Kansas governor can't single out churches in COVID rules, judge says

Denver Newsroom, Apr 20, 2020 / 23:31 pm

The Kansas governor's emergency restrictions on church services wrongly treated religious gatherings more strictly than similar activities, a federal judge said.

The judge granted a temporary injunction to two Baptist churches which challenged the order.

"Churches and religious activities appear to have been singled out among essential functions for stricter treatment," U.S. District Judge John Broomes said in an April 18 ruling, saying the restrictions are "more severe than restrictions on some comparable non-religious activities."

Gov. Laura Kelly's rules "basically eliminated" association for the purpose of public worship, the judge said. The governor did not argue that church gatherings pose unique health risks, he said, and "the exemption for religious activities has been eliminated while it remains for a multitude of activities that appear comparable in terms of health risks."

The judge said that the plaintiffs are likely to succeed in their case and will suffer religious freedom violations because the order was not "narrowly tailored" enough to further the "compelling" state interest in countering the spread of the coronavirus.

Chuck Weber, executive director of the Kansas Catholic Conference, told CNA April 20 that the Catholic bishops have tried to be a partner in the coronavirus response and commended the governor's previous efforts, but found the restrictions imposed on religious gatherings in the days before Easter to be "troublesome."

"We are grateful for this challenge and will be following the legal developments," Weber said.

The plaintiffs are two churches and their pastors from different parts of Kansas: First Baptist Church in Dodge City in western Kansas, joined by Calvary Baptist Church in Junction City in northeast Kansas. Both churches are practicing social distancing measures at services, but say they believe engaging in "corporate" prayer is a call from God, the Associated Press reports.

The lawsuit from the two churches said the governor could have used less restrictive measures and that the presence of numerous exceptions for "essential" businesses, but not churches, meant her policies unfairly targeted churches.

Gov. Kelly, however, defended the restrictions and characterized the judge's decision as "preliminary."

"This is not about religion. This is about a public health crisis," she said, adding that six deaths and 80 cases of coronavirus originated at religious gatherings. As of Monday, there have been more than 100 coronavirus deaths and almost 2,000 confirmed cases in the state.

"We all want to resume our normal lives as soon as possible, but for now the data and science tell us there's still a serious threat from COVID-19 – and when we gather in large groups, the virus spreads," the governor continued. "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. During public health emergencies, we must take proactive measures to save lives."

Weber said Kansas' Catholic bishops have "tried to reach out and be a partner in navigating these admittedly complex situations."

"The Kansas Catholic Bishops certainly recognize that Governor Laura Kelly has a duty and responsibility to protect the public health of citizens and make use of executive orders to accomplish that goal," he said, noting that the bishops' early comments on these orders commended her actions.

"In times like this it can become easy to forget that separation of church and state is a two-way street--a 'street' that should be shared by the government and faith communities," he added.

The governor's initial executive orders banned gatherings of more than 10 people, with religious gatherings among the exemptions as long as appropriate social distancing was practiced.

Then, in an April 7 executive order, the governor stressed the need for enhanced measures to slow the spread of the coronavirus. For the first time the governor listed "churches or other religious facilities" as venues where mass gatherings were banned, alongside auditoriums, theaters, stadiums, and other venues. The order had specific restrictions on religious activities, barring more than 10 congregants in "the same building or confined or enclosed space." It allowed those who conduct or perform a religious service to exceed the 10-person limit so long as appropriate safety protocols are followed.

In an April 8 statement, the bishops noted their own suspension of public Catholic worship and large public gatherings at Catholic Church facilities predated state and local orders in Kansas. However, they said the order was "troubling" because "it specifically singles out restrictions on churches and religious activities while granting numerous exemptions to other public gatherings that present the same risk to public health."

"We question the constitutionality of this order," they said.

Broomes, the federal judge, said the numerous exceptions for businesses were "arbitrary." He said the order included a "long list" of exempt activities and facilities: most governmental operations; airports; childcare locations; hotels; food pantries; shopping malls; and other retail establishments with large numbers of people but "not within arm's length of one another for more than 10 minutes"; restaurants, bars and grocery stores, provided social distancing is maintained; office spaces; and manufacturing, distribution and production facilities.

The temporary injunction, which applies only to the two churches, will last until May 2. A Thursday hearing will weigh whether the injunction should be lengthened or broadened.

The Baptist churches' lawsuit has the backing of the legal group Alliance Defending Freedom.

"Singling out churches for special punishment while allowing others to have greater freedom is both illogical and unconstitutional," Alliance Defending Freedom senior counsel Ryan Tucker said April 18.

He added that the judge's decision said the churches are to follow their own social distancing practices, "which these churches are obviously happy to do, since they proposed those rules themselves for everyone's health and safety."

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Tucker voiced hope that the governor will "act quickly to remedy the unconstitutional provision of her mass gathering ban and avoid the need for continued litigation."

Republican legislators had sought to remove Kelly's order on church gatherings, but the governor contested their efforts before the state Supreme Court, which declined to rule on the merits of the case.

Kansas House Speaker Ron Ryckman Jr., a Republican, told the Associated Press that people need to stay home but "the state cannot and should not set up a double standard."

State Rep. John Carmichael, a Wichita Democrat, appeared sympathetic to the argument that churches faced more severe restrictions.

"I think a very persuasive case can be made that a number of clusters in Kansas are related to places of worship," Carmichael said, according to KWCH News. "The problem, of course, is though, if you treat other types of gatherings differently or less stringently than a church, then you have a problem."

Weber reflected on the situation in the state. The Diocese of Salina in northwest Kansas had not yet reported any COVID-19 case, but metro Kansas City and other populated areas have suffered hundreds of cases.

"No one-and I mean no one-wants a return to 'normal' any more than the four Catholic Bishops of Kansas," he said. "This has been brutal on faithful Catholics, but also on our Catholic priests who have experienced a separation from the flocks they love and seek to serve."

The bishops have reiterated that public Masses may not take place in Kansas. Funeral Masses, baptisms, wedding Masses are allowed only with no more than 10 people present, and only with appropriate precautions.

These measures will remain in place as long as the bishops deem them necessary, relying upon "the best advice of medical professionals," Weber said.