Is it time to re-open houses of worship for in-person religious services, despite the continued coronavirus pandemic? This question has sparked controversy and significant accompanying safety concerns against an ever-changing array of government orders and religious liberty lawsuits. How and when will in-person religious gatherings be safe again? Should houses of worship wait indefinitely to conduct in-person worship services? Or should they reengage with religious services – now, and perhaps step by step with specific safety measures?
Religious leaders seeking quick-fix answers to questions of when and how to recommence in-person worship services will be disappointed. No shortcuts exist. As described below, government guidelines are changing weekly, sometimes daily. They differ substantially between states and even within states. Religious organizations thus need to act as wise and careful stewards, continuing to care responsibly for their congregants in other active and meaningful ways and doing their best to account for all risks, but hopefully without needing to negotiate the nuances of religious free exercise jurisprudence.
This article first addresses recent legal developments involving religious organizations’ increasing efforts to engage in religious worship activities notwithstanding extended stay-home orders, highlighting Illinois and South Carolina based on our law firm’s areas of client concentration in those two states. The article then pivots to more practical aspects, including leadership responsibilities, safety measures, appropriate training, waivers, contractual considerations, and additional “best practices” resources for thinking prudently and pragmatically about next steps.
The Legal Landscape for Houses of Worship
Politics, Litigation, and Religious Freedom
On May 22, President Trump spoke of religious services as "essential," directing state and local officials to allow houses of worship to re-open. His pronouncement provides yet another civics lesson in this pandemic journey, presenting multiple significant legal questions regarding federal versus state authority and balance of power among government branches. Power to provide and legislate for general safety and welfare traditionally belongs to the States. The federal government’s power is quite limited: the Tenth Amendment grants non-enumerated powers – i.e., those not specified in the U.S. Constitution to “the States, or to the People.” Nevertheless, the President undoubtedly has political and persuasive power to indirectly affect and shape the actions of States.
Around the country, religious organizations have filed numerous lawsuits in response to state restrictions. Some have found their legal anchor in the constitutionally protected right to free exercise of religion. Lawsuits constructed on this foundation have been successful in several states (e.g., Mississippi, Kentucky, and Kansas) and unsuccessful in others (e.g., Illinois, New Mexico and California). In their complaints, these organizations assert that their right to exercise their religion should not be conditioned, qualified, or otherwise limited by state officials’ shut-down orders – especially if appropriate safety and risk mitigation measures are carefully followed. Some suits further allege that state governments are treating houses of worship less favorably than similarly situated entities and are unconstitutional on those grounds. Appeals are ongoing in several of these cases.
Other lawsuits have challenged stay-at-home orders on the ground that governors or state agencies have exceeded the powers provided them in state constitutions and statutes, and thus violating state law or usurping the role of state legislatures. These suits have also had mixed results thus far, with a victorious challenge in Wisconsin and victory at the trial court level in Illinois, but no success so far in Michigan. Religious liberty litigation is also ongoing in Minnesota, where Governor Walz recently allowed houses of worship to operate at no more than 25% capacity and with a 250-person maximum.
While litigation remains an option for religious leaders and adherents who believe their religious freedom and other rights are being violated, litigation may not be the most efficient option to resolve controversies, given the rapid changes taking place and gradual re-opening. That said, to the extent states continue to prevent religious organizations from fully opening and operating in the long term (such as until a vaccine is available), litigation may be the only option for obtaining relief. An excellent summary of pending litigation may be found in this article.
Phasing In – Legal Compliance Challenges
Based on litigation efforts thus far and related legal concerns including religious freedom rights, some religious leaders may be encouraged to proceed with re-opening measures, while others may take a "wait and see” approach. Recent legal developments may embolden local church leaders, but violating a state or local order that clearly prohibits fully re-opened church services remains a high-risk strategy.
Government officials continue to vary greatly in the extent to which they permit general re-opening and the extent that their stay-at-home orders include or exempt religious organizations. Many states, such as Illinois, now have a multi-phase plan whereby different areas within the state will relax restrictions independently of each other. Complicating matters further, some local leaders have indicated they will determine the rate and extent to which communities re-open, notwithstanding state-wide guidance. States and local communities also vary widely in their enforcement (or lack thereof) of applicable stay-at-home orders.
