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By: Marc Finkel
Faced with the uncertainty of navigating through a global pandemic, governors throughout the United States have issued a series of executive orders aimed at slowing the spread of the novel coronavirus. Many of these executive orders have placed restrictions on our daily lives from the closure of schools to the closure of restaurants, movie theaters, and barbershops. Since the beginning of March, as the number of positive cases of the novel coronavirus began to increase in different parts of the United States, the frequency of additionally restrictive executive orders aimed at “flattening the curve” of the novel coronavirus has increased as well. Due to the varying degrees of restrictions that have been placed on some of our freedoms, there has been a recent uptick in court challenges to several of these executive orders.
A recent illustration of this has started playing out in the State of Kansas, where Governor Laura Kelly issued Executive Orders 20-18 and 20-25 that modified prior executive orders placing certain restrictions on public activities and mass gatherings to include a prohibition against in-person religious gatherings of more than 10 people. On April 11, 2020, the Kansas Supreme Court upheld Governor Kelly’s limitations on such in-person religious gatherings on state law grounds. However, recently, United States District Court Judge for the District of Kansas, Hon. John W. Broomes, granted a temporary injunction on behalf of the First Baptist Church and Calvary Baptist Church that enjoins Executive Orders 20-18 and 20-25 from being further implemented on U.S. Constitutional grounds.
In First Baptist Church, et al. v. Governor Laura Kelly, No. 20-1102-JWB, (April 18, 2020), Judge Broomes determined that the Plaintiffs met the standard for the issuance of a temporary restraining order by finding that Executive Orders 20-18 and 20-25 were not facially neutral in the restrictions it placed upon in-person religious assemblies. The Court primarily based its decision on the fact that religious assembly was previously considered an essential public activity under the first wave of executive orders issued by Governor Kelly to combat the novel coronavirus pandemic in the State of Kansas, and that Executive Orders 20-18 and 20-25 were issued specifically to place restrictions on the right of in-person religious assembly. The Court also found that the restrictions on the right of in-person religious assembly were likely not narrowly tailored, because the safety concerns that serve the basis of Executive Orders 20-18 and 20-25 are not dissimilar to safety concerns with respect to other secular mass gathering activities deemed essential under prior executive orders issued by Governor Kelly (e.g., mass gatherings at airports). The Court noted, however, that those other secular mass gatherings are subjected to less restrictive conditions under Executive Orders 20-18 and 20-25. Furthermore, as this is a matter that concerns a limitation on a person’s First Amendment rights, even if only for a minimal period of time, the Court found that the Plaintiffs risk irreparable injury for the purpose of obtaining a temporary restraining order.
Hearing on a permanent injunction as to Executive Orders 20-18 and 20-25 is scheduled for April 23, 2020. The Court recognized the novel coronavirus presents an “unprecedented health crisis” that places on Governor Kelly an “immense and sobering responsibility” to protect the lives of Kansans. Therefore, the Court in granting the temporary restraining order, expressly stated that it would “not issue any restraint, temporary or otherwise, if the evidence showed such action would substantially interfere with that responsibility.” Accordingly, it is unclear whether the Plaintiffs will ultimately obtain a permanent injunction as to the implementation of Executive Orders 20-18 and 20-25. In fact, a reading of the Court’s decision granting the temporary restraining order suggests that a more facially neutral limitation on the right to in-person religious assembly may pass constitutional muster. This is a critical matter worth following, as the Court’s decision on whether to issue a permanent injunction will likely serve as a roadmap for deciding constitutional challenges to similar executive orders throughout the United States.
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