Amicus brief supporting en banc rehearing in Pleasant View Baptist Church v. BeSHEAR

In August 2023, a Sixth Circuit panel affirmed the dismissal of a lawsuit challenging restrictions issued by Kentucky Governor Andy Beshear during the height of the COVID-19 pandemic. A group of churches, religious schools, parents, and students had sued Governor Beshear for a ban he had issued on all in-person learning at all private and public elementary and secondary schools in Kentucky following the COVID-19 surge in the winter of 2020. The ban has long since been lifted, but the alleged constitutional violations remain.

The Sixth Circuit panel opinion included an analysis of the petitioners’ final claim that the governor’s order “violated their rights to assemble peacefully and associate freely.” In analyzing the claim, the panel focused entirely on the right of association (and its component parts of intimate and expressive association), and never even mentioned assembly in its analysis before concluding: “The Governor did not violate Plaintiffs’ rights to assemble peacefully or associate freely.”

In September 2023, I argued in an amicus brief that the full Sixth Circuit should review the panel’s mistaken assembly analysis. I was fortunate to work with the students and faculty at Pepperdine's Religious Liberty Clinic (Matteson Landau, Grace Mulvaney, Daniel Chen, Eric Rassbach, and Michael Helfand), as well as Megan Lacy Owen and Noel Francisco at Jones Day. You can read the full brief here.