Motion Amended Complaint Mask Mandate

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. :
GOVERNOR ANDREW BESHEAR, :

in his official and individual capacities,
:
Defendant
PLAINTIFFS’ EMERGENCY MOTION FOR LEAVE TO FILE SECOND VERIFIED

AMENDED AND SUPPLEMENTAL COMPLAINT AND TO REINSTUTE THIS
MATTER ON THE COURT’S ACTIVE DOCKET
Plaintiffs, by and through Counsel, move this Court for leave to file an Amended
Supplemental Complaint under FRCP 15(d). A memorandum in support is attached, along with
the proposed Amended Supplemental Complaint, and a proposed order has been tendered
herewith. As the emergency temporary restraining order and preliminary injunction motion that
are also being tendered herewith indicate, this matter constitutes an emergency, because it
involves a recent order issued by the Governor, that violates the Constitution, and these
Plaintiffs’ rights.
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)
[email protected]
/s/Thomas Bruns_____________
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
[email protected]
513-312-9890
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 13 day of August, 2021, by serving same via the Court’s CM/ECF system.

PLEASANT VIEW BAPTIST CHURCH, et. al. : Case No. 2:20-cv-00166
Plaintiffs :
v. :
GOVERNOR ANDREW BESHEAR, :

in his official and individual capacities,
:
Defendant
MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR

LEAVE TO FILE AMENDED AND SUPPLEMENTAL
I. Facts
Plaintiffs filed the within action in November, 2020, following the Governor shutting
down private religious schools. [RE#1]. Litigation followed, in this and parallel cases, and, at
present, leave to amend the complaint is pending. Until earlier this week, this case focused on
the past actions of the Defendant.
On August 10, 2021, immediately prior to the start of the school year, Governor Beshear
issued yet another order, Executive Order 2021-585. In it, the Governor requires face masking
on children, as young as two years old, in all “public and private preschool, Head Start,
elementary, elementary, middle, and high school (preschool through grade 12) in Kentucky,
including but not limited to inside of vehicles, used for transportation such as school buses,
regardless of vaccination status.” (Pl.’s Tendered Second Amended Verified Compl., hereinafter
“2 Ver. Compl.,” ¶36). That order is attached to the tendered Second Amended Verified
Complaint at Exhibit A. Id. at ¶37.
But what the order gives in terms of blanket mandates people in such schools and
1
preschools, including mandates upon the Plaintiffs herein, it also takes away, via a number of
secular exceptions, including for: (i) people who are sleeping; (ii) people with disabilities; (iii)
people who are deaf or hard of hearing, or people actively communicating with such people; (iv)
people seated and actively consuming food or beverages; (v) people obtaining a service that
requires temporary removal of the face covering. (2 Ver. Compl., ¶38). Despite these secular
exceptions, there are no exceptions for religion, religious practices, or religious schools. (Id.).
In the same vein, the order only applies to schools, including private religious schools,
and so the Governor at the same time is permitting a number of secular exceptions and
gatherings of children. (2 Ver. Compl., ¶39). It permits, for instance, Sunday school to be
conducted in the same classrooms, with the same children. Id. It also permits, for instance,
group gatherings at exercise and other indoor facilities where children gather with adults in close
proximity, gatherings in public auditoriums of children who can then sing and project, gatherings
of children at restaurants, and a variety of other secular activities. Id. Children can gather in
large numbers at the local bowling alley, or arcade, unmasked, in close proximity, but not in the
classroom.
Most of the Plaintiffs are churches, religious schools, and pastors, located throughout
Kentucky. (2 Ver. Compl., ¶¶ 40-43). They are mostly small religious schools, located in the
same building as the churches that host them. Id. All of them provide instruction by the school,
as part of the sincerely held religious beliefs of the congregants of the church. Id. All of them
sincerely believe in effective in person instruction as part of those beliefs. Id. And all of them
have implemented, at significant cost, COVID-19 mitigation measures including, without
limitation, social distancing, sanitation, temperature checks, partitions, lunch room procedures,
encouraging (but not requiring) mask wearing, and other CDC recommended control measures.
2
Id. Further, there absolutely no evidence of any community spread of COVID-19 within the
schools. Id.
Further, and not to be understated, the prevalence of vaccines, available to every adult
and child age 12 and older, which have been proven to be effective in preventing severe
symptoms, the rarity of serious complications or death for children, and the existence of other
measures, have led to the school only recommending, but not requiring masking for its adult staff
and children. Id. There are five reasons for this: (i) first, it has been the experience of these
Plaintiffs that educational services are best delivered and communication best facilitated face to
face, and that method the best way to deliver and facilitate the church’s and school’s religious
mission; (ii) second, the schools have faced certain challenges with respect to masking of
children, particularly in the youngest grades, grades K-3, mask enforcement detracts from
classroom experience, (iii) numerous parents, in all of the schools, have objected to all day mask
wearing and are ready to withdraw their children as a result, jeopardizing the sincerely held
religious beliefs of the Plaintiffs to provide a religious education to children in furtherance of
their faith and ultimately the ability of the school to continue its operations; (iv) the science is
not settled that mask wearing, particularly for cloth masks, is in any way effective;1 and (v) the
schools, and churches believe that there are effective mechanisms to protect their staff and
children without mandating face masking. Id. The schools thus all leave it to the parents to
ultimately decide what is best for their children as to the face masking issue. Id.
For the Deters Plaintiffs, who have young children enrolled in the Covington, Kentucky
Diocese schools, they too have serious objections, based on sincerely held religious beliefs, that
1https://www.nature.com/articles/s41598-020-72798-7 (last visited 8/13/2021);

