WICHITA, Kansas — Gov. Laura Kelly filed a joint motion this weekend with two churches suing her over stay-at-home orders, signaling her first steps to reopen the Kansas economy and tamp down the fight over religious freedom.
The motion filed in federal court Saturday night promises a new executive order from Kelly allowing large gatherings — including church services — as long as people stay six feet apart from each other and follow other protocols to check the spread of the coronavirus.
That marks the governor’s latest compromise to prevent the close contact that could feed the spread of COVID-19 while gradually opening up commerce in the state.
Kelly had faced a challenge tied up in legal technicalities against the backdrop of how far a chief executive could go to stem a public health crisis without violating constitutional rights of freedom to assembly and religion.
In the joint filing with the churches who sued over her orders that said even church services were subject to 10 people or fewer, Kelly said Kansas will begin to lift many restrictions on public gatherings beginning May 4.
The order would include one key remaining rule: Groups won’t be allowed to gather too tightly. Rather, they’d need to keep six feet between one person and the next.
Kelly promised in the legal filing to alert the lawyers for the church that sued her — First Baptist Church of Dodge City and Calvary Baptist Church of Junction City — the terms of her next order before it kicks in on May 4.
The motion filed by both sides in the suit doesn’t necessarily end the legal fight. The churches could challenge her again if they act within two days of Kelly’s coming order.
And the motion does, repeatedly, contain the phrase “unless public health information dictates otherwise.”
The governor said in a statement late Saturday that “we have the law on our side,” but that the temporary deal struck with the churches lets her balance trying to stop the spread of the coronavirus against “working to restart the economy.”
“My highest priority has been, and will continue to be,” Kelly said in the statement, “keeping Kansans safe during this pandemic.”
The case pitting the governor against churches remains unsettled. A federal judge had issued a temporary restraining order giving the two churches a pass on Kelly’s prohibition.
The joint motion filed by attorneys for Kelly and the churches stretched that to May 16 — unless the churches file an objection to whatever executive order Kelly issues to take effect May 4.
Several states have faced legal challenges over similar orders meant to stop the spread of the coronavirus, each lawsuit arguing that such regulations violate the U.S. constitution. But Kansas is the first to have the rule put on hold.
U.S. District Judge John Broomes in Wichita explained that he issued a preliminary injunction because Kelly’s executive order issued April 7, and its predecessor put greater restrictions on religious organizations than previous orders had put on things like airports, grocery stores and public transportation. But the judge said that Kelly had not proved religious gatherings were inherently more dangerous.
Saturday’s motion puts on hold weeks of legal battles at the state and federal levels over Kelly’s restrictions. The ruling also follows a few others in federal courts around the country, where judges rejected arguments that similar orders violated the U.S. Constitution in pursuit of slowing the spread of the coronavirus.
The Kansas churches sued the governor April 16 after local law enforcement threatened criminal charges if the churches continued to violate Kelly’s order.
In the lawsuit, the churches argued Kelly violated both their First Amendment right to freely exercise religion, as well as the Kansas Preservation of Religious Freedom Act.
Broomes, put on the court two years ago by President Donald Trump, approved a temporary restraining order on April 18 that allowed the churches to meet as long as they followed a strict set of guidelines like doing temperature checks, wearing masks and remaining six feet apart. That’s the order that was effectively extended through May 16 in Saturday’s filing.
Attorneys representing Kelly had argued in a filing that the case should be dismissed because the churches don’t have a right to sue a state in federal court due to the Eleventh Amendment. The argument hinges on whether or not the Judge believes that Kelly is responsible for enforcing the executive order
Attorneys representing the two churches argued Kelly is not immune, and that the governor said in arguments before the Kansas Supreme Court in mid-April that during an emergency her “authority is at its maximum.”
The churches’ attorneys added that Kelly “claim the maximum extent of her executive and legislative powers when making sweeping legislative decrees and marshalling the full might of the state’s military, administrative, and law enforcement officers to meet a public health emergency, and then attempt to hide behind the ‘discretion’ of local law enforcement officers when she has gone too far.”
At time of Saturday’s filing, Kansas had recorded more than 3,000 cases of the coronavirus, including 117 deaths. And the rate of cases was spiraling upward in and around the meatpacking plants of southwestern Kansas.
State health officials have said a couple of clusters in the eastern part of the state happened after religious gatherings. Kelly initially restricted several types of gatherings to 10 or fewer people in late March, but extended it to church services and funerals on April 7.
Most Kansas churches have discontinued in-person meetings and are streaming their services. Kansas Interfaith Action, a nonprofit that promotes faith-based action on issues like climate change and social justice, filed an amicus brief showing their support for Kelly’s orders.
Broomes’ ruling comes three weeks after the Kansas Supreme Court upheld Kelly’s executive order, which initially was rescinded days before Easter by a seven-member panel dominated by Republican legislative leaders.
Similar lawsuits have been filed in several states, including Texas, New Mexico, Kentucky, Florida and Mississippi. In the Mississippi case, members of a Greenville church were fined after attending a service in their parking lot listening to the sermon on their car radios. But the city lifted its restrictions after U.S. Attorney General William Barr filed a statement of interest in the case.
Elsewhere, federal courts have ruled in favor of state governments. In New Mexico, a judge did not grant a temporary restraining order on an order limiting gatherings of more than five, saying the restriction that came days before Easter was generally applicable and not discriminatory to churches.
“Religious activity’s relatively late recategorization stemmed not from hostility toward religion, but rather solicitousness towards religion,” the judge said, adding, “(New Mexico’s health secretary) sought to preserve religious organizations’ leeway to conduct services as long as possible until COVID-19 became too severe to continue affording such latitude.”
The governor’s executive orders are made possible by a state of emergency declaration that ends May 1. Only the full Legislature is allowed to extend her declaration, and it isn’t clear when it’ll resume the 2020 session.
Brian Grimmett reports on the environment, energy and natural resources for KMUW in Wichita and the Kansas News Service. You can follow him on Twitter @briangrimmett or email him at grimmett (at) kmuw (dot) org.
The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy. Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.