UPDATE: Kansas Legislative Coordinating Council strikes down order

An executive order limiting church attendance by Governor Laura Kelly, on the eve of the Easter Holiday is unconstitutional, Kansas Justice Institute Litigation Director and General Counsel Samuel MacRoberts wrote in a letter to the governor Wednesday.

In the letter, MacRoberts noted that church gatherings are considered essential, but under a previous executive order, “libraries and shopping malls libraries and shopping malls were not defined as essential businesses or activities, but EO 20-18 (which Kelly issued Tuesday) exempted them from the mass gathering limitation.”

MacRoberts concluded the letter, writing “In these trying times, vigilance is paramount. Flattening the curve is laudable and necessary. Reasonable action should be taken to ensure the public’s safety. As written, EO 20-18 strikes us as unreasonable and in our view, unconstitutional.”

It was a view with which Kansas Attorney General Derek Schmidt agreed.

In a release, Schmidt said, “The governor’s new executive order restricting in-person religious gatherings as a COVID-19 countermeasure is sound public-health advice that Kansans should follow, but the order likely violates state constitutional and statutory protections for religious freedom and must not be enforced by arrest, prosecution, fines or imprisonment for worshiping.”

Schmidt said law enforcement should not attempt to enforce the requirements of EO 20-18 as violations of criminal law as “Kansas statute and the Kansas Constitution’s Bill of Rights each forbid the governor from criminalizing participation in worship gatherings by executive order.”

MacRoberts noted in his letter that, while Kansas law does provide substantial power to the Governor during a declaration of emergency, “Any executive order that substantially burdens the free exercise of religion must pass strict scrutiny, the most stringent review possible. It requires the government to prove, by clear and convincing evidence, a compelling justification for the burden imposed; and, that the government has used the “least restrictive means” possible to accomplish that purpose. The government must meet this burden even during a pandemic.”

In a guest column in the Topeka Capital-Journal on March 31, MacRoberts laid out how these orders are required to be very specific and carefully crafted to preserve Constitutional liberties.

“A public gathering ban that applies to movie theaters but not plays, for example, is suspect,” MacRoberts wrote. “Banning small religious ceremonies but not large gatherings in shopping malls would be even more problematic. A temporary order lasting beyond the health crisis would raise even more issues.”

MacRoberts noted that crises have been used in the past to restrict fundamental freedoms — such as the FBI attempting to force Apple to unlock users’ phones — but that both Kansas and the United States have faced crises before.

“The point is, the Kansas and United States Constitutions were built for this moment,” he wrote. “The pandemic is frightening. Reasonable efforts must be made to stop its spread. But this crisis is not unprecedented in the sense that we’ve faced other serious and deadly threats before.

“This particular moment should not be used to hastily set aside our constitutional rights. Any governmental action should use the least restrictive means available, and of course, be truly temporary. Our state and federal constitutions are deliberate and foundational. They were written in times of peril to protect us against peril, including the COVID-19 pandemic.”

Schmidt concurred, writing: “During an emergency, such as the COVID-19 pandemic, temporary restrictions on even fundamental rights may be lawful, but only if the government proves they are the least restrictive means necessary to meet the emergency. In this case, executive orders prohibiting indoor gatherings of more than 10 people in churches, synagogues, temples and mosques but still allowing larger groups to gather in shopping malls, retail stores, libraries and numerous other places as long as they practice social distancing cast serious doubt on whether the burden on religion is the least restrictive means necessary.”

In a release announcing the new restrictions, Kelly said: “As Holy Week gets underway – and with Kansas rapidly approaching its projected ‘peak’ infection rate in the coming weeks – the risk for a spike in COVID-19 cases through church gatherings is especially dangerous,” Kelly said. “This was a difficult decision and not one I was hoping to have to make.”

The release, however, does not explain why libraries and shopping malls, which were previously restricted, were suddenly essential services, but constitutionally-protected religious gatherings are not.

Kansas Senate President Susan Wagle, (R-Wichita), similarly questioned the necessity and timing.

“At a time when Kansans and Americans are practicing good social distancing to slow the spread, Governor Laura Kelly was quick to shut down schools for the entire year,” Wagle wrote. “Now during Holy Week for Christians, she is closing our churches.”

Why the executive order was needed when many churches across the state have already shifted to online forms of worship such as Facebook Live is not explained either.

Pastor Jim Bowles, of Calvary Baptist Church, in Columbus, is one such.

Bowles noted that he did not have a problem with the order, but his church had been doing online worship for nearly three weeks.

“My thinking is that God doesn’t need groups of 10 or more to work,” Bowles said. “He is sharing His Word exponentially more because of this shutdown. I’ve had more contact with my church folks in the last three weeks than in the last four or five years.”

UPDATE: The Capital-Journal reports that the Legislative Coordinating Council voted 5-2 along party lines to strike down the order Republican and Schmidt said violated federal and state constitutional protections for freedom of religion.

“It appears to be out of line, extreme and clearly in violation, a blatant violation, of our fundamental rights,” Wagle said

 

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