assessing the risk.
Are you the one who is also making the call on the value of a particular activity or
is that something that others are also involved in?
A. I don't think I make a value determination specifically on the activity. I make a

determination about the relevant risk of the activity itself. And, and then in the
decision of these things I make my recommendations, and then others have
6
This Court can take judicial notice of that deposition and the admissions within it.
Ashland, Inc. v. Oppenheimer & Co., 648 F.3d 461, 467 (6th Cir. 2011); New
England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d
495, 501 (6th Cir. 2003).
19
multisource input from other advisors that have to determine where the relative
risk and benefit weighting may lie.
Id. at p. 63; see, also, discussion at pp. 89-91.
That leaves us with the two recent, published decisions of this Court on this
issue. First, Maryville Baptist Church, Inc., et. al., 957 F.3d 610. As this Court
observed in Maryville “[d]iscriminatory laws come in many forms.” Id. “Outright
bans on religious activity alone obviously count.” Id. But “[s]o do general bans that
cover religious activity when there are exceptions for comparable secular
activities.” Id. “As a rule of thumb, the more exceptions to a prohibition, the less
likely it will count as a generally applicable, nondiscriminatory law.” Id., citing
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.
Leaving no doubt about the appropriate level of scrutiny, this Court then
stated that “the Governor's orders do not seem to survive strict scrutiny,
particularly with respect to the ban on outdoor services.” Id. “The question, then,
is one of general applicability.” Id.
Then this Court observed:
20
The real question goes to exceptions. The Governor insists at the outset that
there are "no exceptions at all." Appellee Br. at 21. But that is word play.
The orders allow "life-sustaining" operations and don't include worship
services in that definition. And many of the serial exemptions for secular
activities pose comparable public health risks to worship services. For
example: The exception for "life-sustaining" businesses allows law firms,
laundromats, liquor stores, and gun shops 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 essential services and even when they meet outdoors. Id.
(emphasis added).
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. Id.
“Risks of contagion turn on social interaction in close quarters; the virus
does not care why they are there.” Id. “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?” Id. “If the problem is numbers, and risks that grow with greater
numbers, then there is a straightforward remedy: limit the number of people who
can attend a service at one time.” Id.
Here, Governor Beshear offered no good reason, or any reason at all, for
refusing to trust the congregants who promise to use care in worship just the same
way he “trusts accountants, lawyers, and laundromat workers to do the same.” Id.
21
These pronouncements by this Court were only 2 days old when the District
Court rendered its utterly astounding decision and analysis on the likelihood of
success, and its finding that the Governor’s order was neutral and generally
applicable. [Opinion, RE#46, PAGEID#825-839]. The District Court poorly
reasoned that this Court “expressly limited its holding to drive-in church services,”
and “[had this] Court felt that such a broader injunction was warranted, it was
within its power to so order. This Court thus does not find that opinion to control
the outcome here.” [Opinion, RE#46, PAGEID#833-834].
In contrast, this Court in Maryville did not find that the Governor’s orders
were neutral and generally applicable. Rather, this Court found that the
Governor’s orders likely violated the First and Fourteenth Amendments and were
discriminatory violations of the Free Exercise Clause, “especially with respect to
drive-in services.” And, while the “especially” language demonstrated the
overreach of the Governor’s ban as applied to drive-in services, this Court in no
way limited its holding to such services.