https://associationofanaesthetists-publications.onlinelibrary.wiley.com/doi/10.1111/anae.15475
(last visited 8/13/2021); https://www.sciencedirect.com/science/article/pii/S2452199X20301481
(last visited 8/13/2021).
3
mirror those of the churches and schools. (2 Ver. Compl., ¶ 44). The Diocese had a mask-
optional-but-encouraged practice prior to the mandate, for many of the same reasons as those
articulated by the other Plaintiffs, but now feel compelled to comply with the Governor’s edict.
Id.
Collectively, the preceding Plaintiffs, the “Christian School Plaintiffs” would be unable
to fully fulfill their religious purpose and mission—or implement their religious educational
philosophy—and their religious beliefs would be substantially burdened, if the Governor’s mask
mandate were enforced against the schools, impairing the instruction of the children. (2 Ver.
Compl., ¶ 45).
Thus, Plaintiffs seek leave to file a supplemental pleading (attached), incorporating these
facts, and re-instituting their claims and this case for injunctive relief.
II. Law and Argument
FRCP 15(d) provides, in relevant part:
(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just
terms, permit a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented. The
court may permit supplementation even though the original pleading is defective in
stating a claim or defense. The court may order that the opposing party plead to the
supplemental pleading within a specified time.
Leave to amend pleadings is to be freely permitted "when justice so requires." Fed. R.
Civ. P. 15(a); Hodak v. Madison Capital Mgmt., 2010 U.S. Dist. LEXIS 977 (KYED 2010). "In
the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility
of the amendment, etc., the leave should, as the rules require, be 'freely given.'" Foman v. Davis,
371 U.S. 178, 182 (1962).
4
Where the supplemental complaint involves the same parties, and related actions, leave to
file should be granted. Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 625
(6th Cir. 2016). The standards for such a motion were discussed in Brian A. v. Bredesen, 2009
U.S. Dist. LEXIS 112890 (MDTN 2009). "A supplemental pleading differs from an amended
pleading in two respects: an amended pleading relates to matters which occurred prior to the
filing of the original pleading and entirely replaces such pleading; a supplemental pleading
addresses events occurring subsequent to the initial pleading and adds to such pleading." Id.,
citing Habitat Education Center, Inc. v. Kimbell, 250 F.R.D. 397, 401 (E.D. Wis. 2008).
"A supplemental pleading promotes as complete an adjudication of the dispute between
the parties as possible." Id., citing Habitat, 250 F.R.D. at 401. "It is a tool of judicial economy
and convenience which serves to avoid the cost, delay and waste of separate actions which must
be separately tried and prosecuted." Id.
"A supplemental pleading may include new facts, new claims, new defenses, and new
parties." Id. "Such events need not arise out of the same transaction or occurrence as the original
claim, so long as they bear some relationship to the original pleading." Id. "In considering
whether to allow a plaintiff to supplement its complaint, the Court should consider (1) undue
delay in filing the motion; (2) lack of notice to adverse parties; (3) whether the movant is acting
in bad faith or with a dilatory motive; (4) failure to cure deficiencies by previous amendments;
(5) the possibility of undue prejudice to adverse parties; and (6) whether the amendment is
futile." Id., citing Bromley v. Michigan Education Ass'n-NEA, 178 F.R.D. 148, 154 (E.D. Mich.
1998).
Plaintiffs have moved for leave because subsequent developments, and a subsequent
order, now infringes on their religious liberties again. There is no lack of notice, because one
5
would think, given his extensive experience with Free Exercise litigation, that the Governor is
well aware what his mandate on private religious schools would trigger. Nor is there any bad
faith or dilatory motive: these Plaintiffs have an interest in a prompt adjudication given the new,
ongoing, impairment on their rights. This Complaint does not deal with any prior court findings
of deficiencies in the complaint, and so the fifth factor is not at issue. And the amendment is not
futile.
III. CONCLUSION
Leave, therefore, should be granted.

513/257-1895 (c)
859/495-0803 (f)
[email protected]
[email protected]
513-312-9890
I certify that I have served a copy upon all Counsel of Record by serving same in the Court’s
CM/ECF System this 13 day of August, 2021, by serving same via the Court’s CM/ECF system.
6
PLEASANT VIEW BAPTIST CHURCH, : Case No. 2:20-cv-00166

PLEASANT VIEW BAPTIST SCHOOL,
PASTOR DALE MASSENGALE, :
MARYVILLE BAPTIST CHURCH, :

MICAH CHRISTIAN SCHOOL,
PASTOR JACK ROBERTS, :
MAYFIELD CREEK BAPTIST CHURCH, :

MAYFIELD CREEK CHRISTIAN SCHOOL,
PASTOR TERRY NORRIS :
FAITH BAPTIST CHURCH, :

FAITH BAPTIST ACADEMY,
PASTOR TOM OTTO, :
WESLEY DETERS, MITCH DETERS, :

On behalf of themselves and their minor
children MD, WD, and SD, :
Plaintiffs :
v.
:
ANDREW BESHEAR
In his official and individual capacities :
PLAINTIFFS’ SECOND VERIFIED AMENDED AND SUPPLEMENTAL COMPLAINT

FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF, AND DAMAGES WITH JURY
DEMAND ENDORSED HEREON
Plaintiffs, Pleasant View Baptist Church, Pleasant View Baptist School, Pastor Dale
Massengale, Maryville Baptist Church, MICAH Christian School, Pastor Jack Roberts, Mayfield
Creek Baptist Church, Mayfield Creek Christian School, Pastor Terry Norris, Faith Baptist
Church, Faith Baptist Academy, Pastor Tom Otto, and Wesley Deters, Mitch Deters, on behalf of
themselves and their minor children, MD, WD, and SD, on behalf of himself and his minor
children BM, EM, and HM, (collectively the “Christian School Plaintiffs”) for their Second
1
Amended Complaint for Declaratory Relief and Damages (the “Complaint”), state and allege as
follows:
INTRODUCTION
1. This action involves the deprivation of Plaintiffs’ well-established First and Fourteenth
Amendment rights by the official capacity Defendant and individual capacity Defendant
named herein. Specifically, this action is in response to the unconstitutional actions by the
official capacity Defendant herein, first in selectively shutting down all private and parochial
schools in the Commonwealth due to COVID-19 (the disease caused by the Coronavirus),
while leaving open numerous similar secular activities. Most recently, the official capacity
Defendant unlawfully implemented a discriminatory mandate upon these same institutions
requiring children as young as two years old to wear face coverings.
JURISDICTION AND VENUE
2. Subject matter jurisdiction over the claims and causes of action asserted by Plaintiffs in this
action is conferred on this Court pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1988, 28 U.S.C.
§1331, 28 U.S.C. § 1343, 28 U.S.C. 1367, 28 U.S.C. §§ 2201 and 2202, and other applicable
law.
3. Venue in this District and division is proper pursuant to 28 U.S.C. §1391 and other
applicable law, because much of the deprivations of Plaintiffs’ Constitutional Rights
occurred in counties within this District and division, within Kentucky, and future
deprivations of their Constitutional Rights are threatened and likely to occur in this District.
Furthermore, the first named Defendant is located in this division.
2
The Defendant, his activities and COVID-19 orders
4. Defendant Hon. Andrew Beshear is the duly elected Governor of Kentucky. He is sued in his
individual and official capacities.
5. Among other things, Governor Beshear enforces and is charged with the enforcement or
administration of Kentucky’s laws under KRS Chapter 39A, KRS Chapter 214 and KRS 220,
including the orders and actions complained of herein.
6. In March, 2020 and in the weeks that followed, Governor Beshear issued a number of
restrictions related to COVID-19.
7. On March 19, 2020, Governor Beshear implemented an outright ban on religious gatherings
across the state. Specifically, Governor Beshear, acting through Secretary Eric Friedlander of
the Cabinet for Health and Family Services, issued an order stating that “[a]ll mass
gatherings are hereby prohibited.””, while simultaneously creating purely secular exceptions.
8. InSpecifically, in the March 19, 2020 Order, Governor Beshear initially, and broadly,
described the scope of his prohibition as including “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.”
9. Thus, the order, while initially very broad, specifically banned “faith-based” gatherings by
name. The order did not define mass gatherings merely based on the number of people
coming together, nor did it narrow its prohibition to the kind of indoor or closed-space
gatherings that increase the risk of community transmission of the virus. Rather, Governor
Beshear’s March 19, 2020 Order initially, and broadly, banned any activity “that brings
3
together groups of individuals,” which specifically included any and all “faith-based”
gatherings.
10. However, in an exercise of sophistic and unconstitutional word play, and as a result of the
Defendant’s unconstitutional value judgment, the same initially broad order carved out
purely secular activities from the scope of its prohibition. Specifically, the order went on to
state that “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.” In other words, it carved out from its application certain purely
secular “mass gatherings.”
11. In a continuation of sophistic and unconstitutional word play, the order also stated that a
mass gathering “does not include typical office environments, factories, or retail or grocery
stores where large numbers of people are present, but maintain appropriate social
distancing.”.
12. Thus, under the March 19, 2020 Order, mass gatherings with a faith-based purpose were
expressly singled out for prohibition, while mass gatherings of secular organizations and
their activities were not—even when those secular activities involved large numbers of
people.
13. On Good Friday, two days before Easter Sunday, Governor Beshear held his daily press
conference. During his presentation, Governor Beshear announced that his administration
would be taking down the license plate numbers of any person attending an in-person church
service on Easter Sunday. Then, he said, local health officials would be contacting each
person and requiring a mandatory 14-day quarantine. Under Kentucky law, violation of such
an order was previously a misdemeanor punishable by criminal prosecution.
4
14. On Easter Sunday, Governor Beshear acted on his unconstitutional threat. Kentucky State
Police troopers, acting on Governor Beshear’s orders, traveled to the Maryville Baptist
Church to record license plate numbers of those attending the church’s Easter service. The
troopers also provided churchgoers with written notices that their attendance at the service
constituted a criminal act. Afterward, the vehicle owners received letters ordering them to
self-quarantine for 14 days or else be subject to further sanction.
In two stunning Saturday Injunctions Pending Appeal, the Sixth Circuit repeatedly
rebuked Governor Beshear’s religious discrimination, creating clearly established law
on the issue. Further, the Governor infringed on other fundamental liberties
15. On Saturday, May 2, 2020, and as a result of an emergency appeal, the Sixth Circuit enjoined
Governor Beshear from prohibiting drive-in church services so long as the churches adhered
to the same public health requirements mandated for “life-sustaining” entities. See Maryville
Baptist Church v. Beshear, 957 F.3d 610, 616 (6th Cir. 2020) (per curiam).
16. In reaching that conclusion, the Sixth Circuit observed that “[t]he Governor’s orders have
several potential hallmarks of discrimination.” Id. at 614. For example, the orders prohibited
faith-based mass gatherings by name. Id. And they contained broad exceptions that
inexplicably allowed some groups to gather while prohibiting faith-based groups from doing
so. Id.
17. The court further noted that:
[R]estrictions 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 is it safe to wait in a car for a liquor store to open but dangerous
to wait in a car to hear morning prayers? 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.
18. One week later, on Saturday, May 9, 2020, again as a result of an emergency appeal, the
Sixth Circuit again enjoined Governor Beshear. Roberts v. Neace, 958 F.3d 409 (6th Cir.
5
2020) (per curiam), which extended Maryville to re-open in-person worship in the
Commonwealth.
19. Roberts contains a number of observations and findings that are particularly relevant here:
There are plenty of less restrictive ways to address these public-health issues. Why not insist
that the congregants adhere to social-distancing and other health requirements and leave it at
that—just as the Governor has done for comparable secular activities? Or perhaps cap the
number of congregants coming together at one time? If the Commonwealth trusts its people
to innovate around a crisis in their professional lives, surely it can trust the same people to do
the same things in the exercise of their faith. The orders permit uninterrupted functioning of
“typical office environments,” R. 1-4 at 1, which presumably includes business meetings.
How are in-person meetings with social distancing any different from in-person church
services with social distancing? Permitting one but not the other hardly counts as no-more-
than-necessary lawmaking.
