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

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TOPEKA, Kan. (KSNW) – 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.

“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.”

Read a copy of the attorney general’s memorandum is available here.

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