by Graham Ambrose, Kentucky Center for Investigative Reporting
October 5, 2020
It was Thursday night — the 120th night of protests for Breonna Taylor, who was killed by Louisville Metro Police at her home in March. Scott, the only Black woman in the Kentucky legislature, recorded the moments leading up to her arrest live on Instagram. “We are trying to get to sanctuary,” Scott explains on the video as Louisville Metro Police officers encircle her group, yell orders to “get down,” and begin handcuffing protesters.
The episode was the beginning of an extended standoff between Louisville Metro Police and protesters at First Unitarian. Church leaders had offered the church as a sanctuary for protesters seeking refuge from a citywide curfew, but for two hours, LMPD surrounded protesters gathered there.
“Our purpose in offering sanctuary to folks here this evening is to offer a safe space of love and compassion in the service of justice,” Linette Lowe, a First Unitarian member, told a WFPL reporter on Thursday night.
The confrontation, and arrests of people coming and going, has raised questions about First Amendment violations and disturbed members of Louisville’s faith community. The American Civil Liberties Union of Kentucky denounced “both the curfew itself and the blockade of First Unitarian to enforce it” as Constitutional violations in a letter to the Jefferson County attorney.
No law explicitly permits churches to harbor law-breakers or to protect individuals from the state. Instead, church sanctuaries are part of a long tradition that has typically been respected by the government.
The local faith community is proud of Louisville’s history of religious tolerance and religious dissent. To these advocates, the standoff was a disconcerting clash between the state and a church fulfilling its ministry. Days later, when questions were raised about whether bars were expected to close for curfew, a city spokesperson would say anyone on private property with permission of the owner could be there as long as they went right home afterward, raising more questions about the law enforcement presence.
Bill Allison, a retired attorney and longtime First Unitarian member, watched police surround the church via an online video feed with confusion and outrage. “It made me think we were living in a police state,” Allison said.
He was also struck by a feeling he described as “deja vu.” Allison was active in the civil rights movement of the 1960s, attending the March on the Pentagon in 1967 and the Chicago Democratic National Convention in 1968.
Allison thinks, for better or worse, the episode at First Unitarian is bound to be etched into local memory.
“It will be a very important part of Louisville’s history,” Allison said. “We’ve reached a turning point.”
A history of religious freedom
“Religious liberty” has become a byword for all sorts of contentious issues: abortion, contraceptives and health care, same sex marriage, private and public schools, immigration, and many more.
But religious liberty has a long tradition in Louisville and Kentucky, and it’s been used to support causes on both ends of the political spectrum. Since the nineteenth century, several precedent-setting cases involving questions of religious freedom and expression began here.
The First Amendment to the U.S. Constitution famously prohibits Congress to “make any law respecting an establishment of religion, or prohibiting the free exercise thereof.” Religious freedom is also enshrined in Section 5 of the Kentucky Constitution, which declares “no preference shall ever be given by law to any religious sect, society or denomination.”
What exactly that freedom entails, however, has been a perennial subject of dispute.
The U.S. Supreme Court decided one influential case in 1872 that originated with a property dispute at the Walnut Street Presbyterian Church. The dispute in Watson v. Jones centered on a conflict between the church’s pro- and anti-slavery factions, who disagreed over church property ownership and church administration.
In its ruling, which was later strengthened in subsequent cases, the Supreme Court held that civil courts should let churches decide for themselves in matters of internal concern, and not arbitrate matters of church doctrine.
More than a century later, in Stone v. Graham in 1980, the Supreme Court struck down a Kentucky statute that required a copy of the Ten Commandments to be hung on the wall of public classrooms. In declaring the statute unconstitutional, the Court ruled the law had “no secular legislative purpose.” In 2005, the Supreme Court held that a Ten Commandments display at the McCreary County courthouse was also unconstitutional.
More recently, Kentucky governments have been in the sights of some religious liberty advocates protesting local shutdown orders for COVID-19. In April, the Louisville On Fire Christian Church sued Mayor Greg Fischer for preventing drive-in religious services on Easter due to the coronavirus pandemic.
This issue didn’t make it to the Supreme Court but to U.S. District Court Judge Justin Walker, who granted a temporary restraining order to block enforcement of the city’s orders, ruling it violated the Constitution “beyond all reason.” The city later reached an agreement to allow the church’s drive-in services.
A curfew and an exemption
The curfew came as Louisville anticipated renewed protests after a grand jury decision in the Breonna Taylor case. Louisville Mayor Greg Fischer on Sept. 23 announced an emergency 72-hour curfew from 9 p.m. to 6:30 a.m. to quell potential civil unrest.
The curfew, though, had exceptions: It did not apply to “individuals who are commuting to a place of work, house of worship for services or seeking medical attention for themselves or others.”
Lori Kyle, First Unitarian reverend, said services offered at the church’s sanctuary included prayer, inspirational messages, song, and the breaking of bread over shared meals.
