Kansas legislature strikes down governor’s directive limiting size of religious gatherings

Kansas’s Republican-led legislature voted Wednesday to rescind Democratic Gov. Laura Kelly’s coronavirus-related order capping religious assemblies at 10 people the week of Passover and Easter.

Kelly issued the order Tuesday, prompting pushback from some state lawmakers who accused her of violating religious liberty with the order intended to comply with federal social distancing guidelines. Lawmakers voted along party lines to strike down the order Wednesday, according to the The Wichita Eagle.

State Attorney General Derek Schmidt had written in a memo Wednesday that the order was likely unconstitutional and discouraged law enforcement from enforcing it.

“In our view, Kansas statute and the Kansas Constitution’s Bill of Rights each forbid the governor from criminalizing participation in worship gatherings by executive order,” Schmidt wrote.

Kelly had said Tuesday that “this time of year is one defined by renewal celebration and community for the people of all faith. The disruptions created by this global health crisis has forced us all to approach it differently, regardless of our religious beliefs.”

Richard Levy, a constitutional law professor at the University of Kansas, told The Wichita Eagle that precedent was likely on Kelly’s side, saying the Supreme Court has held laws that do not burden specific religions are generally considered valid.

“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,” Levy said. In such cases, “it’s not about suppressing religion. It’s about the realities of the coronavirus.”

Numerous houses of worship have suspended in-person services in response to the pandemic as part of social distancing measures, with the majority of religious organizations converting to a digital format via platforms such as Skype and Zoom.

Pope Francis has presided over largely empty Holy Week ceremonies, while Saudi Arabia’s government has banned pilgrimages to Mecca.

Some religious practitioners, however, have defied bans on large gatherings meant to stem the spread of the virus, with Central, La.-based pastor Tony Spell continuing to hold services of hundreds of people even after his arrest on March 31.

Louisiana Gov. John Bel Edwards (D) issued the state’s stay-at-home order March 22, saying, “People can leave their homes to do essential things like buying groceries or food, pick up medicine or go to work only if their job is essential.” The order applies through Sunday but is subject to extensions.