Last Friday, a Federal District Court issued a preliminary statewide universal injunction against Kentucky’s prohibition on in-person religious services. The injunction arose from a case in which the Tabernacle Baptist Church challenged the restriction as a violation of their Free Exercise rights. But instead of limiting the injunction to the church that sued, the judge enjoined the Governor’s order from being enforced against any church.
Injunctions which prevent a state from continuing to enforce a likely unconstitutional law against even those who did not challenge the law are not all that rare. The Eighth Circuit issued such an injunction last year against Arkansas’ anti-panhandling law. And judges have issued (and upheld) multiple universal injunctions in past IJ cases as well.
What makes this injunction so unique is the party that intervened in this lawsuit. The Kentucky Attorney General Daniel Cameron, a Republican, joined the lawsuit on the church’s side. Moreover, he actually requested that the court issue a statewide injunction preventing the order from being enforced against any church.
This is notable because in recent years the debate over universal injunctions (nationwide and statewide) has been split along party lines. Republicans dislike them while Democrats cheer them. But this has not always been the case. Multiple Republican AGs & SGs* asked for, and received, universal nationwide injunctions against some Obama Administration policies. And there is good evidence that courts have issued such injunctions for well over a century.
This being the case, it is important to point out times when this doesn’t fall along the now expected party lines. Universal injunctions should not be a partisan issue. At their core, they are a way to ensure that victims unable to challenge an unconstitutional law are not left unprotected.
Unfortunately, the reason given for issuing the statewide injunction was not entirely developed. The judge simply explained that the extent of the violation, not the geography, determines the scope of relief. As the harm was statewide then the injunction should also be statewide. While there is a certain logic to this, there still must be a certain analysis of what the plaintiff requires to receive relief or how granting the plaintiff relief without granting it to anyone else would lead to a fundamental unfairness.
But there is also an argument that when a judge faces a constitutional violation she should prevent against future violations of peoples’ constitutional rights. As the Governor’s order is set to expire on May 20th, it is unlikely that the Sixth Circuit will pass judgment on the universal statewide injunction issued in this case. But any time a court issues a universal injunction, especially when supported by an Attorney General, bears noting due to the ongoing controversy over such injunctions.
*One of these is friend of IJ Scott Keller who joined the Center for Judicial Engagement’s Director Anthony Sanders earlier this year for a podcast about the issue: https://ij.org/sc_podcast/episode-122-nationwide-injunctions/
Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.