Temporary restraining order granted against Gov. Kelly's executive order

Gov. Laura Kelly
Posted at 8:21 PM, Apr 18, 2020
and last updated 2020-04-19 06:55:01-04

KANSAS CITY, Mo. — A temporary restraining order has been granted in relation to Kansas Gov. Laura Kelly’s executive order that banned mass gatherings, including religious services.

The order was issued Saturday night.


Kelly’s executive order was intended to slow the spread of the novel coronavirus throughout the state. Kansas currently has more than 1,800 COVID-19 cases and has reported 86 deaths.

Kelly has issued a "series of executive orders imposing restrictions on numerous public and private activities" due to COVID-19, according to court documents.

On March 17, "mass gatherings" were restricted to 50 or fewer people. Ten days later, Kelly issued a statewide stay-at-home order. Then on April 7, Kelly issued another executive order that, according to the temporary restraining order, "were needed to slow the spread of COVID-19."

RELATED: Kansas churches sue Gov. Kelly over religious gatherings executive order

"In the provision listing venues to which the prohibition on 'mass gatherings' applies, the order included for the first time 'churches or other religious facilities' among the previously listed auditoriums, theaters, stadiums and other venues. The order then adopted the following specific restriction on religious activities:

With regard to churches or other religious services or activities, this order prohibits gatherings of more than 10 congregants or parishioner in the same building or confined or enclosed space. However, the number of individuals – such as preachers, lay readers, choir or musical performer, or liturgists – conducting or performing a religious service may exceed ten as long as those individuals follow appropriate safety protocols, including maintaining a 6 -foot distance between individuals and following other directive regarding social distancing, hygiene, and other efforts to slow the spread of COVID-19. "

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The court documents also state that the plaintiffs, First Baptist Church and Calvary Baptist Church, made a "substantial showing that development of the current restriction on religious activities shows religious activities were specifically targeted for more onerous restrictions than comparable secular activities."

"The Governor previously designated the attendance of religious services as an “essential function” that was exempt from the general prohibition on mass gatherings," the document stated.

First Baptist Church in Dodge City and Calvary Baptist Church in Junction City both held in-person services on Easter Sunday.

The documents go on to state that Kelly, the defendant, "has not argued that mass gatherings at churches pose unique health risks that do not arise in mass gatherings at airports, offices, and production facilities."

"Yet the exemption for religious activities has been eliminated while it remains for a multitude of activities that appear comparable in terms of health risks," the document stated.

In a statement released Saturday night, the Alliance Defending Freedom said that singling out churches "for special punishment" is "illogical and unconstitutional."

“We’re pleased that the court halted the governor from subjecting our clients to that type of targeting and agreed that the churches are likely to prevail on their claim that doing so violates the First Amendment," the statement read. "The order specifies that our clients are to abide by their own proposed, rigorous social distancing practices for the time being while our case continues in court, which these churches are obviously happy to do, since they proposed those rules themselves for everyone’s health and safety. In light of the court’s order, we hope the governor will act quickly to remedy the unconstitutional provision of her mass gathering ban and avoid the need for continued litigation.”

When reached for comment, both First Baptist Church and Calvary Baptist Church referred comment to the Alliance Defending Freedom.

Governor Kelly released the following statement:

“We are in the middle of an unprecedented pandemic. We all want to resume our normal lives as soon as possible, but for now the data and science tell us there’s still a serious threat from COVID-19 – and when we gather in large groups, the virus spreads.

My executive order is about saving Kansans’ lives and slowing the spread of the virus to keep our neighbors, our families and our loved ones safe, During public health emergencies, we must take proactive measures to save lives.

There have been at least eight other legal challenges like this one, and so far none of them have ruled against a mass gathering restriction like ours. Courts across the country have recognized that during this pandemic emergency the law allows governments to prioritize proper public health and safety.

This is not about religion. This is about a public health crisis. This ruling was just a preliminary step. There is still a long way to go in this case, and we will continue to be proactive and err on the side of caution where Kansans’ health and safety is at stake."

A hearing for a preliminary injunction is scheduled for April 23.

Johnson County, KS
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