IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION AT COVINGTON
Electronically Filed

PLEASANT VIEW BAPTIST CHURCH, et. al. : Case No. 2:20-cv-00166

Plaintiffs :
v. :
LYNNE M. SADDLER, in her official capacity, :
et. al.
:
Defendants
REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs, by and through Counsel, submit this Reply in support of their Motion for

Preliminary Injunction.1

A. Standing

In his opening salvo, the Governor argues that these Plaintiffs lack standing, claiming

that they “it is not plausible that it will be enforced against them in the manner they allege.”

(Resp., RE#16, at 12). First, these Plaintiffs alleged prior enforcement of the Governor’s

COVID-19 related orders, including with respect to religious gatherings, and related to political

1
We have not generally addressed the claims related to the schools, but do note that the recent
Sixth Circuit analysis in Danville Christian Acad. v. Beshear, ---F.3d ---, 2020 U.S. Dist. LEXIS
221366 (6th Cir. 2020) is not dispositive of the claims regarding either Free Exercise, Assembly,
or Association or Right to Parent, for the Christian School Plaintiffs. That is because strict
scrutiny is triggered without regard to whether the restriction is neutral and generally applicable
where there are also these additional claims. Employment Div. v. Smith, 494 U.S. 872, 881
(1990); Ohio Ass'n of Indep. Sch. v. Goff, 92 F.3d 419, 423 (6th Cir. 1996); Vandiver v. Hardin
County Bd. of Educ., 925 F.2d 927, 931 (6th Cir. 1991); NAACP v. Button, 371 U.S. 415, 430
(1963); Roberts v. United States Jaycees, 468 U.S. 609, 617-618 (1984). The Sixth Circuit’s
decision in Danville also failed to adhere to the U.S. Supreme Court’s recent decision in Roman
Catholic Diocese of Brooklyn, New York, v. Andrew M. Cuomo, Governor of New York, 592 U.S.
---, 2020 U.S. LEXIS 5708 (2020), and is the subject of a now-pending Motion to Vacate the
stay, in which Justice Kavanaugh has directed the Governor to respond by 4:00 p.m. this Friday,
December 4, 2020, and, for that reason, appears to be short-lived.

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gatherings. (Pl.’s Verified Complaint, RE#1, at ¶¶ 16, 24). But they went further here, and

specifically called several of the Health Departments2 charged with the enforcement of the

orders, and confirmed that the orders would be enforced against them, in accordance with the

plain language of the order. (Id. at ¶¶ 56-64). They also called two law enforcement agencies to

confirm they would enforce and disperse indoor crowds if they received a complaint. (Id. at ¶

60). As opposed to “subjective chill,” then, these conversations were credible threats of

enforcement. And the fact that the Complaint was sworn to and verified is sufficient evidence.

El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008); Thaddeus-X v. Blatter, 175 F.3d 378, 385 (6th

Cir. 1999).

The Governor now contends, in the midst of litigation, that the Plaintiffs have it all

wrong, and that the plain language of his Executive Order, punishable as a Class A

misdemeanor, does not mean what it says. Let us be clear, it says: “5. Social Gatherings. All

indoor social gatherings are limited to a maximum of two (2) households and a maximum of

eight (8) people. A household is defined as individuals living together in the same home.” (Pl.’s

Compl., RE#1, Exhibit A). The Governor also argues (repeatedly throughout his Memorandum),

that this Court should adopt a construction that reads out the eight-person maximum for a single

household, so that the prohibition does not apply to households that have more than eight people,

perhaps in recognition that he has crossed another constitutional line.

But federal courts are without power to adopt a narrowing construction of a state statute

unless such a construction is reasonable and readily apparent. See, e. g., Grayned v. Rockford,

2
The Governor claims that Plaintiffs did not identify the Health Departments in his
Memorandum, but the Plaintiffs did: the Plaintiffs have conversations with the Northern
Kentucky Independent Health District, the Lexington Fayette County Health Department, the
Louisville Metro Health Department, Wedco Health Department, and Daviess County Health
Department. (Id. at ¶ 57).
2
408 U. S. 104, 110 (1972); Gooding v. Wilson, 405 U. S. 518, 520-521 (1972). The Governor’s

attempt to rewrite the order through his argument is neither a reasonable construction, nor is it

readily apparent. That is fundamentally because the order means what it says: you cannot have

more than two households, and you cannot have more than eight people. The Governor does not

suggest that if two households met, and there were ten people that such a gathering would be

permissible. Rather, he attempts to engraft an exception into the order where it does not appear.