Sure, the Church might use Zoom services or the like, as so many places of worship have
decided to do over the last two months. But who is to say that every member of the
congregation has access to the necessary technology to make that work? Or to say that every
member of the congregation must see it as an adequate substitute for what it means when
“two or three gather in my Name,” Matthew 18:20, or what it means when “not forsaking the
assembling of ourselves together,” Hebrews 10:25; see also On Fire Christian Ctr., Inc. v.
Fischer, No. 3:20- CV-264-JRW, --- F. Supp. 3d ---, 2020 WL 1820249, at *7–8 (W.D. Ky.
Apr. 11, 2020). Id. at 415.
20. The court thus again enjoined the Governor, holding that “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.
21. One day earlier, this Court granted a temporary restraining order stopping Governor Beshear
from restricting religious practices. In Tabernacle Baptist Church of Nicholasville, Inc. v.
Beshear, 459 F. Supp. 3d 847 (E.D. Ky. 2020), this Court concluded that “[e]ven viewed
through the state-friendly lens of Jacobson [v. Massachusetts], the prohibition on religious
services presently operating in the Commonwealth is ‘beyond what was reasonably required
for the safety of the public.’” Id. at 854–55 (citation omitted).
6
22. On October 19, 2020, the Sixth Circuit reconfirmed, for the Governor and the public at large,
that, when it comes to Maryville and Roberts, “each [is] still binding in the circuit.”
Maryville Baptist Church, Inc. v. Beshear, 977 F.3d 561 (6th Cir. 2020).
23. On November 25, 2020, the U.S. Supreme Court created clearly established case law, in
Roman Catholic Diocese v. Cuomo, 208 L. Ed. 2d 206 (2020), that creating categories of
favored and unfavored classes of activities during COVID-19, where religious activities are
not treated as a favored class, violates the law.
24. As demonstrated below, Governor Beshear’s violations of the Constitution continued.
The First Amendment and the November 18, 2020 Orders
25. “[E]ducating young people in their faith, inculcating its teachings, and training them to live
their faith are responsibilities that lie at the very core of the mission of a private religious
school.” Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049, 2064 (2020).
Religious education and religious worship are inseparable. Indeed, “[r]eligious education is
vital to many faiths practiced in the United States.” Id. For example, “[i]n the Catholic
tradition, religious education is ‘intimately bound up with the whole of the Church’s life.’”
Id. at 2065 (quoting Catechism of the Catholic Church 8 (2d ed. 2016)). And, “Protestant
churches, from the earliest settlements in this country, viewed education as a religious
obligation.” Id. “The contemporary American Jewish community continues to place the
education of children in its faith and rites at the center of its communal efforts.” Id. In Islam,
the importance of education “is traced to the Prophet Muhammad, who proclaimed that ‘[t]he
pursuit of knowledge is incumbent on every Muslim.’” Id. “The Church of Jesus Christ of
Latter-day Saints has a long tradition of religious education,” and Seventh-day Adventists
“trace the importance of education back to the Garden of Eden.” Id. at 2066. “Since the
7
founding of this nation, religious groups have been able to ‘sit in safety under [their] own
vine and figtree, [with] none to make [them] afraid.’” Tree of Life Christian Schools v. City
of Upper Arlington, 905 F.3d 357, 376 (6th Cir. 2018) (Thapar, J., dissenting) (quoting Letter
from George Washington to Hebrew Congregation in Newport, R.I. (Aug. 18, 1790)). In
other words, the Constitutional right to attend religious instruction and education is one of
the Nation’s “most audacious guarantees.” On Fire Christian Ctr., Inc. v. Fischer, 453 F.
Supp. 3d 901, 906 (W.D. Ky. 2020).
26. In the face of this well-established law, on November 18, 2020, Governor Beshear issued an
executive order, Executive Order 2020-969.
27. Executive Order 2020-969 (“School Ban”) prohibited and criminalized in-person instruction
for all schools, including private, religious schools, in grades K-12. Consequently, this
School Ban unconstitutionally infringed upon the rights of certain of these Plaintiffs, who
include religious education and worship services as part of their educational mission, which
is based upon their sincerely held beliefs.
28. While unconstitutionally banning in-person religious education and instruction, the Governor
again permitted a number of comparable secular activities of varying sizes.
29. The Governor permitted childcare programs to continue, including limited duration child care
centers,1 which were permitted to have children in group sizes of 15, and, depending on the
space of the facility, hundreds of children. Just as schools do, these facilities provided meals
for children, and instructed children in classroom set ups identical to schools.2 These centers
1
A limited duration center was a “pop up” center, often hosted by local YMCA’s, were
originally set up for the children of “essential” healthcare workers, first responders, and others.
They have had favored status for months, and, with the recent school shutdown, that favored
status remains even more apparent.
2
https://apps.legislature.ky.gov/law/kar/922/002/405E.pdf (last visited 11/20/2020).
8
were permitted to, and did, provide secular education instruction as part of their
programming, including assisting children with school assignments.
30. Governor Beshear permitted unlimited sizes of persons to assemble in factories and
manufacturing, with social distancing, and, indeed, classroom instruction occurred in these
settings.3
31. Governor Beshear permitted movie theaters to operate, with children in attendance, at 50%
capacity, gyms and fitness centers to operate at 33% capacity, auctions to operate at 50%
capacity indoors, and unlimited capacity outdoors, gas stations, grocery stores, retail
establishments, gaming facilities, and other facilities to remain open.4
32. Most of the aforementioned executive orders referenced K.R.S. 39A and/or K.R.S. Chapter
214 as authority for their promulgation.
33. At the time, both of those Chapters contained criminal penalties, such as K.R.S. 39A.990,
establishing as a Class A misdemeanor any violations of orders issued under that Chapter,
and K.R.S. 220.990, which generally provides as a Class B misdemeanor for any violations
of orders under that Chapter. K.R.S. 39A.190 gives police officers authority to “arrest
without a warrant any person violating or attempting to violate in the officer’s presence any
order or administrative regulation made pursuant to” KRS Chapter 39A.
3
https://govsite-
assets.s3.amazonaws.com/s47CFNaSK6YhJMGPHBgB_Healthy%20at%20Work%20Reqs%20-
%20Manufacturing%20Distribution%20Supply%20Chain%20-
%20Final%20Version%203.0.pdf (last visited 11/20/2020).
4
https://govsite-assets.s3.amazonaws.com/0iTtfR0ET2GFa05zMWie_2020-7-1%20-
%20Healthy%20at%20Work%20Reqs%20Movie%20Theaters%20-
%20Final%20Version%203.0.pdf (last visited 11/20/2020)
9
34. Amazingly, the very day after Governor Beshear issued Executive Order 2020-969, which on
November 23 closed, and criminalized attendance at, all in-person instruction at all public
and private elementary, middle, and high schools in the Commonwealth, the director of the
CDC announced “[t]he truth is, for kids K-12, one of the safest places they can be, from our
perspective, is to remain in school,” and that it is “counterproductive . . . from a public health
point of view, just in containing the epidemic, if there was an emotional response, to say,
‘Let’s close the schools.’”5
35. Houses of worship were permitted to continue to operate and could conduct Bible studies any
day of the week in enclosed spaces. They could also hold Sunday school on their premises in
enclosed locations. But, Governor Beshear refused to allow religious schools to conduct
nearly identical activities in, at least for some of these Plaintiffs, the same exact space.
The most recent mask mandate
36. On August 10, 2021, immediately prior to the start of the school year, Governor Beshear
issued yet another order, Executive Order 2021-585. In it, the Governor requires face
masking on children, as young as two years old, in all “public and private preschool, Head
