(Updated with comments from the governor, the House speaker and the Senate president with edits throughout and further CLARIFIES that the order applies to two churches)
A federal judge early Saturday night temporarily blocked part of Gov. Laura Kelly’s executive order limiting the size of religious gatherings at churches as she tries to slow the spread of the coronavirus.
U.S. District Judge John Broomes agreed to a temporary restraining order for two churches so long as their religious activities comply with a series of social-distancing and health protocols.
“The court recognizes that the current pandemic presents an unprecedented health crisis in Kansas, and in this country,” Broomes wrote in a 19-page opinion that accompanied the order.
“The governor has an immense and sobering responsibility to act quickly to protect the lives of Kansans from a deadly epidemic,” he wrote.
“The court would not issue any restraint, temporary or otherwise, if the evidence showed such action would substantially interfere with that responsibility
The court found that the executive order denied the churches the constitutional right to the free exercise of their religion and that they were likely to win on the merits of their case.
The order expires no later than May 2. Broomes, meanwhile, has scheduled a hearing for the preliminary injunction on the order for next Thursday.
The Kansas case is just one of several nationally that have cropped up with churches challenging limits on mass gatherings or social distancing restrictions as a violation of their freedom of religion.
About a week ago, a federal judge in California set aside one lawsuit making claims similar to the Kansas case, but three other churches have brought a comparable action in another part of the state in a separate federal court district.
Kelly signed an executive order last week limiting the size of religious gatherings to 10 or fewer people, angering Republican leaders in the Legislature who thought it infringed on the religious freedoms of churches.
Kelly said the executive order was intended to protect the health of Kansans as the coronavirus peaked in Kansas.
“We are in the middle of an unprecedented pandemic,” Kelly said in a statement.
“My executive order is about saving Kansans’ lives and slowing the spread of the virus to keep our neighbors, our families and our loved ones safe,” Kelly said.
“During public health emergencies, we must take proactive measures to save lives.”
Kelly said there have been 80 cases of COVID-19 and six deaths related to mass religious gatherings.
“This is not about religion. This is about a public health crisis,” Kelly said. “This ruling was just a preliminary step. There is still a long way to go in this case, and we will continue to be proactive and err on the side of caution where Kansans’ health and safety is at stake.”
The Kelly administration said the judge’s order only applies to the two churches that brought the lawsuit, First Baptist Church of Dodge City and Calvary Baptist Church of Junction City.
“All other religious gatherings must continue to adhere to the requirements of (the executive order) and limit gatherings to 10 or fewer attendees,” the governor’s office said.
House Minority Leader Tom Sawyer, too, emphasized the fact that the order only applied to two churches.
“While religious freedom is of the utmost importance, preventing the loss of lives should be a priority,” Sawyer said.
“We must remember that these are all temporary measures in place to protect Kansans.”
During a hearing Friday, Broomes quizzed Kelly’s lawyers about exemptions in the order for retail stores, day care centers, food pantries, detox centers and group homes among others.
“This is not a broad, blanket restriction,” Broomes said. “You’ve picked and chosen who gets exceptions and who doesn’t and what those exceptions are going to be.”
The governor’s lawyer, Lumen Mulligan, argued the executive order was not directed toward religion.
The order, he said, was part of a broad strategy of restrictions for trying to slow the spread of the coronavirus across Kansas.
“These orders do not target religion,” Mulligan said. “They are rather a piece of a broad set of social-distancing rules, which apply to schools, to doctors to offices…”
Broomes interjected, pointing to the specific clause in the order limiting religious activities to 10 or fewer people.
“I don’t see how you can say that doesn’t target religion when it’s specifically, expressly aimed at church activities,” he said. “How can you say that?”
Mulligan pointed to a section in the executive order that banned mass gatherings in auditoriums, movie theaters, museums, stadiums, fitness centers, recreation halls and pools.
He also pointed out that the governor signed an executive order closing schools.
But Broomes walked the Kelly administration’s lawyer through several of the 26 exemptions in the order for restaurants, group homes, food pantries and detoxification centers, among others.
Mulligan said some of those exceptions – like group homes, food pantries, shelters and detox centers – were essential to protecting the safety and health of Kansans or were different from the intimate environment of a church.
The governor “asserts that despite the express restrictions imposed on religious assembly, the laws are facially neutral because they apply as well to a much broader swath of secular activity,” Broomes wrote in his opinion.
“Nevertheless, while these executive orders begin with a broad prohibition against mass gatherings, they proceed to carve out broad exemptions for a host of secular activities, many of which bear similarities to the sort of personal contact that will
occur during in-person religious services,” he wrote.
The decision came two days after two churches sued the governor over her executive order limiting mass gatherings at church services in an effort to slow the spread of the coronavirus.
The First Baptist Church of Dodge City and Calvary Baptist Church of Junction City are asking Broomes – appointed to the bench by President Donald Trump – to block the state from enforcing the executive order and declare it unconstitutional.
The churches charge that the executive order violates their constitutional right to freely exercise their religion as guaranteed by the First Amendment.
