Did the Kansas Supreme Court meet over Zoom to “discuss church gatherings”? No. No, it did not.

a post by Joshua about law on Apr 11, 2020

This morning, the Kansas Supreme Court heard oral argument via videoconference in Kelly v. Legislative Coordinating Council. In Kelly, Kansas Governor Laura Kelly is challenging the Legislative Coordinating Council’s (LCC) attempt to overturn her recent order limiting all gatherings in the state, including most religious gatherings, to no more than 10 people.

The Twitter News headline for the story claimed that the hearing was held to “discuss church gatherings,” and many people took that claim at face value. But it’s wrong.

Background: The Kansas government's response to COVID-19

On March 12, 2020, Governor Kelly issued a statewide emergency declaration in response to the COVID-19 pandemic. In the following weeks, she issued a series of executive orders restricting public gatherings, closing school buildings for the rest of the school year, and otherwise attempting to manage the emergency.

Under the Kansas Emergency Management Act, emergency declarations can only last for fifteen days unless extended by the Legislature. On March 19, the Legislature did just that through House Concurrent Resolution 5025. That C.R. ratified the emergency declaration and extended it until May 1, 2020.

The C.R. also purported to empower the LCC to authorize further extensions on the Legislature’s behalf and “review and revoke all orders and proclamations issued by the governor” using her emergency powers.

All this came to a head earlier this week. On Tuesday, April 7, Governor Kelly issued Executive Order 20-18, which prohibited mass gatherings of more than 10 people, including most religious gatherings. On April 8, the LCC voted to revoke E.O. 20-18. Then, on April 9—two days ago—Governor Kelly sued the LCC, Kansas House of Representatives, and Kansas Senate, challenging the LCC’s revocation.

What Kelly is—and isn’t—about

That brings us to today. You can read the parties’ arguments in Governor Kelly’s Petition Quo Warranto and Memorandum in Support; the LCC, House, and Senate’s Joint Response; and Kelly’s Reply. You can also watch the entire hearing on YouTube.

But you’ll be hard-pressed to find much discussion of church gatherings going on.

Why? Because the real questions in this case have to do with the allocation of power in emergencies between the governor and the Legislature. Ultimately, the outcome will turn on one of the following legal questions, not the policy question of whether churches should have in-person services:

Can the Kansas Legislature delegate its oversight powers under the Kansas Emergency Management Act to the LCC, as it purported to do under C.R. 5025?
If it can, does C.R. 5025 currently authorize the LCC to exercise those powers? Or is there some as-yet unmet condition that must be satisfied first?
If it can’t, must C.R. 5025 be invalidated in its entirety, including the ratification and extension of Governor Kelly’s emergency declaration?
Separate from C.R. 5025, does the LCC have the power to revoke Governor Kelly’s executive order on behalf of the full Legislature?

If your knowledge of this case comes from Twitter’s headline or the typical tweet about it, you’ll completely misunderstand the Kansas Supreme Court’s role and the nature of the decision it has been asked to make. So, no, it did not meet via Zoom to discuss church gatherings.

Update: The Court's opinion

As I was drafting this post, the Kansas Supreme Court published its opinion in Kelly. It held that C.R. 5025 does not authorize the LCC to revoke Governor Kelly’s executive order, because it first requires action by the State Finance Council. You can read the opinion in Kelly v. LCC.

Look back at the list of legal questions I said the Supreme Court might be answering in Kelly. You'll notice that there's no mention of religious liberty. In fact, the LCC attempted to inject that issue into the case with its Response, but everyone involved eventually recognized that this is not the right case to address that question. That means that it's still an open question, and someone else can still challenge Kelly's order on the grounds that it violates his or her religious liberty. As the Court explained early in its opinion:

We . . . do not decide . . . whether Executive Order 20-18 was a legally valid or constitutional exercise of the Governor's authority, despite its limitation on religious gatherings.