We will focus on two states in particular: Illinois and South Carolina, where our firm’s two offices are located.
Illinois: Limited “Free Exercise” of Religion and Percentage Occupancy for Non- Religious Activities
Governor Pritzker issued his first Disaster Proclamation on March 9, 2020, which spawned a series of Executive Orders laying out protective measures and movement restrictions that Illinois would adopt to slow the spread of COVID-19. Within such orders, religious activity was excluded from the definition of “essential activities,” despite a long laundry list of other activities deemed “essential.”
On April 29, 2020, Governor Pritzker issued Executive Order 2020-32, which provides that Illinois residents must continue to shelter in their homes, but with a narrow exception for those desiring to worship together. Under the Order’s “Free Exercise of Religion” exception, individuals may leave their residence to worship while following social distancing requirements, wearing face coverings, and gathering in groups of no more than ten people. So far, the boundaries of this exception have been selectively enforced, with some local elected officials stating publicly they will not enforce it, allowing houses of worship to meet without restriction, and others threatening to fine violators, with some tickets issued.
In early May 2020, Governor Pritzker issued an official re-opening “Restore Illinois” plan, broken down into five phases. On May 28, 2020, he announced that all four regions of the State will move to "Phase 3: Recovery" of the re-opening plan on May 29, 2020. In conjuntion with such announcement, the Illinois Department of Public Health (IDPH) issued a nine-page document entitled "COVID-19 Guidance for Places of Worship and Providers of Religious Services," available here.
The IDPH's guidance tracks with the Centers for Disease Control's recent guidance for communities of faith. Overall, the IDPH's guidance is encouraging and less draconian, most notably as follows:
- Remote services are still strongly encouraged, with additional guidance regarding drive-in services.
- Caution is urged: "For places of worship that choose to hold in-person activities, the safest course of action is to congregate outdoors and/or in small groups of less than 10 people."
- Outside worship activities are thus allowed, but with additional prescribed "best practices" such as social distancing, face coverings, and no singing.
- Indoor activities involve significant precautions such as the 10-person limit (as the most safe), rigorous cleaning, designated traffic patterns, social distancing measures, individual screening and controls.
- Capacity limits are now appropriate to consider: "Where the 10-person limit cannot be followed... [s]et a capacity limit for the place of worship that allows for extensive social distancing (six feet or more) between congregants. Consider limiting attendance to 25% of building capacity or a maximum of 100 attendees, whichever is lower."
Phase 3 guidance for other activities includes the following:
- Retailers can allow customers at 50% of their normal capacity or five customers per 1,000 feet of retail space.
- “Service counter” businesses such as dry cleaners, electronic and shoe repair shops and car washes can operate with signage displayed at the entrance notifying customers of how requirements for social distancing, facial covering, and cleaning procedures are being fulfilled.
- For restaurants, outside service will be available at tables spaced 6 feet apart, served by employees wearing masks.
- Health and fitness centers can operate at no more than 50% of occupancy or 5 people per 1000 sq. feet. Centers should evaluate common areas to allow for social distancing of 6-ft or greater by removing furniture or staggering break times.
Along with Governor Pritzker’s action to move all areas of Illinois to Phase 3, Chicago Mayor Lori Lightfoot has announced that Chicago will move to Phase 3 on June 3, 2020. No mayoral re-opening guidelines have been issued for Chicago’s religious services, however. Instead, religious activities remain lumped together with sporting events, bars, outdoor performances, and summer youth activities, for which standards will reportedly be available later.
South Carolina: Religious Activity as “Essential”; Slow and Steady Strategy
In South Carolina, Governor Henry McMaster’s emergency order includes as an essential activity “attending religious services conducted in churches, synagogues or other houses of worship," thus expressly exempting those activities from the stay-at-home order (unlike in Illinois). While Governor McMaster thus acknowledged the importance of the First Amendment and declined to intrude upon it, he encouraged houses of worship to utilize online platforms and/or adhere to social distancing requirements.
In Charleston, an emergency ordinance issued by Mayor John Tecklenburg is still in effect which prohibits public indoor or outdoor gatherings of more than ten persons and expressly applies to houses of worship. Despite broad state-wide freedom, faith communities have been slow to convene public gatherings. Instead, they have kept church doors closed and gone on-line, modeling a heightened regard for the safety and well-being of their parishioners.