Start, elementary, elementary, middle, and high school (preschool through grade 12) in
Kentucky, including but not limited to inside of vehicles, used for transportation such as
school buses, regardless of vaccination status.”
37. A true and accurate copy of this order is attached as Exhibit A.
5
https://www.washingtonexaminer.com/news/school-is-safest-place-for-kids-to-be-cdc-director-
says (last visited 11/20/2020).
https://www.c-span.org/video/?c4924557/cdc-director-redfield-data-supports-face-face-learning-
schools&fbclid=IwAR1Kp3HKvUhZu8CJ1F8tGSISsMtnP0zNDJ3598kSC7sYffb6kDjhKS90zC
0 (last visited 11/20/2020) (CDC Director confirming that all existing data demonstrates K-12
schools are not transmission pathways for the virus, in part due to safety protocols in place in
schools).
10
38. In an example of unconstitutional déjà vu all over again, while the order is a blanket mandate
applying to all people in such schools and preschools, including applying fully to the
Plaintiffs herein, it contains a number of secular exceptions, including for: (i) people who are
sleeping; (ii) people with disabilities; (iii) people who are deaf or hard of hearing, or people
actively communicating with such people; (iv) people seated and actively consuming food or
beverages; and (v) people obtaining a service that requires temporary removal of the face
covering. Despite these secular exceptions, there are no exceptions for religion, religious
practices, or religious schools.
39. To be clear, the order only applies to schools, including private religious schools, while at the
same time, the Governor permits a number of overtly religious and purely secular exceptions,
where gatherings of children also occur. It permits, for instance, Sunday school to be
conducted in the same classrooms, with the same children. It also permits, for instance,
group gatherings at exercise and other indoor facilities where children gather with adults in
close proximity, gatherings of children in public auditoriums who can then sing or otherwise
project their voices, gatherings of children at restaurants, at crowded bowling alleys or
arcades, and a variety of other secular activities.
The Plaintiffs, and their Protected Activities
40. Plaintiffs, Pleasant View Baptist Church, Pleasant View Baptist School, Pastor Dale
Massengale operate and run a church and school in McQuady, Breckenridge County,
Kentucky. The school is an extension of the church and ministry and, as part of the school
curriculum, the children have religious education and chapel service.
11
a. Approximately 70 children attend the school, which offers classes in grades K-12.
Attendance at the school by the children and the instruction provided by the school is
part of the sincerely held religious beliefs of the congregants of the church.
b. Among those beliefs is the importance of in-person instruction.
c. Further, and for the avoidance of all doubt, the school has implemented, at significant
cost, COVID-19 mitigation measures including, without limitation, social distancing,
sanitation, temperature checks, partitions, lunch room procedures, encouraging (but
not requiring) mask wearing, and other CDC recommended control measures.
d. Further, there is absolutely no evidence of any community spread of COVID-19
within the school.
e. Further, and not to be understated, the prevalence of vaccines, available to every adult
and child age 12 and older, which have been proven to be effective in preventing
severe symptoms, the rarity of serious complications or death for children, and the
existence of other measures, have led to the school only recommending, but not
requiring, masking for its adult staff and children. There are five reasons for that: (i)
first, it has been the experience of these Plaintiffs that educational services are best
delivered and communication best facilitated face to face, and that method is the best
way to deliver and facilitate the church’s and school’s religious mission; (ii) second,
the school has faced certain challenges with respect to masking of children,
particularly in the youngest grades, grades K-3, and mask enforcement detracts from
classroom experience, (iii) numerous parents have objected to all day mask wearing
and are ready to withdraw their children as a result, jeopardizing the sincerely held
religious beliefs of the Plaintiffs to provide a religious education to children in
12
furtherance of their faith and ultimately the ability of the school to continue its
operations; (iv) the science is not settled that mask wearing, particularly for cloth
masks, is in any way effective; and (v) the school and church believe that there are
effective mechanisms to protect their staff and children without mandating face
masking. The school thus leaves it to the parents to ultimately decide what is best for
their children as to the face masking issue.
41. Plaintiffs Maryville Baptist Church, MICAH Christian School, and Pastor Jack Roberts
operate and run a church and school in Hillview, Bullitt County, Kentucky. The school is an
extension of the church and ministry and, as part of the school curriculum, the children have
religious education and chapel service.
within the school.
13
masks, is in any way effective; and (v) the school and church believe that there are
42. Plaintiffs Mayfield Creek Baptist Church, Mayfield Creek Christian School, and Pastor Terry
Norris operate and run a church and school in Bardwell, Carlisle County, Kentucky. The
school is an extension of the church and ministry and, as part of the school curriculum, the
children have religious education and chapel service.
14
within the school.
masks, is in any way effective; and (v) the school, and church believe that there are
15
43. Plaintiffs Faith Baptist Church, Faith Baptist Academy, Pastor Tom Otto operate and run a
church and school in Bardwell, Carlisle County, Kentucky. The school is an extension of the
church and ministry and, as part of the school curriculum, the children have religious
education and chapel service.
within the school.
16
particularly in the youngest grades, grades K-3, mask enforcement detracts from
masks, is in any way effective; and (v) the school, and church believe that there are
44. Plaintiffs Wesley Deters, Mitch Deters, on behalf of themselves and their minor children,
MD, WD, and SD bring suit for the private, parochial school shutdown, and subsequent mask
mandate, as well. The children (two of whom are in the second grade or younger) attend
parochial schools within the Covington Diocese of the Catholic Church. The Diocese
previously indicated that it would keep the children in-person for instruction but-for the prior
challenged school shutdown orders and, most recently, has indicated that it would implement
Executive Order 2021-585 only because it is a mandate of the Governor and, but for that
mandate, would let parents make the choice.
17
a. Tens of thousands of students attend these diocesan schools. The diocesan schools
are an extension of the church and ministry and, as part of the schools’ curriculum,
the children have religious education and chapel service.
b. Attendance at the schools by the children and the instruction provided by the schools
is part of the sincerely held religious beliefs of the members of the church, including
the Deters Plaintiffs.
c. Among those beliefs is the importance of in-person instruction. Further, and for the
avoidance of all doubt, the school has implemented, at significant cost, COVID-19
mitigation measures including, without limitation, social distancing, sanitation,
temperature checks, partitions, lunch room procedures, and, prior to the Governor’s
mandates, encouraging (but not requiring until the Governor mandated it) mask
wearing, and other CDC recommended control measures.
within the school.
existence of other measures, have led to the diocese to previously only
recommending, but not requiring, masking for its adult staff and children. The Deters
Plaintiffs raise multiple objections to the mask mandate and its impingement on their
sincerely held religious beliefs: (i) first, it has been the experience of these Plaintiffs
that educational services are best delivered and communication best facilitated face to
face, and that method is the best way to deliver and facilitate the church’s and
18
