TOPEKA – The governor’s new executive order restricting in-person religious gatherings as a COVID-19 countermeasure is sound public-health advice that Kansans should follow, but the order likely violates state constitutional and statutory protections for religious freedom and must not be enforced by arrest, prosecution, fines or imprisonment for worshiping, Attorney General Derek Schmidt said Wednesday.
“The Office of Attorney General strongly encourages all Kansans participating in religious services or activities to voluntarily comply with the new restrictions on religious mass gatherings in order to protect public health,” Schmidt wrote in a memorandum to law enforcement agencies and prosecutors statewide. “Nevertheless, ... we also strongly discourage law enforcement from attempting to enforce the requirements of Executive Order 20-18 as violations of the criminal law. 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.”
Wednesday’s memorandum was the second Schmidt has provided to assist law enforcement and prosecutors statewide in navigating the legally uncertain world of enforcing emergency orders during the current COVID-19 crisis. He said further guidance was necessary because the new executive order singles out for additional regulation the exercise of a fundamental freedom expressly protected by the Kansas Constitution and by state statute. Schmidt noted that Section 7 of the Kansas Constitution’s Bill of Rights, as well as the state’s Preservation for Religious Freedom Act, both set strict limits on the authority of any state or local government authority, including the governor, to restrict the religious freedoms of Kansans.
“Kansas statutory and constitutional law, which remain in effect, provide substantially more protection for Kansans’ fundamental religious freedoms than does federal law,” Schmidt wrote. “Because no Kansan should be threatened with fine or imprisonment, arrested, or prosecuted for performing or attending church or other religious services ..., law enforcement officers are advised to encourage cooperative compliance with the new provisions of EO 20-18 and to avoid engaging in criminal enforcement of its limitations on religious facilities, services or activities.”
During an emergency, such as the COVID-19 pandemic, temporary restrictions on even fundamental rights may be lawful, but only if the government proves they are the least restrictive means necessary to meet the emergency. In this case, executive orders prohibiting indoor gatherings of more than 10 people in churches, synagogues, temples and mosques but still allowing larger groups to gather in shopping malls, retail stores, libraries and numerous other places as long as they practice social distancing cast serious doubt on whether the burden on religion is the least restrictive means necessary.
A copy of the attorney general’s memorandum is available at https://bit.ly/39TdwgL.
