After Kansas Governor Laura Kelly, a Democrat, ordered all religious services to be cancelled if they could not limit gatherings to groups of 10 or less, Kansas Attorney General Derek Schmidt has advised police not to enforce the order, as it is likely unconstitutional.
In an official statement, Schmidt encourages Kansans to voluntarily comply with the order to promote public health and safety, but notes that it is likely a violation of the Kansas constitution for police to crack down on religious gatherings, even during a pandemic.
Schmidt wrote in a memorandum to police that while his office suggests Kansans “voluntarily comply with the new restrictions on religious mass gatherings in order to protect public health.”
Schmidt also notes that his office will “also strongly discourage law enforcement from attempting to enforce the requirements of EO 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.”
The Attorney General noted that the state’s constitution remains in place, despite the pandemic, and should not be violated.
Schmidt seems to suggest that, should police seek to enforce the executive order, the cases will not have his office’s backing in court.
According to a press release on Schmidt’s government website, “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.”
The press release concludes, “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.”
Many have questioned the wisdom in restricting Americans from working and going to church, while allowing them to gather in large numbers are supermarkets.