school’s religious mission; (ii) second, the school, and the Deters, have faced certain
challenges with respect to masking of children, particularly in the youngest grades,
grades K-3, and mask enforcement detracts from classroom experience, (iii) the
science is not settled that mask wearing, particularly for cloth masks, is in any way
effective; and (iv) the school, and church believed that there are effective mechanisms
to protect their staff and children without mandating face masking, having previously
made it optional prior to the Governor’s mandate.
45. Collectively, the preceding Plaintiffs, the “Christian School Plaintiffs” would be unable to
fully fulfill their religious purpose and mission—or implement their religious educational
philosophy—and their religious beliefs would be substantially burdened, if the schools were
prohibited from offering in-person, in-class instruction to their students, or if the Governor’s
mask mandate were enforced against the schools, impairing the instruction of the children.
Additional Allegations Concerning Standing
46. Governor Beshear is empowered, charged with, and authorized to enforce and carry out
Kentucky’s emergency power laws and health related laws under K.R.S. Chapter 39A, and
KRS Chapters 221 and 214. Moreover, Governor Beshear actually does enforce and
administer these laws.
47. Governor Beshear, himself, has directed the enforcement of his COVID-19 related orders
including, without limitation, orders relating to religion. Governor Beshear has directed the
Kentucky State Police and other law enforcement agencies to enforce his orders, and they
have done so. Governor Beshear has issued, and continues to issue, directives to the Local
Health Departments to direct their enforcement activities as explained herein.
19
48. As for Maryville Baptist Church and Pastor Roberts, they have been threatened with criminal
prosecution by State Police dispatched by the Governor.
49. Plaintiffs, having been personally threatened with enforcement as explained herein, have
demonstrated that Governor Beshear has an intention and has directed the threat of
enforcement of the challenged orders.
50. Furthermore, and in furtherance of the enforcement threats, any teachers instructing at private
schools have been threatened publicly by the Kentucky Commissioner of Education and his
spokesman with having their teaching certificates subject to discipline if they teach in
contravention to Governor Beshear’s orders.6
COUNT I – Violation of the Free Exercise Clause of the First Amendment
51. The First Amendment of the Constitution protects the “free exercise” of religion.
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) (“The very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them as legal principles to be applied by
the courts...[such as the] freedom of worship and assembly.”). The Free Exercise Clause was
incorporated against the states in Cantwell v. Connecticut, 310 U.S. 296 (1940).
52. 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
6
https://www.courier-journal.com/story/news/education/2020/11/18/kentucky-restrictions-k-12-
classes-go-virtual-rest-semester/3768641001/ (last visited 11/21/2020).
20
cases and the government bears the burden of meeting this exceptionally demanding
standard. Id. “[T]he minimum requirement of neutrality is that a law not discriminate on its
face.” Id.at 533.
53. Governor Beshear’s prior prohibition of any and all in-person private religious school
instruction, in the name of fighting Covid-19, was not generally applicable. There were
numerous secular exceptions to the Order, as explained herein. Executive Order 2020-969
was neither neutral nor generally applicable.
54. Governor Beshear’s mask mandate in Executive Order 2021-585 is likewise not neutral nor
generally applicable. There are numerous secular exceptions to the Order, as explained
herein. There are also some religious exceptions, but not for Plaintiff’s activities herein.
55. Governor Beshear’s orders are not narrowly tailored, they substantially burden religious
exercise, are arbitrary and are underinclusive toward some overtly religious and some secular
conduct that creates the same or even greater potential risk as the prohibited religious activity
currently prohibited/affected.
56. Governor Beshear’s executive orders, which constitute his own political value judgment,
unconstitutionally infringe on the autonomy of religious institutions and churches in violation
of the First Amendment. Governor Beshear, consistent with the First Amendment, cannot
tell religious institutions and churches that they can hold in-person worship services, but
cannot hold in-person schooling. In Executive Order 2020-968, Governor Beshear ordered
that his new limits on gatherings “does not apply to in-person services at places of worship,
which must continue to implement and follow the Guidelines for Places of Worship.” In
Executive Order 2021-585, Governor Beshear created numerous secular exceptions, both in
21
the facial text of the order, and in not prohibiting similar gatherings of young people and
adults.
57. Just this year, in another example of clearly established law, the United States Supreme Court
held that the First Amendment protects the right of religious institutions and churches to
make decisions about how to direct religious schooling. Our Lady of Guadalupe, 140 S. Ct.
at 2055 (2020).
58. If religious institutions get to decide for themselves who teaches their children about
religious faith, as Our Lady of Guadalupe holds, it follows that the schools themselves can
determine the manner in which they provide such education, particularly where secular
activities are not so burdened.
59. Not only has Governor Beshear previously told religious schools that they cannot hold in-
person classes, and currently placed a mask mandate upon them, but he simultaneously is
permitting religious institutions to hold in-person worship services without any mask
requirements. That is to say, Governor Beshear has declared that certain religious activities
are legal—namely, in-person worship where children are not masked—while others are
illegal—specifically, in-person religious schooling where children are not masked. The First
Amendment forbids this direct “intru[sion]” into the “autonomy” of churches and religious
institutions.
60. The Christian School Plaintiffs ask the Court to declare unlawful as violative of the Free
Exercise Clause those portions of Executive Order 2020-969 that prevented religious schools
from operating on the same terms as secular establishments that posed comparable public
health risks, but were nevertheless allowed to remain open in the Commonwealth.
22
61. The Christian School Plaintiffs ask the Court to declare unlawful as violative of the Free
Exercise Clause those portions of Executive Order 2021-585, that impose mask mandates on
private religious schools, which make allowance for certain religious exceptions and
numerous secular exceptions, but no allowance for exceptions that are pursued pursuant to
faith based education in religious schools, thus preventing these religious schools from
operating on the same terms as secular establishments that pose comparable public health
risks, but are nevertheless allowed to remain open and without masking, and to enjoin
Governor Beshear from further enforcement of Executive Order 2021-585 against them, and
to extend such relief to other private religious schools.
62. Because the actions of Governor Beshear in prohibiting religious school in-person
instruction, and in imposing a discriminatory mask requirement, violate the clearly
established law set forth in Roberts, 958 F.3d 409, Maryville, 957 F.3d 610, Our Lady of
Guadalupe, 140 S. Ct. at 2055, and, for his actions after November 25, 2020, Cuomo, 208 L.
Ed. 2d 206, Governor Beshear is divested of qualified immunity and, as such, the Christian
School Plaintiffs seek compensatory damages against him in an individual capacity in
amount to be determined at trial.
63. The Christian School Plaintiffs further seek punitive damages against Governor Beshear in
his individual capacity, since the actions complained of involve reckless or callous
indifference to the federally protected rights of Plaintiffs, in an amount to be determined at
trial.
COUNT II – Violation of Kentucky RFRA (declaratory and injunctive relief, Executive