“Plaintiffs sincerely believe that the Bible teaches the necessity of gathering together for corporate prayer and worship and that such assembly is necessary and good for the church and its members’ spiritual growth,” the lawsuit states.
The executive order, the lawsuit says, burdens the churches’ religion by prohibiting them from holding in-person church services with more than 10 people not involved in the service.
The lawsuit contends the executive order substantially interferes with the churches’ “ability to carry out their religious doctrine, faith, and mission.”
The lawsuit also says the executive order violates their constitutional right to free speech because it prohibits them from “engaging in religious speech through their church services, which occur exclusively on private property.”
It also contends the order violates churchgoers’ constitutional rights to assemble.
Lawyers for the churches argue they are being singled out from other secular businesses that are exempted from the order.
During the approximately hour-long hearing on Friday, Broomes repeatedly returned to the list of exemptions in the order, including one for restaurants so long as they “preserve social distancing of 6 feet between tables, booths, bar stools and ordering counters.”
Broomes questioned why churches could not gather so long as they complied with social distancing protocols that they detailed in their lawsuit.
The First Baptist Church, among other measures, limited in-person services to 50 people in a room with capacity for 300 at the outset of the coronavirus taking a hold in Kansas.
“There are a lot places here where the government has decided to allow activities to proceed with appropriate social-distancing efforts in place,” he said.
Broomes is requiring the churches that brought the lawsuit to comply with a series of health requirements that they proposed while the temporary restraining is in place.
The requirements for First Baptist Church of Dodge City include:
- Deep cleaning the facility before and after the service.
- In-person services will be limited to 50 individuals in a space that has a capacity for 300 people.
- Anyone attending the service will be advised to perform temperature checks at home before attending the service.
- Hand sanitizer will be available for use throughout the facility
- Individuals who are ill or have fevers will not attend.
- High-risk individuals will be advised not to attend the in-person service.
- Attendees will be advised to bring their own personal protection equipment, including masks and gloves
The requirements for Calvary Baptist Church include:
- Marking multiple entrances to encourage socially distanced foot traffic.
- Propping doors open so church members don’t have to touch doors while entering and exiting the church or sanctuary.
- Suspendi passing offering plates and bulletins.
- Actively discouraging handshaking or other social touching.
- Offering hand sanitizer throughout the building.
- Providing face masks to offer to any interested persons.
Late Saturday night, Kansas Heath Secretary Lee Norman criticized the social-distancing protocol in the judge’s opinion.
“It bothers me that judges are putting out public health proclamations,” Norman tweeted.
“I can’t wait for my opportunity to adjudicate at court! I have as much training at that as they have at medicine and public health,” Norman said in his post.
Leading Republican lawmakers tried to revoke the governor’s order based on its inconsistent application between churches and secular businesses. But the state Supreme Court found they didn’t have the authority to rescind the order.
“This is what we’ve said all along,” House Speaker Ron Ryckman Jr. said in a statement.
“Kansans need to stay home and protect their neighbors,” he said. “But in doing that, the state cannot – and should not – set up a double standard where people are allowed to gather at an ice cream shop but arrested for a gathering at a church.”
A violation of the executive order could carry a penalty of 12 months in jail and a $2,500 fine.
Senate President Susan Wagle said the governor ignored the advice of the attorney general who said the order was unconstitutional and wasted time and money by challenging lawmakers’ decision to revoke the measure.
“Ultimately, the people were forced to stop her, and today, the people prevailed.”
The Kansas court case reflects the growing number of legal disputes nationally pitting religious freedom against efforts to slow the spread of the coronavirus.
A little more than a week ago, a federal judge in California rejected lawsuit that a church brought against San Diego County charging that public health orders prohibiting gatherings discriminated against their religious freedom.
In that case, U.S. District Judge Cynthia Bashant found that the state had authority to limit the exercise of religion when faced with a public health crisis.
Bashant said government agencies were not required to grant religious exemptions to shelter in place.
Bashant said any harm suffered by the church did not override the government’s compelling interest to manage a health crisis.
The judge said the church could live-stream its service, as many others did on Easter Sunday and other days as well.
Meanwhile, pastors from three churches in the San Bernardino area filed a lawsuit last week against California Gov. Gavin Newsom, Attorney General Xavier Becerra and an array of local officials in San Bernardino and Riverside counties.
The pastors in that lawsuit argue that that social-distancing orders violate their constitutional rights to freedom of religion and assembly.
The second lawsuit was filed in the Central District of California. The first lawsuit that was aside in San Diego was filed in the Southern District of California.
Meanwhile in Louisville, Kentucky last Saturday, a federal judge found in favor of a church that had sued the city over a ban on drive-in church services.
The judge in that case said the city had “criminalized the communal celebration of Easter,” the Louisville Courier Journal reported.
Also last week, Attorney General William Barr said churches would not be singled out as local officials work to stop the spread of the corona virus.
The U.S. Justice Department filed a statement of interest supporting a church in Greenville, Mississippi, where local officials had said churches would be closed for in-person and drive-in services as long as the statewide stay-at-home order was in place. Local officials later backed off that position.