That, in turn, leaves us with this Court’s published opinion in this case.
Roberts, 958 F.3d 409. This Court quoted its decision in Maryville, concluding
that the challenged order did, in fact, violate the First Amendment due to the
exceptions in the Governor’s order that favored secular activity over similar faith-
based activity. This Court also found that:
22
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 with a society that places
religious freedom in a place of honor in the Bill of Rights: the First
Amendment. Id. at 416.
The Governor still has not answered this Court’s concerns.7 The First
Amendment’s guaranty of Free Exercise was violated and Plaintiffs established
that they were entitled to the preliminary injunction.
III. The Due Process Claim was raised, preserved, and entitled
Appellants to relief
Defendants/Appellees next suggest that the Due Process Claim was not
raised or preserved, falsely claiming that it was only raised as to the travel ban.
[Brief, R.43 at 30]. First, they misapprehend the nature of notice pleading.
Swierkiewicz v. Sorema N.A., 534 U.S.506, 512 (2002) (the "simplified notice
7
Again, Dr. Stack’s deposition in Ramsek v. Beshear, reveals that the orders were
based on value judgments by politicians about the importance or value of particular
activities. Ramsek v. Beshear, EDKY Case No. 3:20-CV-00036, at RE#43 (in that
case), at pp. 30,63,89-91. This Court can take judicial notice of that deposition and
the admissions within it. Ashland, Inc., 648 F.3d 461, 467.
23
pleading standard [of Fed. R. Civ. P.8(a)(2)] relies on liberal discovery rules and
summary judgment motions to define disputed facts and issues and to dispose of
unmeritorious claims."). Indeed, Defendants/Appellees “hypertechnical arguments
regarding the allegations in [Plaintiff's] complaint rest on an inaccurate
understanding of notice pleading.” Jackson v. Ford Motor Co., 842 F.3d 902, 909
(6th Cir. 2016).
The Amended Complaint clearly places Defendants/Appellees on notice that
a due process challenge was raised as to the prohibition on in-person church
attendance and on the Quarantine and Prosecution Notice received by the
Appellants for their having attended church. [Amended Complaint, RE#6,
PageID#77-78, 80, 86-87, at ¶¶ 41, 42, 43, 78, 80, 81].
Appellants’ Motion for Preliminary Injunction is far more specific in making
clear that the due process claim applied to both the travel ban and the prohibition
on church attendance, and specifically involves a challenge to the Quarantine and
Prosecution Notice. [RE#7, RE#7-1, PageID#133-134, 145-146].
Defendants/Appellees contend that no hearing is required when the state
issues a generally applicable order, citing Neinast v. Bd. Of Trustees of Columbus
Metro. Library, 346 F.3d 585, 596-597 (6th Cir. 2003). That misapprehends the
issue here. Here, the Governor and State Police directed the Appellants to self-
quarantine or face criminal prosecution, with no ability to challenge that order.
24
[Verified Am. Complaint, RE#6, ¶¶ 28, 33, PageID#76-78]. There is nothing
generally applicable about the Quarantine and Prosecution Notice, it was directed
at these Appellants and others who attended church and no one else.
Pre-deprivation hearings must be afforded. This Court is clear that due
process generally requires a pre-deprivation hearing, subject to exceptions not
applicable here. Cahoo v. SAS Analytics, Inc., 912 F.3d 887 (6th Cir. 2019).
But even if a post-deprivation hearing is sufficient, there was no such
procedure associated with the Quarantine and Prosecution Notice.
IV. Boone County Attorney Neace is a proper party
Finally, Boone County Attorney Robert Neace argues that he is not a proper
party to this matter because he did not personally participate in threatening
enforcement against the Plaintiffs.
This Court, however, has been clear that a letter, not unlike the notice posted
on the windows of these Plaintiffs, constituted a credible threat of enforcement.
Winter v. Wolnitzek, 834 F.3d 681, 687-688 (6th Cir. 2016).
That Mr. Neace did not issue the letter, as it was issued at the behest of
