This will probably be my last substantive post on RBC. My posts generally focused on bringing attention to source documents, mostly court decisions, that the media reported on, but failed to link to. I believe that the failure to allow a wide audience to access this sort of material often leads to a misunderstanding of the meaning and import of official actions. I’m willing to bet that the decision of the U.S.D.C. for Kansas (per Broomes, J.) in First Baptist Church v. Kelly will fall squarely within that category.
The plaintiffs in this case challenged portions of the Kansas governor’s executive order limiting church services as follows:
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.
Slip op., at 3
I won’t go into the court’s reasoning in great detail. However, in ruling on temporary restraining orders and preliminary injunctions, courts must weigh whether the grant of a TRO or preliminary injunction is in the public interest. I think that the court here failed to properly analyse that requirement. Here is its entire analysis on that point, citations omitted:
Lastly, to obtain a TRO, Plaintiffs must show that the granting of a TRO is in the public interest. The public interest is furthered by preventing the violation of a party’s constitutional rights. Additionally, for the reasons previously mentioned, the record shows that allowing Plaintiffs to gather for worship with the safety protocols similar to those applicable to other essential function mass gatherings is consistent with the interest in protecting public health.
Slip op. at 17.
The court did not weigh the countervailing public interest considerations of limiting the spread of Covid-19 to the members of the public who might have contact with those attending church services.
The reason that the opinion will likely be misread is that it will be interpreted by most of the public media as granting a broad warrant to conduct religious services without any limitations. However, when one reviews the actual scope of the order, one can see that this is not the case.
This action was brought by two churches and their pastors. The order applies only to those parties. More importantly, the order imposes detailed protective practices that must be followed in the services. However, these protective practices differ as between the two churches involved. As I read the order, the reason for these differences is that the two churches, in their pleadings, offered different proposed protective measures. The court simply accepted the proposals made by each church and didn’t delve into the merits of the proposed protective practices.
As between the two churches, the protective measures differ significantly. For instance, the Dodge City church must bar those church members who are known to have any contact with Covid-19 confirmed cases. Individuals who are ill or have fevers will not be able attend services. And, if the church leadership becomes aware of a clear, immediate, and imminent threat to the safety of the attendees or cannot follow the protocols set forth in the order as to that church, the gathering will be immediately disbanded. There are no similar limitations on the Junction City church. See slip op. at 17-18.
The court did not throw out the executive order in its entirety. Rather, it said that if houses of worship agree to follow detailed protective practices, they can continue to meet. Presumably, unless the governor issues an amended order setting forth the protective practices that must be followed and those practices are not successfully challenged in court, any house of worship that wants to be excepted from the current executive order must bring a separate action, offering its proposed protective actions, and have them reviewed by the court. I don’t know how many houses of worship in Kansas might want to do this, but it seems to me that the court has imposed upon itself an administrative burden that it cannot adequately discharge.
I will try to offer my farewell to the RBC blog in a separate post later this week. Suffice it to say, I will miss it.