With constitutional litigation pending, and with local Health Departments having

confirmed that the order means what it says, he (and Dr. Stack in his declaration), argue that they

did not really mean it when it came to a single household. The Sixth Circuit has long indicated

that little weight is given to such ad hoc carve-outs to criminal prohibitions created mid-litigation

that do not alter the provision criminalizing the plaintiff’s conduct. Planned Parenthood Ass’n

of Cincinnati v. City of Cincinnati, 822 F.2d 1390, 1395 (6th Cir. 1997) (presence of a criminal

statute and fact that Plaintiff is within its import sufficient for standing). Moreover, and going to

the factors in McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016), there is a past history of

enforcement against Plaintiffs – Plaintiff Wheatley is, in fact, the same Tony Wheatley who was

a Plaintiff in Ramsek v. Beshear, 2020 U.S. Dist. LEXIS 110668, --- F. Supp. 3d --- (EDKY

2020). In that same case, the Governor’s use of the State Police to block free speech and

political gathering activities – which are implicated here, was found to confer standing by the

Sixth Circuit.

The Second McKay factor, enforcement warning letters, is also met. 823 F.3d 862, 867.

While a letter, as such, is not present, the oral threats by the Health Departments and two law

enforcement agencies was more than sufficient, and, indeed, equivalent to the letters. (Id. at ¶¶

56-64). And finally, and as the Complaint makes clear, the Health Departments in question, and

3
law enforcement agencies, accept complaints from the public, meeting the third McKay factor.

823 F.3d 862, 867; Pl.’s Compl., RE#1, at ¶¶ 56-64.

B. The Governor’s Orders violate Free Speech and Assembly

The Governor begins by arguing that the Free Assembly clause is no more – that it is

contaminant with the Free Speech clause. citing Perry Educ. Ass'n v. Perry Local Educators'

Ass'n, 460 U.S. 37 (1983). They go on to argue that the orders at issue implicate conduct, not

speech, citing Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006).

They are wrong on both fronts. Perry, of course, deals with the forum analysis for government-

owned property. 460 U.S. 37. That is not what is applicable here.

Instead, we deal with the Government regulation of the home, which is entitled to

significantly higher First Amendment protection than even public forums. City of Ladue v.

Gilleo, 512 U.S. 43, 58 (1994) (“A special respect for individual liberty in the home has long

been part of our culture and our law” and “that principle has special resonance when the

government seeks to constrain a person's ability to speak there”). Indeed, “’the freedom of one's

house’ was one of the most vital elements of English liberty.” Payton v. New York, 445 U.S.

573, 597 (1980).

Defendant’s argument that the restriction in question governs only conduct and not

speech is, as a matter of Free Assembly law, wrong, but also belied by the fact that it bans only

“indoor social gatherings.”3 If one met and gathered to engage in speech in pursuit of a lawful

business for profit, that gathering, and that speech, is permissible. But meet to engage in a

3
Webster's Ninth New Collegiate Dictionary (1990) at 1118 defines “social" as "marked by or
passed in pleasant companionship with one's friends or associates," and at 508 defines
"gathering" is an "assembly, meeting." Cf. Gannett River States Publ'g Corp. v. City of Jackson,
866 So. 2d (2004) (distinguishing a social gathering with a business meeting).
4
meeting to discuss political matters, or have a political gathering, and it is not. For the same

reason, it is not content neutral.

Further, as the Governor explains, not all such gatherings are prohibited, such as those

held in professional event venues. (Memo, RE#16 at p. 19). He argues that this is because in

such event spaces, people will engage in social distancing and hygiene and is limited to 25

people per room. (Id.) “Risks of contagion turn on social interaction in close quarters; the virus

does not care why they are there.” Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020). “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 for similar lengths of time?” Id.

Moreover, the fact that someone can pay to rent a space, cannot foreclose the ability of

these Plaintiffs to do the same for purposes of their gatherings in their own homes and raises

constitutional issues regarding this “alternative.” See, also, Morse v. Republican Party, 517 U.S.

186 (1996) (cannot condition exercise of associational right on payment of fee).

The prohibition to gather in one’s home in a group to engage in expressive activity

inherently “infringes [on] the group's freedom of expressive association” and “affects in a

significant way the group's ability to advocate public or private viewpoints.” Boy Scouts of Am.

v. Dale, 530 U.S. 640, 648 (2000). Gathering in the home has long had special privacy

protections, from government, and from others, long recognized at law. See, also, U.S. Const.

Amend IV. To say that such a prohibition does not infringe on this ability is to ignore the U.S.

Supreme Court’s entire Fourth Amendment jurisprudence. Kyllo v. United States, 533 U. S. 27,

34 (2001).