Prudentially and Pragmatically Resuming In-Person Religious Activities
At this point, amid uncertainty and shifting landscapes, religious organizations can take several decision-making steps toward resuming in-person activities with the proper emphasis on health considerations, corporate responsibility, and missional objectives. Overall, religious leaders should be prepared to proceed with caution and flexibility, with their religious witness, safety considerations, and risk management of paramount importance.
The strategies used may look different depending on the activity, people involved, and specific physical facility considerations. “Big picture” considerations include limiting the number of people present in one space, adopting and enforcing physical safety precautions, controlling ingress and egress from the building, and communicating clearly with potential attendees regarding what to expect and what is expected. Continued live-stream religious activities may also be beneficial, particularly for those who are sick, otherwise unable to attend in person, or hesitant to engage fully in person for religious activities. In proceeding with next steps, keep the following additional considerations in mind too.
1. Remember the Fiduciary Duty of Care
As an overarching consideration, organizational leaders owe a fiduciary duty of due care regarding its activities. In other words, they should be vigilantly attentive to COVID-19-related attendance and participation matters, as they would be for any other safety-related issue that could threaten health and safety of individuals.
Applying this duty of care, leaders and their organizations will be measured by the legal standard known as the “business judgment rule,” under which directors and officers are presumed to make decisions on an informed basis and in good faith. This legal standard raises the question: what would an objectively reasonable person would do in a similar situation? The answer will vary depending on the circumstances, but typically it means following applicable laws and otherwise adhering to “best practices” standards for safety and care.
Failure to exercise such “due care” through ordinary negligence may subject the religious organization to potential liability for personal injury. Failure to do so through religious leaders’ gross negligence or willful misconduct, as may be later measured by a judge or jury, may result personal liability for the decision-making leaders. For more guidance on the fiduciary duty of care, see Directors' and Officers' Duty of Care - Pay Attention and Take Responsibility!.
2. Follow Best Practices for Worship and Other Religious Activities
Within the context of COVID-19-related safety issues, organizational leaders should look to “best practices” guidelines for minimizing the risk of coronavirus transmission such as recently issued guidance by The Centers for Disease Control and Prevention (CDC) for faith communities (and for Illinois organizations, the IDPH's recently issued similar guidance as noted above). The CDC has advanced a number of very specific recommendations that should help leaders navigate and develop appropriate safety measures. For example (and not surprisingly), the CDC recommends healthy hygiene practices, cloth face coverings for staff and congregants, at least daily cleaning and disinfecting of contact surfaces, increased circulation of outdoor air, social distancing, and temporarily limiting the sharing of frequently touched objects (e.g., prayer books, hymnals, bulletins). The CDC has also suggested modifying the method used for receipt of offerings and utilizing a stationary collection box or electronic giving. Additionally, the CDC guidance instructs that organizational staff or congregants who are sick, have had close contact with person with COVID-19, or are otherwise at risk should be encouraged to stay home. The CDC also recommends that before resuming in-person activities, church leadership should develop a plan to address what actions to take if a staff member or congregant becomes sick, and communicate clearly with staff and congregants about the actions being taken to protect their health.
Another great resource is Wheaton College’s Humanitarian Disaster Institute, which has published step-by-step guidance for churches resuming in-person ministry. This manual contains extremely specific and detailed information including considerations for phased-in resumption and for varying types of church activities. This step-by-step approach emphasizes: 1) living out the missional calling through small group gatherings, 2) meeting only with the same group of people who are in the same life stage for deeper and more relevant connections; 3) protecting against COVID-19 by continuing to social distance when meeting in-person; and 4) supporting the larger effort to limit the transmission of COVID-19 by assisting public health authorities in their efforts to identify and notify the contacts of people who discover they have been infected.
A detailed list of safety measures is also set forth in one of the first court cases to allow religious organizations to operate worship services. See Re-Openings, Restrictions, and Legal Rights: Moving Through and Beyond COVID-19 (concluding section – “Take-Aways”). The court’s opinion allowing two Kansas churches to continue with in-person worship activities meticulously recites extensive precautions and careful practices, so that the congregants may gather together.
