There’s an old saying: Be careful what you wish for, you may just get it. I’ve had a lot of people ask me lately about law suits against those who have been trashing our rights in the name of keeping us safe from the dreaded COVID-19 virus. While many of you may have cheered the recent decision in First Baptist Church vs. Governor Kelly, it may be an example of jumping out of the frying pan and into the fire.
Background
First Baptist Church of Dodge City, Calvary Baptist Church of Johnson City, and their pastors, Stephen Ormord and Aaron Harris respectively, filed for a temporary restraining order (TRO) against Kansas Governor Laura Kelly to prevent the enforcement of her executive order (EO) 20-18, placing restrictions on religious activities. The case was filed in the U.S. District Court for the District of Kansas, as the plaintiffs were suing for relief under 42 U.S.C. § 1983 (Civil action for deprivation of rights) as well as under state law. The 42 U.S.C. § 1983 complaint is based on the plaintiffs’ belief that the Executive Order violated their First Amendment right to freely exercise their religion.
Similar to the NYSRPA v. New York City case, Governor Kelly requested the complaint be dismissed as moot because her EO 20-18 had been superseded by EO 20-25, which alters some of the restrictions, but not those on churches and religious facilities. Since Governor Kelly has issued a series of EOs, with varying restrictions on religious activities, Judge John Broomes denied the state’s request to dismiss the complaint and proceeded.
Executive Frying Pan
Governor Kelly had issued a series of EOs related to the COVID-19 scare. On March 17th, she signed EO 20-04 which prohibited mass gatherings of more than 50 people, but excluded “Religious gatherings, as long as attendees can engage in appropriate social distancing.” On March 24th, EO 20-14 limited the size of gathering to 10 people. On March 27th, EO 20-16 expanded the list of essential functions to include “Perform or attend religious or faith-based services or activities.”
On April 7th, five days before Easter, the Governor issued EO 20-18, which, among other things, added churches and other religious facilities to a list of prohibited venues for mass gatherings. While EO 20-18 listed several exemptions for things like airports, childcare, hotels, food pantries, shopping malls, restaurants, bars, grocery stores, “and other retail establishments where large numbers of people are present but are generally not within arm’s length of one another for more than 10 minutes”, it put specific restrictions on churches and religious services.
With regard to churches or other religious services or activities, this order prohibits gatherings of more than ten 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 six-foot distance between individuals and following other directive regarding social distancing, hygiene, and other efforts to slow the spread of COVID-19.
First Baptist Church v. Kelly TRO
Judicial Opinion
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show the deprivation of a federal right by a person acting under color of state law. The First Amendment provides in part that “Congress shall make no law … prohibiting the free exercise” of religion. U.S. Const. amend. I. The First Amendment applies to the States by virtue of the Fourteenth Amendment. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000).
First Baptist Church v. Kelly TRO
For those of you who have been following The Constitution Study for a while, this will sound repetitive… The First Amendment cannot be applied to the states. Why? Because, as Judge Broome quoted, the First Amendment applies to Congress, and only Congress. But did the Fourteenth Amendment “incorporate” the First Amendment to the states?
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
Amendment XIV
You may be asking yourself: Isn’t the right to free exercise of religion a privilege or immunity of the citizens of the United States? The answer is yes and no. While the First Amendment prohibits Congress from prohibiting the free exercise of religion, it does not prohibit it to the states. On the other hand, the Fourteenth Amendment was created after the Civil War to force reluctant states to protect the rights of all American citizens; it did not rewrite or amend the First Amendment to apply it to the states. And neither does a court opinion, in this case Santa Fe Indep. Sch. Dist. v. Doe, did not rewrite the Constitution. These Executive Orders, however, do violate Section 7 of the Bill of Rights of the Kansas Constitution:
§ 7. Religious liberty property qualification for public office. The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any elections, nor shall any person be incompetent to testify on account of religious belief.
Kansas Constitution, Bill of Rights, Section 7
During the hearing, the state relied on a case called Abbott, which upheld the Executive Order of Texas Governor Abbott to require that non-essential surgeries and procedures be postponed during the COVID-19 pandemic. The argument in Abbott focused on a case called Jacobson v. Commonwealth of Massachusetts.
But it is equally true that, in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.
Jacobson v. Commonwealth of Massachusetts.
There’s just one problem with this case referring, indirectly, to Jacobson. In the Jacobson case, there was probable cause that Mr. Jacobson, an American citizen returning to an American port, may have contracted yellow fever. Jacobson did not describe a blanket power where government can violate people’s rights for public health, only that they could do so when there is probable cause, supported by oath or affirmation, that the person is a danger to the public at large.
The court also looked at a case called Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, where the City of Hialeah attempted to pass an ordinance to prohibit ritual animal sacrifices, in this case targeted specifically at the church of Lukumi. This case is often used as an example of First Amendment jurisprudence. In this case the court found that the ordinance was not religiously neutral, and therefore ran afoul of the First Amendment’s Free Exercise Clause.