Order 2021-585)
64. Plaintiffs reincorporate the preceding Paragraphs as if fully written herein.
23
65. KRS 446.3507 provides:
Government shall not substantially burden a person's freedom of religion. The right to act or
refuse to act in a manner motivated by a sincerely held religious belief may not be
substantially burdened unless the government proves by clear and convincing evidence that it
has a compelling governmental interest in infringing the specific act or refusal to act and has
used the least restrictive means to further that interest. A "burden" shall include indirect
burdens such as withholding benefits, assessing penalties, or an exclusion from programs or
access to facilities.
66. Executive Order 2021-585 substantially burdens the Plaintiffs’ freedom of religion, and their
mask-optional policies were actions or refusals to act that were motivated by a sincerely held
religious belief; the policies, due to parental objections and impending withdrawal of their
children from schools with such mandates, threaten the ongoing enterprise, and faith
practices, of these private religious schools.
67. Governor Beshear cannot prove a compelling interest, and cannot prove that he has used the
least restrictive means, by clear and convincing evidence, in the issuance of such mandates as
applied to private religious schools.
68. The Christian School Plaintiffs ask the Court to declare unlawful, as violative of the
Kentucky RFRA, those portions of Executive Order 2021-585 that impose mask mandates on
private religious schools, which make allowance for numerous secular exceptions, but no
allowance for exceptions that are pursued pursuant to faith based educational objectives, thus
preventing religious schools from operating on the same terms as secular establishments that
pose comparable public health risks, but are nevertheless allowed to remain open and without
masking, and to enjoin Governor Beshear from further enforcement of Executive Order
2021-585 against them, and to extend such relief to other private religious schools.
7
The Commonwealth has waived Eleventh Amendment immunity for this claim. KRS
39A.090(5).
24
COUNT III – Right to private education and for parents to control their children’s
education
70. The previous School Ban, Executive Order 2020-969, contravened the Christian School
Plaintiffs (including the parents and children’s) fundamental right to receive a private
education, and unreasonably interfered with the parents’ rights to control their children’s
education. Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. State of Nebraska, 262
U.S. 390 (1923); Farrington v. Tokushige, 273 U.S. 284 (1927).
71. The Mask Mandate, Executive Order 2021-585, contravenes the Christian School Plaintiffs
(including the parents and children’s) fundamental right to receive a private education, and
unreasonably interferes with the parents’ rights to control their children’s education. Pierce
v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. State of Nebraska, 262 U.S. 390 (1923);
Farrington v. Tokushige, 273 U.S. 284 (1927).
72. The Christian School Plaintiffs ask the Court to declare that Executive Order 2020-969
violated their clearly established fundamental rights under the Fourteenth Amendment to
receive a private education and to direct their children’s education, and Plaintiffs seek
compensatory damages against him in an individual capacity in amount to be determined at
trial.
73. The Christian School Plaintiffs ask the Court to declare that Executive Order 2021-585
violates their clearly established fundamental rights under the Fourteenth Amendment to
receive a private education and to direct their children’s education, seek an injunction
prohibiting further enforcement of that order against Plaintiffs, and seek compensatory
damages against him in an individual capacity in amount to be determined at trial.
COUNT III – Violation of Freedom to Peaceably Assemble and Freedom of Association
25
75. The First Amendment also guaranties the right “of the people peaceably to assemble.” This
guaranty has also been incorporated against the states. DeJonge v. Oregon, 299 U.S. 353
(1937); NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 460-461 (1958).
76. The right to conduct peaceful assembly is embedded at the very core of First Amendment
protection. Edwards v. South Carolina, 372 U.S. 229 (1963); Shuttlesworth v. Birmingham,
394 U.S. 147 (1969); Gregory v. Chicago, 394 U.S. 111 (1969).
77. The School Ban, Executive Order 2020-969 violated the Freedom of Assembly and
association.
78. The Mask mandate, Executive Order 2021-585 violated the Freedom of Assembly and
association.
79. The Plaintiffs ask the Court to declare that Executive Order 2020-969 violated their
fundamental rights to peaceably assemble, and violated their clearly established fundamental
rights under the Fourteenth Amendment to receive a private education and to direct their
children’s education, and seek compensatory damages against him in an individual capacity
in amount to be determined at trial.
80. The Plaintiffs ask the Court to declare that Executive Order 2021-585 violated their
fundamental rights to peaceably assemble and associate, and violated their clearly established
fundamental rights under the Fourteenth Amendment to receive a private education and to
direct their children’s education, and seek injunctive relief against its enforcement, as well as
compensatory damages against him in an individual capacity in amount to be determined at
trial.
26
Generally
81. Governor Beshear abused the authority of his office and, while acting under color of law and
with knowledge of Plaintiffs’ clearly established rights, used his office to violate Plaintiffs’
Constitutional rights, privileges, or immunities secured by the Constitution and laws.
82. Thus, under 42 U.S.C 1983, Plaintiffs seek declaratory relief and compensatory damages.
Pursuant to 42 U.S.C. 1988, Plaintiffs further seek their reasonable attorney fees and costs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs demand judgment against Defendant as prayed for, including:
A. That this Court issue a declaration that the challenged orders are unconstitutional;
B. That this Court issue an injunction against enforcement of Executive Order 2021-585
against private religious schools;
C. That Plaintiffs be awarded their costs in this action, including reasonable attorney fees
under 42 U.S.C. § 1988;
D. That the Christian School Plaintiffs be awarded reasonable compensatory and punitive
damages against the individual capacity Defendant and a jury trial on those claims; and
E. Such other relief as this Court shall deem just and proper.
JURY DEMAND
Plaintiffs demand trial by jury for all claims so triable.