3. Care for Staff and Volunteers
The above safety precautions apply for staff and volunteers as well. Appropriate “best practices” standards may be found through other CDC guidance, workplace safety standards set by the Occupational Safety and Health Administration (OSHA), and other reputable sources. For additional guidance regarding workplace considerations, see Coming Back to Work: The Careful COVID-19 "New Normal".
4. Communicate Best Practices
Religious organizations should not only follow these best practices for in-person activities, they should also communicate such information to their congregants, staff, and others who are involved in their activities. Send out letters or emails, to demonstrate love and concern for all engaged with the organization, letting people know about current arrangements and what lies ahead in the immediate future. Make this guidance available within the worship facility too, including appropriate signage and handouts so that all stay informed. Make this information otherwise freely available to attendees, such as through website materials. Explain too why it is important to gather together in person, as an integral part of the organization’s religious expression and community of faith. All such communications should reflect both care for others and a conscientious, well-thought-out path forward.
5. Train, Train, Train
Training is a vital accompanying measure for the above protocols. Train the staff, volunteers, and congregants in how to safely carry out new COVID-19-related steps for improved cleanliness, program activities, occupancy restrictions, and other expectations. Document such training steps too, to memorialize the organization’s compliance with applicable best practice standards.
6. Use Waivers
To help reduce and avoid potential liability, consider using updated general waivers or a COVID-19-specific waiver for program activities. Here is one example for a COVID-19-specific waiver, with potential modification to include parent/guardian consent for participating minors:
By attending ____________’s ministry activities, you acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that you [ADD - and your family members; modify elsewhere accordingly as appropriate] may be exposed to, including infection by COVID-19. You also acknowledge that the risk of becoming exposed to or infected by COVID-19 may result from the actions, omissions, or negligence of yourself and/or others, including, but not limited to, _________’s employees, contractors, volunteers, and participants. You agree to assume all the foregoing risks, waive liability against _________ and any other listed parties, and accept sole responsibility for any illness, injury, disability, or death, including all claims that may arise resulting from any of these. You also agree to comply with all applicable restrictions as set forth by __________, including face coverings, social distancing, and other safety precautions.
7. Check Insurance
This is an optimal time too to verify insurance coverages for potential personal harm and organizational liability. Insurance companies may be offering or revising policies to include COVID-related risks.
8. Check Contract Language
So much of life these days will need to be determined at a future date. But in the meantime, religious leaders should strongly consider planning for this summer, fall, and even 2021. Consequently, with respect to special event or vendor contracts, check the language carefully regarding options for potential cancellations. Each contract should contain some type of “force majeure” or “Act of God” contract language that liberally allows for cancellation, with minimal adverse financial consequence to the organization.
9. Be Ready to Explain Resumption of In-Person Activities
Religious organizations occupy a unique and special place in our culture, as well as in our legal framework – as evidenced by their primacy in the First Amendment of the Constitution. Houses of worship are essential in ways that governments do not always affirm or provide for, as evidenced by their disparate treatment in many COVID-19-related state orders. But simply asserting legal rights may not be winsome or otherwise effective. And just assuming that everyone (or most people) wants to meet together again may not be advisable either.
Religious leaders thus should be prepared to communicate why they believe that meeting in person is both doctrinally significant and vitally important to spiritual and overall health. Such communications in turn may lead to productive dialogue about religious organizations’ role in society, the deep human need for fellowship, and the ways in which houses of worship can minister to people – both through in-person religious services and a whole host of other missional opportunities.
This article was posted on May 28, 2020, and updated on May 29, 2020 to reflect current guidelines.
 For example, one Chicago congregation held services on May 25, 2020, only to be greeted by squad cars from the Chicago Police Department. According to news articles, church leadership refused to let the police enter the church. See https://www.breitbart.com/politics/2020/05/24/chicago-mayor-launches-police-raid-shut-down-black-church/. In Holly Springs, Mississippi, a church that won a court battle to remain open was subsequently burned down in an apparent act of arson. See https://www.nytimes.com/2020/05/22/us/mississippi-church-arson-coronavirus.html
 The Governor’s Order circumscribes Illinois citizens’ constitutional free exercise rights, by providing that worshippers may: “…engage in the free exercise of religion, provided that such exercise must comply with Social Distancing Requirements and the limit on gatherings of more than ten people in keeping with CDC guidelines for the protection of public health. Religious organizations and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregants.” (Emphasis added.)