War over Easter: Kansas lawmakers revoke Gov. Kelly’s order limiting church gatherings

Easter looming, Kansas Republican leaders on Wednesday revoked Democratic Gov. Laura Kelly’s order limiting religious gatherings to 10 people as the state’s coronavirus death toll jumped 40 percent.

House and Senate leaders — meeting as a body called the Legislative Coordinating Council — voted along party lines to throw out the directive. Their decision came 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 and health officials fear Easter gatherings could further spread the deadly coronavirus. Pastors and priests now confront a stark choice: forgo in-person services on Christianity’s holiest day or open church buildings and potentially risk exposing parishioners.

Kelly denounced the legislators’ decision at a late afternoon press conference, calling it “shockingly irresponsible” and one likely to cost lives.

She said she instructed her legal counsel to explore a court challenge. According to the governor, it was unclear whether an overall statewide ban on mass gatherings of more than 10 people remained in effect.

“There are real life consequences to the partisan games Republicans played today,” Kelly said.

Her 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 police not to enforce it. Violations of the order would have been a misdemeanor offense.

In the memo, Schmidt simultaneously implored Kansans to follow the order and also advised police not to arrest or cite violators. Kelly slammed the memo as unwarranted and nonsensical.

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, she said.

“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 want to limit its spread, “but don’t tell us we can’t practice our religious freedoms.”

Asked Wednesday at the daily White House briefing about the controversy over Kelly’s order, Vice President Mike Pence said President Donald Trump’s coronavirus guidelines call for Americans to avoid gatherings of more than 10.

“And that’s on the advice of all of our best scientific experts, as a way that we can, we can slow the spread,” Pence said. “But as we’ve made clear to every governor, we defer to our governors and what they believe is the best and appropriate practice in their states, and we’ll support those local decisions.”

The revocation of Kelly’s order was made possible by a resolution the Legislature passed last month allowing their leaders to cancel the governor’s directives in some circumstances. Wednesday marked the first time during the pandemic that legislative leadership had overturned an order, which has so far included closing school buildings and directing Kansans to stay at home.

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 responsible for the service, such as pastors and choir members, 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 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.

“It’s important that we make it our first priority to protect the public health and safety of Kansas citizens,” Hensley said.

House Majority Leader Dan Hawkins, a Wichita Republican, said the “vast majority” of churches were already practicing social distancing and already following guidelines to minimize the spread, including conducting services online.

Yet “the constitution still exists” during times of emergency, he said.

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 in size 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.

In a Wednesday evening news release, Sedgwick County officials clarified that a local order on public gatherings is back in effect because the state order was revoked.

“This order specifically limits all public gatherings to groups of 10 or fewer people, including in-person religious services,” county spokeswoman Kate Flavin said.

The Star’s Nicole Asbury, McClatchy DC’s Francesca Chambers and The Eagle’s Jason Tidd contributed reporting

This story was originally published April 8, 2020 at 3:33 PM.