A judge in the U.S. District Court for the District of Kansas issued a temporary restraining order on April 18 to allow in-person church services as long as they comply with social distancing guidelines.
The case was brought by two Baptist churches who challenged the order, arguing that Kelly’s orders would violate the congregants’ rights, including their First Amendment right to the free exercise of religion.
Alliance Defending Freedom, the religious rights legal organization representing the churches, said Kelly’s orders single out churches from holding gatherings of 10 or more people while it still allows numerous nonreligious gatherings that exceed that number.
The organization said the churches have less than 100 people each in rural counties in Kansas where the infection rate is less than one-tenth of one person. Moreover, the two churches have also implemented strict social distancing measures including temperature checks, six-foot separations between persons, and occupancy limit reductions.
Judge John Broomes, a President Donald Trump appointee, said on April 18 (pdf) that the two churches are “likely to suffer irreparable harm in the form of denial of their constitutional right to the free exercise of their religion, arising from state-imposed restrictions on religious exercises that are not narrowly tailored to further the compelling governmental interest in halting the spread of COVID-19, and which are more severe than restrictions on some comparable non-religious activities.”
Broomes added that the churches are also likely to succeed in their claim alleging a violation of their First Amendment right. The order will remain in effect until May 2.
The two churches are also required to adhere to a number of social distancing and public health protocols meant to mitigate the risk of the spread of the pandemic.
This comes after the Justice Department weighed in on the ongoing dispute between religious leaders and state and local officials trying to contain the spread of the CCP virus, commonly known as the novel coronavirus.
The department argued in a statement of interest in a similar dispute involving a church in Mississippi that although it’s important for local and state officials to impose restrictions to enforce social distancing, they aren’t allowed to single out church and religious entities for distinctive treatment.
Any government restriction must be neutral, in that any restriction applied on religious activity must be applied the same as to a nonreligious activity, Attorney General William Barr said in a statement.
“For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings,” he said. “Religious institutions must not be singled out for special burdens.”
Ryan Tucker, senior counsel for Alliance Defending Freedom, welcomed the decision.
“Singling out churches for special punishment while allowing others to have greater freedom is both illogical and unconstitutional,” Tucker said in a statement. “We’re pleased that the court halted the governor from subjecting our clients to that type of targeting and agreed that the churches are likely to prevail on their claim that doing so violates the First Amendment.”
Kansas Attorney General Derek Schmidt also supported the court’s decision, saying in a statement that the “ruling is a much-needed reminder that the Constitution is not under a stay-home order and the Bill of Rights cannot be quarantined.”
“The Constitution protects our liberties especially during times of crisis, when history reveals governments too quick to sacrifice rights of the few to calm fears of the many. As I have consistently counseled, the governor of Kansas must not discriminate against religious gatherings by threatening worshipers with arrest or imprisonment while allowing similar secular gatherings to proceed,” Schmidt said.
He added that while the government may not impose restriction selectively on Kansans of faith but not others, he still strongly urged Kansas religious leaders to cancel all in-person service and to worship remotely during the pandemic.
Kelly continued to defend her order despite the ruling. “This is not about religion. This is about a public health crisis,” she said in a statement to The Associated Press.
Kelly’s executive order (pdf) restricts religious gatherings of more than 10 congregants but provides for exemptions to 26 types of secular activities such as in airports or some essential retail establishments.
Last week, the Kansas Legislative Coordinating Council attempted to undo Kelly’s order on church gatherings, but its attempt was overturned after the governor took the matter to the state’s supreme court.