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Kansas lawmakers revoke Gov. Kelly's order limiting church gatherings

Source: 
Kansas City Star
Author: 
Jonathan Shorman, Amy Renee Leiker, Michael Stavola
Date: 
Wednesday, April 8, 2020

TOPEKA, Kan. — Easter looming, Kansas Republican leaders on Wednesday revoked Democratic Gov. Laura Kelly’s order limiting religious gatherings to 10 people as the state’s coronavirus death toll jumped 40 percent.

House and Senate leaders — meeting as a body called the Legislative Coordinating Council — voted along party lines to throw out the directive. Their decision came as the number of reported COVID-19 cases in the state climbed to more than 1,000 and the death count ticked up to 38.

Church gatherings have produced three case clusters across the state and health officials fear Easter gatherings could further spread the deadly coronavirus. Pastors and priests now confront a stark choice: forgo in-person services on Christianity’s holiest day or open church buildings and potentially risk exposing parishioners.

Kelly denounced the legislators’ decision at a late afternoon press conference, calling it “shockingly irresponsible” and one likely to cost lives.

She said she instructed her legal counsel to explore a court challenge. According to the governor, it was unclear whether an overall statewide ban on mass gatherings of more than 10 people remained in effect.

“There are real life consequences to the partisan games Republicans played today,” Kelly said.

Her order had sparked strong backlash among Republicans and religious liberty advocates, who condemned it as a violation of foundational freedoms and an overreach by the governor. One GOP congressional candidate, Adrienne Vallejo Foster, went as far as calling on sheriffs to ignore the order and urging churches to meet while practicing social distancing.

Opponents were aided by Attorney General Derek Schmidt, who issued a memo calling the order likely unconstitutional and urging police not to enforce it. Violations of the order would have been a misdemeanor offense.

In the memo, Schmidt simultaneously implored Kansans to follow the order and also advised police not to arrest or cite violators. Kelly slammed the memo as unwarranted and nonsensical.

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Chief counsel Clay Britton argued the order could withstand strict legal scrutiny -- an exacting standard that restrictions on fundamental rights are required to meet.

“This just puts churches on the same footing” as secular groups that want to meet, Britton said, noting that it actually gave churches more freedom because individuals responsible for the service, such as pastors and choir members, were exempt from the 10-person limit.

Richard Levy, a constitutional law professor at the University of Kansas, pointed to a 1990 U.S. Supreme Court ruling that laws that don’t specifically target or single out religions for adverse treatment are generally deemed valid, even if they incidentally burden religious freedoms or practices.

In an interview, he said if Kelly’s order prohibits any public gatherings of more than 10 people, but does not target religious groups specifically, then it likely would be deemed lawful.

Lifting an exemption for religious groups from a prior order limiting gathering size is also probably “not a problem,” Levy said.

“If it’s possible to document that small religious gatherings had led to the spread of the coronavirus in a way that other gatherings have not, then there is a chance that the court would say singling out religious gatherings satisfies even strict scrutiny,” he added.

In cases like that, “it’s not about suppressing religion. It’s about the realities of the coronavirus.”

Faculty name: 
Richard Levy