But even more than that, the Supreme Court has recognized the First Amendment right to

congregate for peaceful purposes. Boos v. Barry, 485 U.S. 312, 331-332 (1988) (noting that a

5
ban on peaceful gatherings implicates the First Amendment and would be unconstitutional

because it would reach a substantial amount of constitutionally protected conduct).

The Governor next argues that a home is akin to a nonpublic forum. (Memo, RE#16 at

pp. 16-17). But, as explained above, the home is entitled to more protection than a public

forum, and the nonpublic forum analysis is not appropriate. Nor, as explained above, is the

order content neutral – if the gathering in the home is to discuss business for profit, the gathering

is permitted – if the gathering in the home is to hold a political gathering, it is prohibited.

Thus, even if the public forum analysis applied (and we submit it does not -- because the

Governor is banning speech and peaceable assembly in the home, strict scrutiny applies), even in

public forums, government may impose reasonable restrictions on the time, place, or manner of

protected speech only if the restrictions are (i) not based on content (content-neutral); (ii)

narrowly tailored to serve a significant governmental interest; and (iii) leave open ample

alternative channels for communication of the information. Clark v. Community for Creative

Non-Violence, 468 U.S. 288, 293 (1984); Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989).

We have addressed the lack of content neutrality. But the restriction at issue is also not

narrowly tailored under the public forum analysis. The Supreme Court has encouraged courts to

consider alternative approaches to achieving the government's goals when determining whether a

content-neutral regulation is actually narrowly tailored to advance a significant government

interest as the Constitution requires. McCullen v. Coakley, 573 U.S. 464, 486 (2014). The

tailoring requirement “does not simply guard against an impermissible desire to censor.” Id.

“The government may attempt to suppress speech not only because it disagrees with the message

being expressed, but also for mere convenience.” Id. “But by demanding a close fit between

6
ends and means, the tailoring requirement prevents the government from too readily

‘sacrific[ing] speech for efficiency.’” Id.

Although the Court has held that a content-neutral regulation "need not be the least

restrictive or least intrusive means of serving the government's interests," it has also explained

that "the government still may not regulate expression in such a manner that a substantial portion

of the burden on speech does not serve to advance its goals." Id. at 486. When considering

content-neutral regulations, the Court itself has examined alternative approaches to achieving the

government's objective to determine whether the government's chosen approach burdens

substantially more speech than necessary. Id. at 490-494.

That is, the government may not "forgo[] options that could serve its interests just as

well," if those options would avoid "substantially burdening the kind of speech in which

[Plaintiffs'] wish to engage." Id. at 490. "The point is not that [the government] must enact all or

even any of the proposed [alternative approaches].” Id. at 493. “The point is instead that the

[government] has available to it a variety of approaches that appear capable of serving its

interests, without excluding individuals from areas historically open for speech and debate." Id.

at 493-494. Thus, "[t]o meet the requirement of narrow tailoring [in the context of content-

neutral regulations], the government must demonstrate that alternative measures that burden

substantially less speech would fail to achieve the government's interests, not simply that the

chosen route is easier." Id. at 495.

That turns the analysis to the final factor: whether the challenged provision leaves open

ample alternative channels for communication of the information. Clark, 468 U.S. 288, 293;

Ward, 491 U.S. 781, 791. Once again, the Governor’s order utterly fails. Where a government

enactment forecloses an entire medium of public expression across the landscape of a particular

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community or setting, the prong is not met. Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

525-27 (1981) (Brennan, J., concurring).

The Supreme Court has been particularly hesitant to close off channels of communication

which provide individuals with inexpensive means of disseminating core political messages. See,

e.g., Gilleo, 512 U.S. 43, 54-56 (ordinance banning residential signs almost completely

foreclosed "a venerable means of communication that is both unique and important" and for

which there is no adequate substitute, particularly for persons of modest means”); Martin v. City

of Struthers, 319 U.S. 141, 146 (1943) ("Door to door distribution of circulars is essential to the

poorly financed causes of little people.").

The Supreme Court has stressed the importance of providing access "within the forum in

question." Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 655

(1981). "One is not to have the exercise of his liberty of expression in appropriate places

abridged on the plea that it may be exercised in some other place." Reno v. ACLU, 521 U.S. 844,

880 (1997). That forecloses the Governor’s resort to phone or video messaging. There is no

substitute for engaging in political speech within a gathering in the privacy of one’s home. And,

for that reason, there is no ability to close off the medium of expression by the Governor.

We would be remiss in not addressing narrow tailoring. The Governor has not addressed

whether less restrictive measures would suffice. Given his requirements for event venues of 25

people in a room, one would think such a less restrictive measure would be more appropriate.

