Chattanoogans mass in the parking lot of a Home Depot — and it’s OK with Mayor Andy Berke, who forbade the Christian church from holding worship. (Photo Steve Ball lawsuit)A child leans out of a window at a crowded fast-food restaurant in Chattanooga. (Photo Steve Ball, Metro Tabernacle lawsuit)A customer crosses the parking lot at a fast-food joint in Chattanooga where patrons obey “social distancing” advice even while parking next to each other in ordering their hamburgers and fries. (Photo Steve Ball, Metro Tab lawsuit)
A lawsuit filed Thursday by Metro Tabernacle in U.S. district court slashes brightly against the rickety executive order empire created by Gov. Bill Lee and Mayor Andy Berke and others in executive office in Tennessee.
The lawsuit filed on behalf of the Highway 153 church by Alliance Defending Freedom shows that the constitutionally guaranteed rights that people cannot be overturned as easily as the threats, intimidation and bluff by Messrs. Berke and Lee would have us believe.
The suits demanding the city be enjoined from enforcing its edicts against public worship. It is certain to obtain immediate hearing, as the Lord’s Day, Sunday, is merely 2 days out from today. It also demands fees, costs and lawyer’s billing, and other costs.
Problem with executive government
The problem with executive government is that it is neither from the people, by the people or for the people, but serves executive top-down interests apart from any consideration of the liberties of the people. Executive government is pre-emptive, administrative and unitary. Constitutional government is reactive, constitutional and divided.
“Responding to crises is difficult,” the complaint begins. “But in times of difficulty, communities rise to the occasion. Pastor Ball and Metropolitan Tabernacle (“Metro Tab”) Church are doing exactly that, serving their community with love during this trying time by, among other things, passing out meals and assisting with disaster
relief and recovery efforts from the recent tornadoes. On Sunday, however, they plan to take a brief respite and serve their Savior through prayer, worship, and preaching of the word via a “drive-in” service—where there is no direct physical interaction between members who will remain in their vehicles in the church parking lot to listen together via short-range FM transmitter.
“However, the city and mayor have specifically targeted churches by banning drive-in services, despite permitting packed parking lots at retail establishments and drive-in restaurants.”
There may exist a statewide health threat, but the necessities claimed by the state can go only so far. In Hamilton County, only 110 people are confirmed to have had, or have, the virus. Fifty-three had symptoms and recovered, and 11 people have perished from the new form of the flu that has prompted a nationwide house arrest of millions of perfectly healthy Americans.
“Crises do not suspend the Constitution and there is no legitimate justification for banning individuals from remaining in their vehicles in a church parking lot to listen to a short-range FM broadcast of a church service.”
Mayoral executive orders are legally sketchy. The definition of an executive order is as follows, in Black’s Law Dictionary, 8th edition. They come from the federal president. Tennessee law, however, envisions mayoral executive decrees. (Photo David Tulis)
The church’s last in person worship service was March 15. It cancelled Easter service out of dread of offending Mayor Berke and Gov. Lee.
It points out that no edict by Gov. Lee prohibits Christian worship. His stay at home order, his “distancing” directives, his definitions of “essential activity” do nothing to bar public worship.
It has a plan for worship Sunday April 19. The service will be held in the parking lot. Using every other parking space, with instructions to leave windows rolled up with the production team of less than 10 people following CDC guidelines.
“The church’s drive-in services are a creative way for the church and its parishioners to worship together and exercise their faith while avoiding in-person contact and ensuring the health and safety of attendees and the local community.
The complaint relates how the city government changed its mind about “drive-in” services. The mayor’s executive order 2020-04 of March 23 prohibiting” all public and private gatherings of more than 10 people occurring outside a single householder living unit,” gave exceptions for essential activities. No ban was imposed on churches.
EO 2020-06 ordered individuals to “shelter at their place of residence” with leave for “essential activities” or “essential services businesses.” Visiting places of worship was included as an essential activity.
Pastor Steve Ball says that on April 6 he contacted the Chattanooga police. A lieutenant told him that a drive-in church would not violate the order.
Based on these representations, the church planned drive-in services on Easter Sunday, April 12, including acquiring the use of FM transmitting equipment and sending an email to congregants.
Church staff, including Pastor Ball, traveled to the church to prepare for the Easter drive-in service and expended funds to do so.
The church paid at least one part-time staff member, as well as salaried staff, to set up sound equipment in preparation for the Easter drive-in service.
But the city changed its tune with its EO of April 9, EO 2020-07.
“The mayor posted a message specifically aimed at churches on the city website and on his Official Facebook page stating that ‘drive-in services . . . even in their cars with the windows rolled up, for any length of time will be considered a violation of our shelter-in-place directive.’”
This writer, for one, took that as an empty threat, and credited the mayor with not following through with promises to deploy his police department, as have mayors in other cities such as Louisville.
But the statement was intimidating, and Pastor Ball canceled worship in light of the threat.
Unequal treatment = arbitrary treatment
The suit includes photos of retail outlets doing brisk business, with parking lots full of cars, trucks and motor vehicles.
“The city has offered no justification for prohibiting church members from sitting in their vehicles in the parking lot to listen to drive-in church. The city permits persons to park next to each other in retail parking lot such as Lowes and Home Depot with their windows down. The city permits persons to interact directly with their windows down in drive-through restaurants such as Sonic.”
A sense of outrage emerges in the dry wording of the complaint.
You can buy a hamburger and sit in your car at a drive-in restaurant, or sit in the parking lot of a retail establishment with hundreds of other vehicles with your windows rolled down, but you can’t sit in your car at a drive-in church service with your windows rolled up.
The protections for religious worship, free speech and free association are key claims that obliterate the claims by Mayor Berke and Gov. Lee that the state’s economy is to be shut down for a few people with the flu. That any division is made among people in public life is a violation of law of equal treatment, under equity and under the 14th amendment.
Plaintiffs’ sincerely held religious beliefs teach that Bible is the inspired Word of God the necessity of gathering together for corporate prayer and worship and that such assembly is necessary and good for the church and its members’ spiritual growth. The city’s drive-in church ban substantially burdens plaintiffs’ religion by prohibiting them from holding even “drive-in” church services. The city’s drive-in church ban interferes with Plaintiffs’ ability to carry out their religious doctrine, faith, and mission. The city’s drive-in church ban targets, discriminates against, and shows hostility towards churches *** . [Emphasis added]
The city’s drive-in church ban is neither neutral nor generally applicable. The city does not have a compelling reason for shutting down “drive-in” church services, nor has it selected the least restrictive means to further any purported interest. The city’s drive-in church ban violates the Free Exercise Clause of the Amendment to the United States constitution **** . In the absence of declaratory and injunctive relief, Plaintiffs will be irreparably harmed.” [Emphasis added]
Metro Tab’s worship service’s FM signal is coming with the high regard of NoogaRadio 92.7 FM and its nonprofit low-power station 101.1 FM, and the technical wizardry of station partner Mike Steele.
Four attorneys are listed as providing legal services to Metro Tab, including Ryan J. Tucker of Alliance Defending Freedom, with his offices in Scottsdale, Ariz. Another is Nathan W. Kellum in Memphis.
David Tulis is live on the air weekdays 7 a.m. to 11 a.m. on NoogaRadio 96.9 FM and other NoogaRadio Network stations, covering local economy and free markets in Chattanooga and beyond. Nothing here is legal advice; if you want legal advice, find a law firm downtown or on another planet — where the law actually matters.
