I noted Saturday that the Sixth Circuit had temporarily blocked the Kentucky Governor’s limit on drive-in church services, based partly on the conclusion that the Governor’s order violate the Kentucky state Religious Freedom Restoration Act. The court also concluded that the order violated the federal Free Exercise Clause, but the Kentucky RFRA claim was an independent basis for the panel’s opinion (and in my view the stronger basis).
But this raises an important procedural question, which commenter Jeff Walden aptly identified: “[H]ow is a federal court judging the applicability of a state statute? Why isn’t it up to a Kentucky court to determine if their RFRA applies here?” And fortunately, I have the answer:
1. The federal court had “‘pendent’ claim jurisdiction—that is, jurisdiction over nonfederal claims between parties litigating other matters properly before the court.” The plaintiffs brought both a federal Free Exercise Clause claim and a state RFRA claim, so the court had jurisdiction to decide both.
2. Now a state can raise a sovereign immunity defense to block an injunction issued against the state ordering it to follow state law. But in this case, the Sixth Circuit wrote,
It bears noting that neither the Governor nor the Attorney General has raised sovereign immunity as a defense to this claim. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984). That is within their rights, see Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998), and perhaps springs from a commendable recognition that, with or without a pandemic, no one wants to ignore state law in creating or enforcing these orders.
And remember: Lawyers’ true superpower is the power to turn every question into a question about procedure.