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Judge rules against Kansas governor’s order limiting in-person church gatherings

Capt. Patrick Bracken, 9th Reconnaissance Wing Protestant Chaplain, live streams church services, Mar. 29, 2020 at Beale Air Force Base, California. (U.S. Air Force photo by Airman 1st Class Luis A. Ruiz-Vazquez)

A U.S. District Court of Kansas judge issued a temporary restraining order on Saturday against part of Gov. Laura Kelly’s executive order that limited church gatherings to 10 or fewer people, a ruling that paves the way for in-person religious services without violating the law.

The ruling is the latest in a saga about religious freedom that caught national attention after Kelly signed an order banning the gatherings, which had already been in effect amid the coronavirus pandemic, but added “churches or other religious facilities” to the list five days before Easter. The addition sparked a board of the state’s top legislators overriding the order and then the Kansas Supreme Court striking down the override. The Kansas court never ruled on the constitutionality of the order, which is what was brought up in a lawsuit filed Thursday by a couple of pastors and their two churches.

Judge John Broomes heard arguments for about 75 minutes on Friday during a telemeeting. Broomes issued his decision Saturday.

“Plaintiffs have made a sufficient showing that a live controversy exists as to whether the Governor’s current restrictions on religious activity … violate Plaintiffs’ First Amendment right to freely exercise their religion,” the ruling says. “Defendant has not argued that mass gatherings at churches pose unique health risks that do not arise in mass gatherings at airports, offices, and production facilities. Yet 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 order requires the two churches to practice social distancing and continue health protocols the churches started before the limitation on gatherings. Broomes also added a list of 24 protocols the churches need to follow, including attendees checking body temperatures before attending and having a single point of entry and exit on opposite sides of the building.

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Alliance Defending Freedom senior counsel Ryan Tucker said they are pleased with the outcome.

“In light of the court’s order, we hope the governor will act quickly to remedy the unconstitutional provision of her mass gathering ban and avoid the need for continued litigation,” Tucker said in a news release.

Kelly said the ruling is not the end.

“This is not about religion. This is about a public health crisis. 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,” Kelly said in a news release. “Courts across the country have recognized that during this pandemic emergency the law allows governments to prioritize proper public health and safety.”

Kelly said six people have died and 80 have been infected from cases originating at religious gatherings. She said there have been at least eight other similar legal challenges across the country and none of the other courts have rules against mass gatherings.

On Friday, Broomes asked the governor’s attorneys if they wanted to have a preliminary injunction hearing if he ruled in favor of the pastors. When the attorneys indicated they did, Broomes set up an in-person hearing for 9 a.m. Thursday to hear whether or not churches should be able to hold in-person services.

Saturday’s ruling addressed a constitutionality issue, answering if churches were being singled out in Kelly’s order. The suit said Kelly’s order violated the first amendment and the Kansas Preservation of Religious Freedom Act.

The suit was filed by Junction City pastor Aaron Harris of Calvary Baptist Church and Dodge City pastor Stephen Ormord of First Baptist Church. They are being represented by the Alliance Defending Freedom. Kelly is the only defendant.

Attorneys for the Alliance Defending Freedom argued the order singled out religion while exempting “26 types of secular activities,” including bars, libraries and shopping malls, according to court filings.

“So under the current (order) … a large group of people are permitted to get together at an office complex and have unrestricted meetings discussing real estate and real estate issues,” an attorney with the Alliance Defending Freedom told Broomes. “But if a group of people wanted to get together in that same office building to have a Bible study or conduct a religious service, they would be prevented from doing so.”

Additionally, no evidence exists showing practicing social distancing guidelines would be riskier in a religious setting, the attorneys said. Citing Kansas Department of Health and Environment Secretary Lee Norman, the attorney said 35 coronavirus clusters had been identified in Kansas: 13 from private companies which represents a rising number in a “relatively short time frame” and five from religious organizations.

The governor’s attorneys pointed out the latest executive order says it “should be read in conjunction with previous executive orders.” Previous orders shut down schools and banned evictions, attorneys noted.

Churches weren’t being singled out, the attorneys said.

