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Kansas Gov. Laura Kelly sues GOP lawmakers for revoking her order limiting church gatherings

The Washington Post logo The Washington Post 4/10/2020 Meagan Flynn, Isaac Stanley-Becker
Kansas Gov. Laura Kelly (D) explained Tuesday why she had ordered all public and private K-12 schools in the state to close for the rest of the school year. (John Hanna/AP) © John Hanna/AP Kansas Gov. Laura Kelly (D) explained Tuesday why she had ordered all public and private K-12 schools in the state to close for the rest of the school year. (John Hanna/AP)

Kansas Gov. Laura Kelly (D) sued a Republican-controlled legislative council on Thursday after it revoked her executive order that limited church gatherings, marking the latest chapter in an escalating conflict between public health and religion during one of the holiest times of the year.

In a petition to the Kansas Supreme Court, Kelly asked the judges to resurrect her Tuesday executive order that limited religious gatherings and funerals to 10 people amid the covid-19 pandemic. She argued Wednesday’s party-line vote revoking her order, by the seven-person Legislative Coordinating Council, was unconstitutional.

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In an interview Thursday, Kelly called the vote “mind-blowing.”

“This is a purely political move, one that I find incredibly unfortunate,” she said. While the legislature as a whole has the authority to check her emergency powers, she argued, the seven-person council does not.

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The rift between the governor and GOP legislative leaders caused mixed messages and confusion across the state this week, as thousands prepare to celebrate Easter while sticking to social distancing guidelines. In Kansas, which has more than 1,100 confirmed cases of the novel coronavirus, Kelly said the vast majority of churches have complied with the guidelines, offering virtual worship services instead. But a few have not, she said.

She made the decision Tuesday to extend a ban on gatherings of more than 10 people to churches after health officials learned that church events are responsible for three clusters pf coronavirus cases across the state. She stressed that the order limited but did not ban worship services.

But immediately, her order was met with stiff resistance from Republican lawmakers and law enforcement, setting up a battle over religious freedoms that has played out nationwide.

Kansas Attorney General Derek Schmidt (R) advised police not to enforce it, writing in a memo Wednesday that the state Constitution “forbid[s] the governor from criminalizing participation in worship gatherings by executive order."

Meanwhile, Lee Norman, the secretary of the Kansas Department of Health and Environment, urged residents to disregard the lawmakers after they voted to revoke Kelly’s order. Norman — who has been likened to the Kansas equivalent of Anthony S. Fauci, the nation’s top infectious-diseases expert — said he was “SO angry!” with the lawmakers.

“Whatever Kansas legislators do doesn’t reverse what The Public needs to do,” he wrote on Twitter. “Stay home so we can beat this scourge. Despite what the 'leaders’ of the Legislature say. We are so close, and they are doing politics. … Shame!"

The Legislative Coordinating Council met this week in lieu of the full legislature, which has not been in session since mid-March because of the pandemic. At the heart of the legal case is whether the legislature can delegate its powers to revoke a governor’s executive order to just seven people on the council. Kelly argues it’s impossible, saying the legislature would need to pass a bill to change the law.

“What the LCC did yesterday in concert with the Kansas attorney general weakened and confused our emergency response efforts, putting every Kansan at risk,” she said in announcing the lawsuit Thursday.

Kansas House Speaker Ron Ryckman (R), the chair of the council, told The Washington Post on Thursday night that no one on the legislative council was encouraging residents to attend church on Easter Sunday, and that he and fellow Republicans want everyone to stay home.

Kelly’s order, he argued, is “good public policy — it’s just not constitutional.”

“We’re not willing to have someone’s religious beliefs threatened,” he said. “I don’t think they should be attending group services during this pandemic, but I’m also not willing to have them go to jail for doing so.”

Ryckman said he and his Republican colleagues on the council would support Kelly’s order if they had assurances that no one would face criminal penalties for violating it. But he said they haven’t been able to reach a compromise with the governor.

Although many churches nationwide have embraced live-streaming or drive-in services, some holdouts have wrangled with law enforcement. On Palm Sunday, Georgia state troopers interrupted a church service attended by more than 30 parishioners, issuing citations for reckless conduct to several of them.

But the pastor said that won’t stop them from holding services on Easter.

“If they have to write us a citation every Sunday and Wednesday night, we’re willing to take it,” Pastor Eli Porter Sr. said in a video on Facebook, 11 Alive News reported. “We’re taking all citations.”

At least two pastors have been criminally charged for continuing to hold large services in defiance of state or local orders, including Rodney Howard-Browne in Florida and Tony Spell in Louisiana. Spell has continued to defy calls to stop church services even after his arrest.

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As The Washington Post has reported, public health authorities in other states have also traced clusters of coronavirus cases back to church services. The largest known so far is in Sacramento County, where members of the Bethany Slavic Missionary Church have tested positive for the virus, accounting for 18 percent of the county’s cases.

Still, that hasn’t been enough to deter some significantly smaller churches from holding services.

“If we stop all churches for this, what will be the next crisis that shuts the churches?” Pastor Dan Ostring of the Rivers of Living Water Church in Sacramento told The Post this month, adding that he would be more cautious if his church were larger. “We don’t want anyone here to get sick. But we also do not want to violate our right to the free practice of religion.”

In Kelly’s lawsuit, the Kansas Supreme Court is expected to make an expedited ruling before Easter Sunday.

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