The American Civil Liberties Union of Kansas has long fought for religious liberty, and advocates vigilantly to protect people of all faiths from government interference with their fundamental right to worship. The United States and Kansas Constitutions undoubtedly guard freedom of assembly to practice one’s faith. No civil liberty is absolute, however, and circumstances arise where the government can justify temporary, tailored restrictions on the right to assemble and worship. The current global pandemic presents such a circumstance.
The COVID-19 crisis has forced the State of Kansas to balance its interest in saving lives against its obligation to respect constitutionally protected individual liberties. There is no vaccine for the novel coronavirus. Accordingly, public health experts have reached a consensus that the primary way to reduce this easily transmittable, deadly disease is through physical distancing.
Under Kansas’s Bill of Rights, a government restriction on the exercise of religion is justified if it advances a compelling interest and is the least restrictive measure the government could have adopted to achieve their stated purpose. Courts across the country have consistently found that the spread of communicable disease constitutes a compelling government interest, and have, therefore, upheld administrative efforts to protect communities against such diseases. Similarly, temporary restrictions on congregational worship have consistently been upheld as the least restrictive means to protect community health and safety. In other words, temporary limits on communal religious services for a stated safety measure—including protection from infectious disease—pass muster with the courts.
It is our opinion that the public assembly restrictions in recently issued Executive Orders advance a compelling interest of protecting community health and constitute the least restrictive means for accomplishing this objective. Some have proposed that rather than the limitations in the Executive Orders, we might be able to have gatherings of more than 10 people, so long as individuals stood at least six feet apart. If applying the six feet distancing requirement to all mass gatherings were an effective public health solution, however, the state would have implemented that as the precaution for non-religious gatherings. Further, and as a factual matter, religious services necessarily require continued presence and interaction uncommon to other types of exempt mass gatherings. Attending a worship service is not like shopping in a grocery store, for example. While both might involve being inside of a building with 10 or more people at once, attending a worship service involves staying in proximity with other individuals for an extended period of time. Most worship services have interactive components, often repeatedly, that are not amenable to physical distancing—hence the reason they are typically in-person communal experiences in times of non-crisis.
Remember that the test here is whether the restrictions are the least restrictive means of achieving the state’s goal—here, flattening the curve and keeping Kansans safe and healthy. The temporary restrictions on congregative worship embodied in the Executive Orders are not greater than what is necessary to achieve that narrow, critical public health goal. For that reason, the Orders do not violate the religious freedom protections under Kansas law.
COVID-19 has already affected over 1,700 Kansans, a number that climbs daily. This crisis requires Kansas to grapple with the appropriate balance between public health and safety and fundamental constitutional precepts. While freedom of religious assembly is one of the most sacred rights protected by our state and federal laws—one we defend zealously—the temporary limitations created by these Executive Orders are justifiable in light of the current health crisis. There may be a time when the restrictions of the Orders are no longer appropriate, and lesser means could be employed to keep people safe effectively. If that time comes, the ACLU of Kansas will be at the forefront of the challenge.