Governor Beshear and Secretary Friedlander, is of no moment: the letter threatened
criminal enforcement and it is undisputed Mr. Neace’s office is the only office in
Boone County, where Mr. Roberts resides, that can bring criminal charges for the
Class A misdemeanor threatened in the letter. K.R.S. 15.725(2) (county attorney
25
“shall attend the District Court and prosecute all violations” subject to the district
court jurisdiction); K.R.S. 24A.110 (District Court jurisdiction over
misdemeanors). Mr. Neace has a statutory duty to enforce “all” violations. His
office accepts complaints from the public on violations. [Declaration Wiest,
RE#37, PageID#718-719]. This statutory authority, and the acceptance of
complaints from the public, is sufficient to give rise to a credible threat of
enforcement. Russell v. Lundergan-Grimes, 784 F.3d 1037, 1049-1050 (6th Cir.
2015).
It is necessary to plead a “credible threat of prosecution.” Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 158 (2014).8 A credible threat of prosecution (or
enforcement) typically requires an “indication of imminent enforcement.” McKay
v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016). The notices here were such a
threat.
These facts create a credible threat of enforcement and standing. Driehaus,
573 U.S. 149 (mere potential threat of enforcement is enough); Epperson v.
Arkansas, 393 U.S. 97, 101-02 (1968) (no record of prosecutions, statute at issue
was no more than a curiosity, but standing met on First Amendment grounds); See
8
Defendants appear to concede that Plaintiffs have established that they have plead
and established “an intention to engage in a course of conduct arguably affected
with a constitutional interest.” Babbitt v. United Farm Workers Nat'l Union, 442
U.S. 289, 298 (1979).
26
also, Doe v. Bolton, 410 U.S. 179, 188 (1973); Kiser v. Reitz, 765 F.3d 601 (6th
Cir.2014); Platt v. Bd. of Comm'rs on Grievs. & Discipline of the Ohio Supreme
Court, 769 F.3d 447 (6th Cir.2014).
Further, "past enforcement [of a statute] against the same conduct is good
evidence that the threat of enforcement is not chimerical … especially where the
agency tasked with enforcing the statute receives complaints on a relatively
frequent basis.” Russell, 784 F.3d 1037 (and finding that anyone involved with the
enforcement of the challenged statutes are proper parties).
As the Sixth Circuit observed in McKay, in the absence of an express threat
of enforcement, standing is met where there is (1) a history of past enforcement
against the plaintiffs or others; (2) enforcement warning letters sent to the plaintiffs
regarding their specific conduct; or (3) an attribute of the challenged statute that
makes enforcement easier or more likely, such as a provision allowing any member
of the public to initiate an enforcement action. Id. at 868-869.
The Quarantine and Prosecution Notice forced Mr. Roberts to self-
quarantine in his home (in Boone County) or face criminal prosecution if he failed
to do so. It was part of a history of enforcement and an enforcement warning letter
by the Commonwealth of Kentucky, through its agents, the Kentucky State Police
to Appellants about their specific conduct. And, Mr. Neace accepts complaints
from the public. All of the McKay factors are met.
27
But, perhaps most on point are Ex parte Young, 209 U.S. 123, 161 (1907)
(the Attorney General's "power by virtue of his office sufficiently connected him
with the duty of enforcement to make him a proper party to a suit") and Women's
Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997)
(prosecutor's ability to prosecute violations made them proper party). And Mr.
Neace undoubtedly has the power to prosecute Mr. Roberts in Boone County for
leaving his home in violation of the notice. He is a proper party.
CONCLUSION
The judgment of the District Court denying the preliminary injunction
should be reversed as further explained in this brief.
Respectfully submitted,
/s/Christopher Wiest___________
Christopher Wiest (KBA #90725)
25 Town Center Blvd, Ste. 104
Crestview Hills, KY 41017
513-257-1895
(859) 495-0803 (fax)
chris@cwiestlaw.com
/s/ Thomas B. Bruns_____________

