Lawrence adult entertainment club says Supreme Court decision on religious services should apply to local health order
photo by: Journal-World File Photo
In an ongoing legal dispute over a Douglas County health order that limits bars’ operating hours amid the coronavirus pandemic, an attorney now says a U.S. Supreme Court decision striking down attendance limits at religious services should apply to an adult entertainment club in Lawrence.
Attorneys for the county, however, say that argument fails to note that free religious exercise protections of the First Amendment were central to the court’s decision in the Roman Catholic Diocese of Brooklyn, N.Y., case against New York Gov. Andrew Cuomo.
On Nov. 25, the justices, in a 5-4 split, barred New York from enforcing certain limits on attendance at churches and synagogues in areas designated as hard hit by the virus, the Associated Press reported.
Robert “Tuck” Duncan is representing Paradise Saloon in a Douglas County District Court case challenging the health order that, in part, limits the hours in which establishments with liquor licenses can operate.
In a recent supplemental brief, Duncan cited the Supreme Court opinion in the New York case, which stated that “the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.”
“In our case just substitute ‘places that serve alcohol’, and the same principle applies,” Duncan wrote.
Duncan also quoted Justice Neil Gorsuch’s concurring opinion, which stated that “the restrictions apply no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.” Duncan wrote that the health order similarly applies to the club, despite precautions that owner Zach Snyder said he has taken.
In response, Brad Finkeldei, of Stevens & Brand LLP, wrote that Duncan was mischaracterizing the Supreme Court’s ruling and its applicability.
“It should go without saying that the analysis of a non-neutral threat to religious practice requiring strict scrutiny under the First Amendment has no applicability to the present case,” Finkeldei wrote. “The Paradise Saloon is not a place of worship, and there is not even a challenge brought under the First Amendment in this case, let alone under a theory of Free Exercise of Religion.”
Finkeldei, who is also mayor of Lawrence, wrote that Judge Kay Huff should instead consider a federal judge’s recent decision in a similar lawsuit filed by Peach Madl, owner of The Sandbar in downtown Lawrence.
As the Journal-World reported, that judge declined to grant an injunction that would have prevented the county from enforcing the health order. The decision focused on the legal grounds that a liquor license is a privilege and not a right, rather than the public health issues.
Complicating matters further is the fluidity of the pandemic. Douglas County Health Officer Dr. Thomas Marcellino has modified the health order as local COVID-19 cases have risen and fallen.
The most recent rendition of the health order, issued Nov. 20, does not differentiate between establishments that do or do not have liquor licenses. Previous versions of the order — one of which prompted Paradise Saloon’s case — did not allow establishments with liquor licenses to serve food or drink after a cutoff time, though establishments without liquor licenses could continue serving food with no hour restrictions.
The cutoff time has also fluctuated between 9 p.m. and 11 p.m. in different versions of the health order. Currently, it’s 10 p.m. for all alcohol sales and in-person dining, though curbside and delivery food service is allowed after that time. Snyder testified in October that roughly 50% to 60% of his business comes in between 10 p.m. and 2 a.m.
Paradise Saloon’s case has been submitted to Huff, but she has not yet made a ruling.
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