This article discusses the Kansas state legislature’s override of the governor’s ban on in-person gatherings of 10 or more at religious institutions, despite the risks this may pose to Coronavirus response efforts. This post also includes a brief discussion of the sources of state authority for responding to public health emergencies.

Most governors have now issued emergency Executive Orders encouraging stay at home activities. These orders are generally accompanied by a list of “essential” or “critical infrastructure” activities/businesses/workers that are exempted from enforcement actions that might be brought against violators of the orders. The vast majority of states, including Indiana, have required that religious institutions adhere to the social distancing best practices, including barring such entities from holding in person gatherings of more than 10 people.

To show how different states are handling this, consider the cases of Indiana and Michigan:

• Under Indiana’s Executive Order, “Religious Entities” are considered “Essential Businesses and Operations,” however, they are required to adhere to the CDC’s guidance on local gatherings, which discourages in person gatherings where outbreaks are taking place.
• Under Michigan’s Executive Order, “places of religious worship, when used for religious worship,” are not considered critical infrastructure, however, they are “not subject to penalty” for violations of the state stay at home rules.

While it is a governor who generally issues these orders, and governors are the authorities that are largely looked to for leadership during the emergency, the governor’s authority to address public health emergencies is granted to them by the state legislature, through the legislature’s passage of emergency management and other potentially restrictive laws.

This little-known fact has come to light with the news that the Kansas legislative leadership, just days before Easter, has thrown out the governor’s prohibition against religious entities holding large in-person gatherings. The legislative leadership has done this despite knowing that doing so runs contrary to public health recommendations, and knowing that church gatherings have caused three significant COVID-19 case clusters in the state already.

In addition to the legislature taking this step, the state’s Attorney General has issued a memorandum indicating the order may be contrary to the protections of religious worship offered by the state’s Constitution and Religious Freedom Law, arguing that the strong fines and criminal penalties under the Executive Order do not constitute the “least restrictive means of furthering that compelling governmental interest.” While the Attorney General “advises Kansans to adhere to the limitations on religious and faith-based gatherings,” he discourages sheriffs from enforcing the criminal enforcement of the law.

The governor responded by calling the legislature’s action “shockingly irresponsible” and likely to cost lives. The governor’s legal counsel is exploring what options they may have available to challenge the legislature’s actions.