ADF sues KS governor over COVID-19 order that allows numerous gatherings, except churches

TOPEKA, Kan. – Alliance Defending Freedom attorneys representing two Kansas churches filed suit in federal court Thursday against Gov. Laura Kelly to challenge a provision of her statewide shelter-in-place order that singles out churches from holding gatherings of 10 or more people while allowing numerous secular gatherings that exceed that number, including bars, restaurants, libraries, and shopping malls. ADF attorneys also filed a motion for a temporary restraining order on Friday.

The two churches of less than 100 people each are in rural Kansas counties with COVID-19 infection rates of less than one-tenth of one percent, and both churches have voluntarily implemented rigorous social distancing measures, including temperature checks, six-foot separations between persons or families, drastic occupancy limit reductions, no usage of church bulletins or offering plates, increased ventilation, availability of masks and hand sanitizer, and more. The churches are also working to hold drive-in or outdoor church services but wish to be able to safely meet in the church building if such services are not feasible.

“Singling out churches for special punishment while allowing others to have greater freedom not only makes no logical sense, it’s clearly unconstitutional, just as numerous others have warned the governor,” said ADF Senior Counsel Ryan Tucker, director of the ADF Center for Christian Ministries. “Gov. Kelly has had ample opportunity to correct the obvious constitutional problem with issuing a church-specific ban and has chosen not to. So we have no choice but to go to court to defend the constitutionally protected freedoms of these congregations.”

The governor’s executive order carves out broad exemptions for 26 types of secular activities from its gathering ban, but the order singles out “churches and other religious services or activities” of 10 or more people regardless of whether social distancing, hygiene, and other efforts to slow the spread of COVID-19 are practiced.

This prompted Kansas Attorney General Derek Schmidt to issue a memorandum to all Kansas prosecutors and law enforcement stating that the religious gathering prohibitions of the order “likely violate both state statute and the Kansas Constitution.” In light of that, the Kansas Legislative Coordinating Council voted to rescind the governor’s religious gathering ban. Kelly took the matter to the Kansas Supreme Court, which ruled that the legislature didn’t have the authority to rescind the order, and that a separate lawsuit would need to be filed to challenge the constitutionality of the ban.

So ADF attorneys filed First Baptist Church v. Kelly in the U.S. District Court for the District of Kansas on behalf of First Baptist Church and its pastor, Stephen Ormord, in Dodge City and Calvary Baptist Church and its pastor, Aaron Harris, in Junction City. Joshua Ney and Ryan Kriegshauser, two local attorneys, are serving as co-counsel in the case for the two churches.

As the lawsuit notes, U.S. Attorney General William Barr issued a statement on April 14 related to an ADF case in Mississippi that explains the federal government’s position that “the First Amendment and federal statutory law” prohibit governments from “impos[ing] special restrictions on religious activity that do not also apply to similar nonreligious activity.”

“For example,” Barr wrote, “if a government allows movie theaters, restaurants, concert halls, and other comparable places to assemble to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings. Religious institutions must not be singled out for special burdens.”

 

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.