"Derek Schmidt" by United States Department of Justice / Public Domain

Kansas Attorney General Derek Schmidt: Governor’s order limiting religious gatherings likely violates state constitution

Apr 9, 2020

By KSN News

Kansas Attorney General Derek Schmidt said Governor Laura Kelly’s new executive order restricting in-person religious gatherings as a COVID-19 countermeasure is sound public-health advice that Kansans should follow, but the order likely violates state constitutional and statutory protections for religious freedom. Schmidt said in a news release that worshipping must not be enforced by arrest, prosecution, fines or imprisonment.

“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.”

Wednesday’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 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.

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