Thomas B. Bruns (KBA #84985)
Bruns, Connell, Vollmar & Armstrong, LLC
4750 Ashwood Drive, Suite 200
Cincinnati, OH 45241
(513) 312-9890
(513) 800-1263 (fax)
tbruns@bcvalaw.com
28
and
/s/ Robert A. Winter, Jr. _________

Robert A. Winter, Jr. (KBA #78230)
P.O. Box 175883
Fort Mitchell, KY 41017-5883
(859) 250-3337
robertawinterjr@gmail.com
Attorneys for Plaintiffs/Appellants
CERTIFICATE OF COMPLIANCE WITH

FED. R. APP. P. 32(a)(7)(B) AND 6TH CIRCUIT RULE 32(a)
This brief complies with the type-volume limitations of Fed. R. App. P.
32(a)(7)(B) because it contains 6,473 words, excluding the parts of the brief
exempted by 6th Cir. R. 32(a) and/or Fed. R. App. P. 32(f).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in proportionally spaced typeface using Microsoft Office
Word 7.0 in 14-point Times New Roman font.
29
CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of August, 2020, this Reply Brief was
filed electronically. Notice of this filing will be sent to all parties for whom counsel
has entered an appearance by operation of the Court’s electronic filing system.
Parties may access this filing through the Court’s system.
30

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Case: 20-5465 Document: 44 Filed: 08/11/2020 Page: 1

CASE NO. No. 20-5465

UNITED STATES COURT OF APPEALS

KISHA ROBERTS; BRIANNA ROBERTS

Defendants-Appellees. Hon. William O. Bertelsman

PLAINTIFFS/APPELLANTS’ THEODORE J. ROBERTS, RANDALL

Christopher Wiest (KBA 90725) Thomas B. Bruns (KBA #84985)

Robert A. Winter, Jr. (KBA #78230)

Attorneys for Plaintiffs/Appellants Theodore Joseph Roberts, Randall Daniel, and

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013)…………………………………... 2

Berean Baptist Church v. Cooper, 2020 U.S. Dist. LEXIS 86310

Buck v. Bell, 274 U.S. 200 (1927)………………………………………….... 12, 13

Cantwell v. Connecticut, 310 U.S. 296 (1940)………………………………... 8, 14

Cavalry Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada,

Church of the Lukumi Babalu Aye, Inc. v. Hialeah,

City of L.A. v. Lyons, 461 U.S. 95 (1983)……………………………………..….. 3

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982)………….…….... 2

In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir. 1985).................................... 7

Doe v. Bolton, 410 U.S. 179 (1973)……………………………………………... 27

Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811,

Elim Romanian Pentecostal Church v. Pritzker, Gov. of Illinois,

Employment Div., Dept. of Human Resources of Ore. v. Smith,

Epperson v. Arkansas, 393 U.S. 97 (1968)………………………………….…... 26

Ex parte Young, 209 U.S. 123 (1907)………………………………………….... 28

First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978)………………….... 5, 6

Fraternal Order of Police Newark Lodge No.12 v. City of Newark,

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,

Jacobson v. Massachusetts, 197 U.S. 11 (1905)……………………….. 8, 9, 11, 12

Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969 (2016)……………... 5

Kiser v. Reitz, 765 F.3d 601 (6th Cir.2014)…………………………………….. 27

Korematsu v. United States, 323 U.S. 214 (1944)…………………………….... 13

Maryville Baptist Church, Inc., et. al. v. Beshear,

McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015) ………………………….. 3

McCreary County, Ky. v. Am. Civil Liberties Union of Ky.,

McKay v. Federspiel, 823 F.3d 862 (6th Cir. 2016)……………………….... 26, 27

Neinast v. Bd. Of Trustees of Columbus Metro. Library,

New England Health Care Employees Pension Fund v.

Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985)............................................ 4

Platt v. Bd. of Comm'rs on Grievs. & Discipline of the

Ramsek v. Beshear, EDKY Case No. 3:20-CV-00036………………….. 19, 20, 23

Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015)…………….... 26, 27

Sherbert v. Verner, 374 U.S. 398 (1963)……………………………………….. 11

Soos v. Cuomo, 2020 U.S. Dist. LEXIS 111808 (NYND 2020)……………….. 10

Southern Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911)…………………….... 6

Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)……………………... 26

Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998)……………………..…….. 6, 7

Sweezy v. New Hampshire, 354 U.S. 234 (1957)………………………..…..... 11

Swierkiewicz v. Sorema N.A., 534 U.S.506 (2002)……………………….. 23, 24

Trinity Lutheran Church of Columbia, Inc. v. Comer,

Trump v. Hawaii, 138 S.Ct. 2392 (2018)……………………………….…... 13

Turner v. Rogers, 564 U.S. 431 (2011)…………………………………….... 5

United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018)………………….... 3

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)……….………... 14

Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020)………………....…….….... 7

Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016)…………………………... 25

Women's Medical Professional Corp. v. Voinovich,

Statutes and Rules: