Legislative Coordinating Council overturns governor’s order limiting church numbers, on deadliest day so far for COVID-19 in Kansas

Kansas COVID-19 cases top 1,000; 11 more deaths

The Kansas Legislative Coordinating Council on Wednesday overturned Gov. Laura Kelly’s order limiting churches to no more than 10 persons, and Gov. Kelly responded that her legal team is looking into ways to counter the action.

Kansas positive COVID-19 cases topped 1,000 on Wednesday, according to figures from the Kansas Department of Health and Environment, with 38 deaths statewide.

It was the deadliest day for COVID-19 so far in Kansas, with 11 more deaths statewide in one day.

The number of positive cases, 1,046, rose more than 100 from Tuesday morning’s 900 cases.

In Wyandotte County, there were 229 positive COVID-19 cases and 13 deaths at 4:40 p.m. Wednesday, according to the UG COVID-19 webpage. There were three more COVID-19 deaths since Tuesday in the county.

The LCC is a small group of Kansas legislative leaders that meets when the Legislature is not meeting. The vote was 5-2, with Republican leaders voting to overturn the order.

Gov. Kelly said in a news conference that projections showed it could be a few more weeks before Kansas hits its peak in COVID-19 cases. The jump in the death rate today only underscored the very grave danger that the state faces.

She called a memo sent out by the Kansas attorney general earlier today a “bizzare, confusing attack” at a time of emergency.

Gov. Kelly said he endorsed the steps the administration took to keep Kansas safe, encouraged Kansans to observe the restrictions on mass gathering, but he discouraged local law enforcement officers from enforcing the executive order.

“And Republican leaders followed suit with an irresponsible decision that will put every Kansan’s life at risk,” she said.

Gov. Kelly said the attorney general’s memo has no authority, but it did have the ability to undermine and inject chaos, and distract efforts away from mitigating the threat of COVID-19.

She said the effort to fight COVID-19 formerly had been bipartisan in Kansas, and that she was nonpolitical and trying to serve th estate.

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

“Kansans are dying every day at the hand of this pandemic, and there is no room or excuse for these petty political distractions,” she said. “Coronavirus knows no boundaries, no faith, no political party, it is a deadly threat to us all, no matter where we live or our political affiliation.”

Dr. Lee Norman, Kansas secretary of health, said in the news conference today that they are approaching the peak in the growth of deaths in Kansas. He said he is very concerned about people gathering in groups of any kind.

Twelve group gatherings so far in six counties have resulted in 165 positive cases and in 12 deaths in Kansas, Dr. Norman said. Three of the 12 clusters were related to church gatherings.

“There were two deaths in Montgomery County last week,” he said. “The wife attended a church conference in Wyandotte County.”

A large number of cases came from that church conference, he said.

She went home, her husband became infected, and both of them died, Dr. Norman said. The KDHE was not able to trace all of their contacts because they were both dead, he added.

While the health care system is not overburdened yet, if people return to meeting together, the health care system could become overburdened, resulting in more deaths.

“We cannot let our guard down, we are about to enter the peak of this pandemic,” Dr. Norman said.

Besides the church clusters, the state is fighting an outbreak at Lansing Correctional Facility in Leavenworth County, where 11 staff members and 10 inmates have tested positive for COVID-19, he said.

Wyandotte County also has a large cluster of cases at the Riverbend Post-Acute Rehabilitation Center, where there were six deaths and 56 positive cases, according to the Unified Government Health Department.

Gov. Kelly said her legal staff is trying to find out if the action taken by the LCC today overturned not just Tuesday’s order, but also a previous order putting limits on mass gatherings.

Gov. Kelly said she has been in communication with faith leaders in Kansas before making the order Tuesday, and they were in support of it. Many churches already have stopped having in-person meetings and are conducting services on the internet or other electronic means.

She also said she knew of very few cases where local law enforcement had to go in and break up a large group in Kansas.

Dr. Norman said there are two factors influencing when people can get back to work and their normal lives. One is how soon a state closed schools, and Kansas closed schools early, he said. The second is how much people socially distance and limit their travels, he said. That is the second biggest factor influencing death rates and the number of people in intensive care units, he said.

He said the action by the LCC today flies in the face of everything that has been done so far and he hopes it doesn’t have a negative impact on commerce, as well.

Challenge to governor’s order limiting religious services to 10 and under

The Kansas Legislative Coordinating Council voted 5-2 on Wednesday to overturn the governor’s order limiting churches to 10 and under.

A letter was sent to the governor on Wednesday challenging the limit on religious services to 10 and under.

The Kansas Justice Institute, in a letter to Gov. Kelly today, pointed out that shopping malls and libraries were not specifically defined as essential under the order, yet were exempted from the 10-person limit. Churches were considered as essential but a specific limit was placed on them, according to the letter. A less restrictive option should be considered for churches, such as requiring masks and gloves, the letter stated.

In Wyandotte County, however, the picture portrayed in the letter is not accurate – the libraries here already are closed, and the biggest shopping mall, The Legends, also is closed because of the COVID-19 pandemic. But some stores elsewhere were left open for people to obtain groceries and supplies.

AG to law enforcement: Thou shalt not arrest worshippers

Walking a thin line between two points of view, Kansas Attorney Gen. Derek Schmidt today stated that Kansans should comply with the governor’s order limiting religious gatherings during the pandemic, but they cannot be arrested, prosecuted or imprisoned for worshipping.

While it was sound public health advice, the order likely violates state constitutional and statutory protections for religious freedom and must not be enforced by arrest, prosecution, fines or imprisonment, the attorney general stated.

“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 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.”

Today’s memorandum is 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 today’s 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, Schmidt stated. 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, according to Schmidt.

The attorney general’s memo is not binding on law enforcement and prosecutors; while it carries a heavier weight than the average person’s opinion, it is not as strong as a court’s opinion.

Some religious leaders backing the order limiting mass gatherings

Gov. Kelly, in a recent news release, quoted from several Kansas religious leaders who are in support of the order:

The Rev. C.L. Bachus of Kansas City, Kansas, Mt. Zion Baptist Church: “I am calling the Christian community to follow Governor Kelly’s executive order as it relates to social distancing and limited gatherings. We’ve had some difficult experiences in the religious community that makes this action necessary. I encourage you all to obey the mandate. It’s time we use good common sense as well as exercise our faith during this difficult time. We are all in this together.”

Catholic Monsigner Stuart Swetland of Donnelly College in Kansas City, Kansas: “Everyone recognizes the religious liberty and first amendment rights, but with rights also comes the duty to serve the common good. Right now, it is necessary for religious institutions to serve the common good and our common health by following this reasonable request from the Governor.”

Dr. T. La Mont Holder, president of Missionary Baptist State Convention of Kansas: “In light of the COVID-19 Pandemic, it is imperative that pastors and churches comply fully with the state and local gathering restrictions of (10 or less) that have been implemented by our Governor, Laura Kelly, and the healthcare experts who are working with her daily to provide the best policies and practices for reducing the spread here in Kansas.

“This is no time for spiritual extremism. It is the responsibility of each pastor and church to act responsibly and lead by example. To continue to place the health and welfare of our church members, and the community at large in danger is biblically and morally irresponsible and reckless.

“In these difficult times we must endeavor to be a part of the solution and not a part of the problem. To defy the meeting restrictions is negligent, selfish and reprehensible. As a member of the clergy, I understand that as a community of faith the church is our safe place. However we must not turn our safe places into sanctuaries of predation.

“I implore every pastor, church leader and parishioner across the state of Kansas to rethink your actions during this vulnerable time in our nation and particularly in Kansas. We are in a state of emergency and our actions in these critical moments will determine how soon we get beyond this healthcare emergency.”

The Rev. Shirley D. Heermance, pastor at Historic St. Mark’s A.M.E Church, Topeka: “Today we were informed of the Honorable Governor Laura Kelly’s Executive Order to remove the exemption that allowed for members of the Faith Community to gather for worship, per the established distancing order. The Historic St. Mark’s African Methodist Episcopal Church (Topeka, Kansas) stand in support of this difficult decision. Sharing with others of the Faith Community, who believe that through this crisis, we are safer at home. We are grateful to have opportunity to continue in Worship, study, and official meetings through the social media and teleconferencing. Our hearts are filled with sorrow over the 11,000-plus lives lost to the COVID-19 virus. We are thankful for all those who serve through this crisis on the front line and will remain prayerful until at last our God has healed our State, our Nation, and our World.”

To view the governor’s news conference, visit https://www.facebook.com/GovLauraKelly/videos/1037628039966755/

To listen to the Legislative Coordinating Council discussion, visit http://sg001-harmony.sliq.net/00287/Harmony/en/PowerBrowser/PowerBrowserV2/20200408/-1/9503.

The Kansas COVID-19 resource page is at https://govstatus.egov.com/coronavirus.

The UG COVID-19 website is at https://alpha.wycokck.org/Coronavirus-COVID-19-Information.

The CDC COVID-19 page is at https://www.cdc.gov/coronavirus/2019-nCoV/index.html.