Re the Kansas Supreme Court case (Kelly v. LCC):

For obvious reasons, ppl are looking at this as "Will the KSCt hypocritically let ppl pack the churches even while they won't meet in person themselves?"

In fact, the case mainly presents much more technical questions.

1/14

The Governor filed a quo warranto action, which is a way of challenging whether an act by a government entity is warranted (i.e. authorized) by law.

The Governor challenges the Kansas legislature's issuance of a concurrent resolution delegating its authority...

2/14

to strike the Gov's emergency order, which imposes criminal penalties for violations, including at least some church gatherings, to a 7-person body of legislators called the Legislative Coordinating Council (LCC).

The Gov argues this delegation was unlawful/ineffective.
3/14

Kansas statutes provide 3 ways in which the legislature can check the Gov's emergency order, none of which explicitly mentions delegating authority to the LCC. Simplified quite a bit, the Gov argues that the attempted delegation is unlawful.

4/14

In response, the LCC argues (again, simplified) that the legislature can delegate its authority as it sees fit, and that it's none of the Gov's business how it does so.

The LCC also argues the emergency order violates KS's Preservation of Religious Freedom Act.

5/14

Normally, an order "of general applicability" (meaning it applies across the board, is not targeted at (a) religion) would not be susceptible to an objection on grounds of religious freedom, but the PRFA changes that.

6/14

The PRFA says even if the act/order is "of general applicability," it still cannot burden the exercise of religion. LCC et al. argue that the emergency order burdens exercise of religion because physically going to church is "motivated by a sincerely-held" religious belief.

7/14

That language comes from the SCOTUS case law on religious discrimination. If the case is decided based on this argument, what constitutes a "burden" will prob be informed by SCOTUS decisions.

But it's more likely the KS SCt will rule based on the technical issues instead.

8/14

Why? Because "hard cases make for bad law." If the ct wades into the religious freedom stuff in the middle of a pandemic, it may set a precedent it doesn't want to carry over to "normal" times (whenever those may come).

Cts usually prefer narrow rulings changing little.

9/14

I'm not licensed in KS and am not familiar with KS statutes or case law, other than what is written in the filings of this case, so I can't say with much certainty who has the better of the technical arguments.

10/14

It looks to me like the Gov may have the better arguments, because 1) it appears the statutes don't expressly allow for delegation of this particular authority to the LCC, and 2) if the religious freedom stuff is relevant, so is public safety, and...

11/14

public safety is likely a "compelling" govt interest sufficient to justify any burden on religion, especially since that "burden" is only temporary and affects only where, not whether, religion is practiced.

12/14

In short: my guess is that the Gov will win out, but that's a guess. And either way I expect the ruling to be based on the technical issue of legislative delegation.

So charges of hypocrisy of the KS SCt are likely to be unwarranted (ha).

13/14

But, to repeat my caveat, I'm not a KS lawyer, so: grain of salt.

Gov's arguments (PDF): https://www.kscourts.org/KSCourts/media/KsCourts/High%20Interest%20Cases/Kelly%20v%20LCC/122765MemorandumSupportPetitionQuoWarranto.pdf?ext=.pdf

LCC's (PDF): https://www.kscourts.org/KSCourts/media/KsCourts/High%20Interest%20Cases/Kelly%20v%20LCC/122765RespdentsJointResponse.pdf?ext=.pdf

Oral argument (YT video):

14/14