27

859/486-6850 (v)
513/257-1895 (c)
859/495-0803 (f)
[email protected]
Bruns Connell Vollmar Armstrong, LLC
[email protected]
513-312-9890
I certify that I have served a copy of the foregoing upon counsel of record, by filing same with
this Court via the CM/ECF system, which will provide notice of same to all parties, this 13 day
of August, 2021.

28
VERIFICATION
Pursuant to 28 U.S.C. 1746, I, Dale Massengale, on behalf of myself, Pleasant View Baptist
Church, and Pleasant View Baptist School, declare under penalty of perjury that I have read the
foregoing Verified Second Amended Complaint, that I am competent to testify in this matter,
that the facts contained therein are true and correct, and are based information personally known
and observed by me.
Executed on: 8/13/2021

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

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

GOVERNOR ANDREW BESHEAR, :

PLAINTIFFS’ EMERGENCY MOTION FOR LEAVE TO FILE SECOND VERIFIED

/s/ Christopher Wiest___________

/s/ Christopher Wiest___________

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

GOVERNOR ANDREW BESHEAR, :

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR

the past actions of the Defendant.

Complaint at Exhibit A. Id. at ¶37.

have implemented, at significant cost, COVID-19 mitigation measures including, without

religious beliefs of the Plaintiffs to provide a religious education to children in furtherance of

1https://www.nature.com/articles/s41598-020-72798-7 (last visited 8/13/2021);

II. Law and Argument

FRCP 15(d) provides, in relevant part:

Leave to amend pleadings is to be freely permitted "when justice so requires." Fed. R.

371 U.S. 178, 182 (1962).

"A supplemental pleading promotes as complete an adjudication of the dispute between

be separately tried and prosecuted." Id.

Leave, therefore, should be granted.

/s/ Christopher Wiest___________

/s/ Christopher Wiest___________

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

MARYVILLE BAPTIST CHURCH, :

MAYFIELD CREEK BAPTIST CHURCH, :

FAITH BAPTIST CHURCH, :

WESLEY DETERS, MITCH DETERS, :

PLAINTIFFS’ SECOND VERIFIED AMENDED AND SUPPLEMENTAL COMPLAINT

Defendant unlawfully implemented a discriminatory mandate upon these same institutions

requiring children as young as two years old to wear face coverings.

JURISDICTION AND VENUE

applicable law, because much of the deprivations of Plaintiffs’ Constitutional Rights

Furthermore, the first named Defendant is located in this division.

individual and official capacities.

including the orders and actions complained of herein.

restrictions related to COVID-19.

leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers;

and similar activities.”

secular “mass gatherings.”

an order was previously a misdemeanor punishable by criminal prosecution.

self-quarantine for 14 days or else be subject to further sanction.

17. The court further noted that:

honor in the Bill of Rights: the First Amendment.” Id. at 416.

from restricting religious practices. In Tabernacle Baptist Church of Nicholasville, Inc. v.

for the safety of the public.’” Id. at 854–55 (citation omitted).

not treated as a favored class, violates the law.

24. As demonstrated below, Governor Beshear’s violations of the Constitution continued.

The First Amendment and the November 18, 2020 Orders

Supp. 3d 901, 906 (W.D. Ky. 2020).

executive order, Executive Order 2020-969.

is based upon their sincerely held beliefs.

again permitted a number of comparable secular activities of varying sizes.

programming, including assisting children with school assignments.

establishments, gaming facilities, and other facilities to remain open.4

214 as authority for their promulgation.

order or administrative regulation made pursuant to” KRS Chapter 39A.

perspective, is to remain in school,” and that it is “counterproductive . . . from a public health

‘Let’s close the schools.’”5

The most recent mask mandate

school buses, regardless of vaccination status.”