Kyle recalled the story of Rabbi Abraham Joshua Heschel, who marched with Dr. Martin Luther King, Jr., in Selma, Ala. When Heschel was asked if he found time to pray in Selma, he famously responded: “When I marched in Selma, my feet were praying.”
“Needless to say,” Kyle said, “the marching of the protesters for whom we have provided sanctuary, those who are speaking out for racial justice, has been the greatest prayer of all.”
First Unitarian Church has been involved in social justice activism for decades. It’s why Bill Allison first joined in the 1970s. In the curfew’s exemptions for houses of worship, church leaders found an opening to step up and minister to protesters, Allison said.
Thus First Unitarian was opened as a sanctuary site for protesters sidestepping curfew violations, a short walk from the protest’s center.
According to LMPD, protesters vandalized at least one business along Fourth Street and some TARC buses. A WFPL reporter also heard a window smash then saw a flare lobbed into the main branch of the Louisville Free Public Library near the church.
LMPD spokesperson Jessie Halladay said officers declared an unlawful assembly due to “several incidents of destruction” along the march route. The conflict that followed unfolded on the yard of First Unitarian.
By night’s end, 24 protesters were arrested, including State Rep. Scott, her daughter Ashanti, and Shameka Parrish-Wright, the co-chair of the Kentucky Alliance against Racist and Political Repression. After 11 p.m., two hours after curfew, protesters were allowed to leave on conditions they stayed on sidewalks and promptly left downtown.
Russell Weaver, law professor at the University of Louisville, said it might not matter whether protesters were there for services or just fellowship.
“My guess is it probably doesn’t make a difference,” Weaver said, “and police to some extent respected that because they didn’t go into the church and arrest people who were on church grounds.”
Although some protesters worried police would storm the church property and arrest individuals claiming sanctuary, the police did not conduct arrests on church grounds.
In testimony before a Metro Council committee on Monday, and in response to a question about their actions at the church, Interim LMPD Chief Robert Schroeder said LMPD leadership discussed a plan to enter the church but ultimately decided against it. A spokesperson later clarified Schroeder was referring to a search warrant to find individuals connected to an arson on Saturday night on Spalding University’s campus.
The standoff at First Unitarian was widely criticized by advocates of First Amendment rights.
In its letter to the Jefferson County attorney, the ACLU of Kentucky denounced the curfew and blockade as unconstitutional.
“Only First Unitarian was placed under a blockade, with people neither allowed to enter nor leave despite the explicit provisions of the curfew order allowing travel to houses of worship,” the letter reads.
“The reason for this blockade was evident: First Unitarian, consistent with its understanding of its religious mission, threw open its doors as a place of refuge for protesters in the service of justice,’” the letter continued. “LMPD disagreed with this exercise of religious belief and disagreed with the members of the public who sought to take up the church’s offer of sanctuary, and so LMPD put First Unitarian under siege.”
The ACLU of Kentucky also criticized the curfew as “illegal content-based discrimination” for prohibiting certain types of speech after 9 p.m.—such as protesting—while permitting religious speech.
Hiram Sasser, executive general counsel of the Texas-based nonprofit group First Liberty, supported the religious exemption in the curfew order and defended the church’s right to offer sanctuary.
“The government creating a carveout or exception for religious exercise is Constitutionally permissible, even if it doesn’t allow for other types of like activity for other reasons,” Sasser said.
“If they have an exception for attending religious services or attending a religious institution, and people were doing that, it’s not the government’s business as to why they were attending a religious service or attending a religious place,” Sasser added.
Still, experts noted that claiming sanctuary is not a shield from all laws or legal consequences.
“The reality is that, in almost all circumstances, out of respect for religious liberty as opposed to any technical requirement, police or government authorities will not breach a church,” said Sam Marcosson, a law professor at the University of Louisville. “What police tend to do in those situations where they believe they have an important interest in arresting someone or questioning someone is they will just wait them out.”
The government cannot single out protesters for their religious views, Marcosson added. If the worship service exception to the curfew order wasn’t extended to the First Unitarian protesters, the First Amendment concerns would be “very grave,” Marcosson said.
“It would put the government to its burden to explaining why these particular protesters were not given the benefit of the carveout,” said Marcosson. “I would be very curious and skeptical that the government would have a legitimate explanation other than hostility toward the point of view of these protesters.”
For her part, Rep. Scott has vowed to fight the charges. The ACLU of Kentucky has asked the Jefferson County attorney to drop all charges against the 24 protesters who were arrested.
A spokesperson for the Jefferson County Attorney said the office generally does not discuss pending cases. Scott’s first court hearing is scheduled for Tuesday.
Though Louisville’s curfew has ended, local activists plan to continue protesting for Breonna Taylor, particularly after a grand jury convened by Ky. Attorney General Daniel Cameron failed to indict an officer for killing 26-year-old Taylor at her home in March.
Bill Allison looked forward to continuing First Unitarian’s mission and ministry, particularly after the Thursday night standoff.
“It’s the proudest moment I’ve been in my time at the First Unitarian Church,” he said. “A lot of people will remember that and not forget it.”