TOPEKA, Kan. — Kansas Republican leaders on Wednesday revoked Democratic Gov. Laura Kelly’s order limiting religious gatherings to 10 people, paving the way for churches to meet on Easter Sunday – a scenario health officials fear will further spread the deadly coronavirus across the state.
House and Senate leaders — meeting as a body called the Legislative Coordinating Council — voted along party lines to throw out the directive 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.
Kelly denounced the decision at a late afternoon press conference, calling it “shockingly irresponsible” and one likely to cost Kansan lives.
She said she instructed her legal counsel to explore a court challenge.
“There are real life consequences to the partisan games Republicans played today,” Kelly said.
But the 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 law enforcement not to enforce it. Violations of the order would have been a misdemeanor offense.
Senate President Susan Wagle, a Wichita Republican also running for U.S. Senate, called the order an overreach by Kelly. Most people had already decided not to go church.
“I think they were just very upset with the fact that the government was going to tell them that they couldn’t practice their religion,” Wagle said.
Asked if she was concerned more people will contract the virus and die, Wagle responded that behaviors won’t change much. She said most people are aware the virus is highly contagious and are protecting themselves and want to limit its spread, “but don’t tell us we can’t practice our religious freedoms.”
The vote to revoke the order followed more than an hour of discussion and debate, as lawmakers quizzed officials from Kelly’s administration. Kelly’s chief of staff, her chief counsel, and Lee Norman, the secretary of the Kansas Department of Health and Environment, all stressed the importance of limiting gatherings.
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 putting on the service, such as pastors and choirs, 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 held 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.”
Norman has tied three clusters of coronavirus cases to church gatherings. One, in Wyandotte County, involved a ministers conference. Another occurred in Sedgwick County, he said without offering details. He hasn’t identified the location of the third.
For its part, Wyandotte County has said it has three church-related clusters. And Senate Minority Leader Anthony Hensley, a Topeka Democrat, said two of his constituents have died from the virus. Both had traveled to Wyandotte County for church gatherings, he added.
Churches must now decide whether to hold in-person gatherings on Easter. At Central Community Church in Wichita, the church’s board was expected to meet Wednesday night to decide if the church will hold in-person services this Sunday.
Easter services at least double the regular attendance at the church, senior pastor Bob Beckler said. Beckler said his main concern is making sure the elderly members feel safe. The church of roughly 3,000 members has been live streaming services for a few weeks.
“But we don’t look at it as a time to where we can get more funds,” Beckler said. “We actually look at it as a time where we can do more things, where we have Easter egg hunts and we just … give people the truth of what they need to know.”
Matthew Vainer, spokesman for the Catholic Diocese of Wichita, said revocation of the governor’s order won’t change the diocese’s plans to livestream Holy Week and Easter Sunday services to parishioners staying at home. The diocese had previously suspended in-person Masses at all of its parishes, he said.
At some point, the diocese will discuss how and when to begin holding services again and whether it’s safe for parishioners, Vainer said. But it hasn’t done that yet and likely won’t until after Easter.
“We would figure out what’s best for all of our parishes,” he said.
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