C. The Substantive Due Process Clause is violated here applied to single household
gatherings
The Governor posits much of his defense here on his attempt to argue around the plain

language of his order. Beyond that, he raises Jacobson v. Massachusetts, 197 U.S. 11 (1904).

But we deal here with the right of families to live together, not with a requirement to be

8
vaccinated. Families that live under the same roof. And, while significant deference might be

warranted, even Jacobson and deference have their limits. Forcing parents to decide which child

cannot join the family at dinner is such a limit.

D. Freedom of Association is also violated

The right of association, also, is implicated where individuals associate to exercise other

First Amendment rights, including the group exercise of religion or of speech. Roberts v. United

States Jaycees, 468 U.S. 609, 617-618 (1984). In Roberts, the Supreme Court identified two

forms of constitutionally-protected associational rights: "freedom of intimate association" and

"freedom of expressive association." Id. The freedom of intimate association, which is applicable

to plaintiffs' claims here, stems from the necessity of protecting individuals' ability "to enter into

and maintain certain intimate human relationships [that] must be secured against undue intrusion

by the State because of the role of such relationships in safeguarding the individual freedom that

is central to our constitutional scheme." Id. Constitutionally protected intimate associations

include those "personal bonds [that] have played a critical role in the culture and traditions of the

Nation by cultivating and transmitting shared ideals and beliefs," and that "thereby foster

diversity and act as critical buffers between the individual and the power of the State." Id. at 618-

19.

The types of personal relationships that qualify for constitutional protection "attend the

creation and sustenance of a family" including marriage, childbirth, raising and educating

children, and cohabitation with relatives. Id. at 619; Johnson v. City of Cincinnati, 310 F.3d 484,

499 (6th Cir. 2002). In addition, courts have extended protection to personal friendships and non-

marital romantic relationships. Anderson v. City of LaVergne, 371 F.3d 879, 882 (6th Cir. 2004).

These kinds of personal relationships are characterized by "such attributes as relative smallness,

9
a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from

others in critical aspects of the relationship." Roberts, 468 U.S. at 620.

Both of these activities are implicated here, for both sets of Plaintiffs. The Everson and

Duvall Plaintiffs have plead conduct that does violate the order, despite the Governor’s attempts

to distance himself from the plain language of his order now. Watts and Wheatley involve

gatherings at their home for political gatherings, which involve both expressive, and intimate

association, where the Sixth Circuit has recognized personal friendships as being within the

ambit of protection. Anderson, 371 F.3d 879, 882.

E. The Executive Orders constitute an attack on the family, and Jacobson is not
applicable
The Governor re-iterates his attempt to redraft-through-argument the plain language of

his Executive Order. The Governor next claims that he can prohibit children from dining with

their parents. (Memorandum, RE#15, at 23). He claims that the parents must meet and gather

with their children outside. (Id. at p. 24). Can any government require parents to parent their

children outside in the cold, in the middle of winter? To ask the question is to answer it.

The most on-point case, of course, is Moore v. City of East Cleveland, 431 U.S. 494

(1977). There, as here, the Court observed that “when the government intrudes on choices

concerning family living arrangements, this Court must examine carefully the importance of the

governmental interests advanced and the extent to which they are served by the challenged

regulation.” Id. at 499.

The Governor justifies his restrictions with stopping the spread of COVID-19. But it is

difficult – in fact impossible – to discern how prohibiting a family that is otherwise living day-in,

and day-out together from gathering for dinner, or even a family meeting, will stop the spread of

COVID-19, when one considers regular family meetings in the course of living life. Parents help

10
their children with homework, meet with them regularly, help them with problems, and enjoy

their companionship throughout daily life. And, while stopping the spread of COVID-19 may

well be a laudable goal, it is impossible to discern how prohibiting parent and child from dining

together in a large family that otherwise lives together meets the strict scrutiny standard

advanced in Moore, 431 U.S. 494. In short, it does not.

F. The remaining injunction factors favor the Plaintiffs

The Governor finishes by arguing the equities. But clear Sixth Circuit law establishes

that the remaining factors are met where constitutional rights are infringed upon, and so, in these

cases, the likelihood of success factor is dispositive. H.D.V. - Greektown, LLC v. City of Detroit,

568 F.3d 609 (6th Cir. 2009) (abuse of discretion not to grant preliminary injunction where

constitutional violation found); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020); Maryville

Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020).

G. Conclusion

The preliminary injunction should be granted.

Respectfully submitted,

/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
859/486-6850 (v)
513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com

/s/Thomas Bruns_____________
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com

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 513-312-9890

/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

CERTIFICATE OF SERVICE

I certify that I have served a copy upon all Counsel of Record by serving same in the Court’s
CM/ECF System this 2 day of December, 2020.

/s/ Christopher Wiest___________

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