Ultimately, Judge Broome found that both EO 20-18 and EO 20-25 specifically target “churches or other religious facilities”, and therefore are not neutral. At this point, I’m sure many people are cheering the “victory”, but that is not the end of the story.
Judicial Fire
IT IS THEREFORE ORDERED that The Hon. Laura Kelly, in her capacity as Governor of the State of Kansas, is hereby enjoined and ordered to refrain from enforcing the prohibition in Executive Order No. 20-18 and Executive Order 20-25 prohibiting religious gatherings involving more than ten attendees, conducted by Plaintiffs First Baptist Church of Dodge City, Kansas, and Calvary Baptist Church of Junction City, Kansas, so long as those gatherings comply with the social distancing and public health protocols Plaintiffs have indicated in their complaint they are prepared to apply.
First Baptist Church v. Kelly TRO
This is where that slippery slope really drops off. Now, if these two churches wish to have services, they must abide by the rules established by the court. Did these churches agree to these protocols beforehand? Yes, it was part of their complaint that they would adhere to these rules, but now they no longer have a choice. What if the situation changes? What if evidence proves COVID-19 is not as dangerous as was once thought? What if the Governor writes a new Executive Order? What if a situation arises that would require a modification to one of these protocols? The churches have voluntarily submitted to a court determining the conditions under which they can hold services. Let’s look at the list of things these two churches must do:
The protocols Plaintiff First Baptist Church of [Dodge] City will adhere to include:
First Baptist Church v. Kelly TRO
● Prior to and following the in-person service, the facility will be deep-cleaned;
● Invitations will be directed to regular church attendees for this in-person service;
● Individuals will be advised to continue to engage in “stay at home” protocols as
directed by EO 20-16 in order to attend the service;
● No church members are known to have had any contact with known COVID-19
confirmed cases;
● Attendees will be advised to perform temperature checks at home on all attendees prior to attending the service. Individuals that are ill or have fevers will not attend;
● High-risk individuals will be advised not to attend the in-person service;
● Attendees will be advised to bring their own PPE, including masks and gloves;
● Attendees will be advised not to engage in hand shaking or other physical contact;
● Hand sanitizer will be available for use throughout the facility;
● The in-person service will be limited to 50 individuals in a space that has a capacity for 300 individuals (a cross-shaped auditorium 50 feet by 74 feet at the center; 2,950 square feet total, allowing almost 57 square feet available to each attendee at maximum social distancing);
● Co-habitating family units may sit closer together but otherwise the maximum
social distancing possible will be used, however, at a minimum, the CDC recommended protocol will be observed with a minimum distance of at least 6 feet;
● A single point of entry and single point of exit on opposite sides of the building will be used, establishing a one-way traffic pattern to ensure social distancing;
● Ventilation will be increased as much as possible, opening windows and doors, as weather permits;
● These procedures will be communicated to church members in advance of the service;
● Church bulletin and offering plates will not be used during the service;
● Attendees will be advised to wash their clothes following the service;
● If Church leadership becomes aware of a clear, immediate, and immanent threat to the safety of the attendees or cannot follow the protocols listed above, the gathering will be immediately disbanded.
The protocols Plaintiff Calvary Baptist Church of Junction City will adhere to include:
● Splitting out pews and marking designated sitting areas to keep non-cohabitating congregants at least six feet apart before, during, and after the worship service;
● Marking multiple entrances to encourage socially distanced foot traffic;
● Propping doors open to prevent the need for congregants to touch doors while
entering and exiting the church or sanctuary;
● Suspending passing offering plates and bulletins;
● Actively discouraging handshaking or other social touching;
● Offering hand sanitizer throughout the building;
● Providing face masks to offer to any interested persons.
So now, if the people in these churches want to “freely” exercise their religion, they have to jump through the hoops established by the federal government, or at least until the court decides on the merits of their case.
Conclusion
Are the requirements for the church a reasonable compromise with the State of Kansas? From a purely practical standpoint, they may be. Most of these requirements are reasonable precautions to take during a virus outbreak, but should they be enforced by government edict? This compromise does mean these churches can remain open, and at least their regular attendees will be allowed to attend. Nonetheless, the idea that any government official can determine when and how you can exercise your unalienable right is repugnant to me, and the idea that anyone in government can regulate how you exercise your freedom of religion is repugnant to the constitutions of the United States and the several states. Would the judge have issued the restraining order if the churches had not submitted to these proposed restrictions? I don’t know, but the fact that I have to ask the question shows just how much we are submitting our rights to the powers of government. I’m reminded of the words of Patrick Henry:
Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?
Patrick Henry
Have these church purchased their peace at the price of the chains of the federal government?