Broomes didn’t agree.

“I don’t see how you can say that doesn’t target religion … when it is expressly aimed at religion,” Broomes said. “(You are) calling them out separately and that seems to be the issue here … You have picked and chosen who will get exceptions and what those exceptions will be.”

Both churches submitted a list of safety protocols that started prior to the order barring gatherings, according to court documents. Broomes asked if the churches would continue to practice those protocols if the temporary restraining order were granted. The pastors’ attorneys said the churches would.

The churches also had the backing of the Kansas Justice Insitute. The nonprofit submitted a letter saying that Kelly’s order violated “Kansas Consitution Bill of Rights … and the Kansas Preservation of Religious Freedom Act,” court filings show.

Church and religious facilities were not listed in Kelly’s first orders barring gatherings of 10 or more people. It was added to an executive order on April 7. On April 8, the Legislative Coordinating Council (LCC) rescinded Kelly’s order.

Kelly filed a suit April 9.

On April 11, hours before Easter, the Kansas Supreme Court ruled the LCC didn’t follow the procedures outlined in a resolution approved by the full Legislature.

“Governor Kelly ignored the state’s top legal advisor when he said the order was unconstitutional and wasted precious time and money by taking her legislative partners to the State Supreme Court when we tried to warn her,” Senate President Susan Wagle, who sat on the LCC, said after Broomes issued his ruling. “Ultimately, the people were forced to stop her, and today the people prevailed.”

Harris held an online and in-person Easter Sunday service. About 21 people attended in person in a church that seats 300, The Kansas City Star reported.

Ormord had a drive-in church service.

“Due to high winds and technological difficulties, the congregants were unable to hear or effectively participate in the service,” court documents say.

Kansas Attorney General Derek Schmidt previously said he didn’t believe the executive order was constitutional and advised officers not to enforce the misdemeanor offense. Schmidt, who believes in-person services should be canceled, said Broomes’ ruling shows the constitution “cannot be quarantined” by a stay-home order.

“I call on Governor Kelly to accept the court’s decision tonight and end this unnecessary legal fight that is costing taxpayers thousands of dollars in attorney fees without demonstrable public health benefit,” Schmidt said in a news release.

The protocols

Broomes’ order specified 24 protocols the churches will have to follow to have in-person services:

Prior to and following the in-person service, the facility will be deep-cleaned

Invitations will be directed to regular church attendees for this in-person service

Individuals will be advised to continue to engage in “stay at home” protocols as directed by executive order 20-16 in order to attend the service

No church members are known to have had any contact with known COVID-19 confirmed cases

Attendees will be advised to perform temperature checks at home on all attendees prior to attending the service. Individuals that 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 protective equipment, including masks and gloves

Attendees will be advised not to engage in handshaking or other physical contact

Hand sanitizer will be available for use throughout the facility

The in-person service will be limited to 50 individuals in a space that has a capacity for 300 individuals (a cross-shaped auditorium 50 feet by 74 feet at the center; 2,950 square feet total, allowing almost 57 square feet available to each attendee at maximum social distancing)

Co-habitating family units may sit closer together but otherwise the maximum social distancing possible will be used, however, at a minimum, the Center for Disease Control and Prevention recommended protocol will be observed with a minimum distance of at least six feet

A single point of entry and single point of exit on opposite sides of the building will be used, establishing a one-way traffic pattern to ensure social distancing

Ventilation will be increased as much as possible, opening windows and doors, as weather permits

These procedures will be communicated to church members in advance of the service

Church bulletin and offering plates will not be used during the service

Attendees will be advised to wash their clothes following the service

If Church leadership becomes aware of a clear, immediate, and imminent threat to the safety of the attendees or cannot follow the protocols listed above, the gathering will be immediately disbanded.

Splitting out pews and marking designated sitting areas to keep non-cohabitating congregants at least six feet apart before, during, and after the worship service

Marking multiple entrances to encourage socially distanced foot traffic

Propping doors open to prevent the need for congregants to touch doors while entering and exiting the church or sanctuary

Suspending 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.

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© 2020 The Wichita Eagle