As the coronavirus pandemic continues, nonprofits have suspended in-person programs, houses of worship have pivoted to livestream or recorded services, and employers and employees alike have learned all about videoconferencing capabilities for remote working. Meanwhile, government leaders across the states continue to announce updates for stay-home orders, facial coverings, and business operations. In Illinois, April 30, 2020 marked Day 40 of Governor Pritzker’s stay-home order, confining all residents and shutting down all operations, except for “essential activities.”
The key question now is: What’s next? What steps must be taken to legally re-open religious organizations, nonprofits, and businesses? What should nonprofits do to preserve safety in view COVID-19-related risks? These questions can be addressed by considering risk management, the impact of government restrictions, and First Amendment rights of assembly and religious liberty.
Re-Opening – Careful Risk Management Measures
Much has changed since our firm published our March 10, 2020 article titled “Best Practices Amidst Coronavirus Concerns.” Yet many of the same practices apply as the country moves toward relaxed restrictions and re-openings. Among them are the following:
- Remain attentive to changing dynamics
- Exercise cleanliness precautions
- Continue to practice social distancing measures
- Keep sick workers at home, as well as anyone exposed to COVID-19
- Give special attention to at-risk people
- Communicate well with staff and program participants
- Carefully evaluate closure-related decisions (including event contracts and insurance coverage)
As COVID-19-related government orders lapse or are modified, nonprofits and businesses will begin to move forward with re-opening preparations. Leaders of all organizations will need to think through precautions for program participants, staff, and visitors. Participation waivers may warrant updates that expressly identify disease-related risks, seek acknowledgment of participants’ healthy physical condition, and obtain release of liability from exposure to disease.
Numerous employment-related measures may also be necessary. These include remote work, distanced work stations, flexibility regarding childcare, extended sick leave, and provision for extensive new staff onboarding. Nonprofits and businesses may decide to impose restrictions on guests seeking to use their facilities, such refusing entry to those who may be sick, disruptive, or unwilling to comply with applicable safety measures.
What if stay-home orders and similar operational restrictions are still applicable? Are these planning steps premature, or appropriate now? Much depends on the state in which a nonprofit or business operates, and the legal landscape is continually shifting. As addressed next, the legality of Illinois Governor Pritzker’s recently extended stay-home order has been successfully challenged, albeit with more court battles ahead. Churches in other states have also asserted First Amendment rights of assembly and religious liberty with significant success, providing helpful instruction for other organizations seeking to commence program activities again.
Illinois Stay-at-Home Order – or Not?
Governor Pritzker’s Disaster Extensions Through May 30, 2020
Governor Pritzker issued his first disaster proclamation on March 9, 2020, as an Executive Order. His legal authority for doing so arises from the Illinois Emergency Management Agency Act (20 ILCS 3305), which provides authority for the Governor to exercise emergency powers upon his declaration of an emergency or disaster. The Act grants extraordinary power to the Governor, including the ability to take title to personal property for government use, take control of food, medicine, and fuel, and to occupy real estate for government-determined purposes. Section 7 of the Act expressly provides, however, that such power shall not exceed 30 days.
Rather than end his exercise of emergency powers after 30 days, Governor Pritzker extended his Executive Order on April 1, 2020. He then announced on April 23 that he would extend it again through May 30, 2020, with continued stay-home requirements and only “essential business activities.” On April 29, 2020, he modified the Executive Order with respect to minimal activity modifications regarding outdoor recreation, gardening sales, and animal grooming. Notably, the modified Order permits retail stores to increase occupancy to 50% of capacity.
Court Action Pushing Back
The governor’s recent extension to his order has met with significant resistance. On April 23, 2020, Illinois State Representative Darren Bailey filed suit against Governor Pritzker, claiming that his extended Executive Order was “in excess of the authority granted him” under the Illinois Emergency Management Agency Act. Representative Bailey claimed that Governor Pritzker’s emergency powers lapsed on April 8, and thus any extension of his Executive Order beyond that date is unlawful and void.
On April 27, 2020, Clay County Judge Michael McHaney granted Representative Bailey’s request for a Temporary Restraining Order, limiting its applicability only to Rep. Bailey personally. The Order recognizes Rep. Bailey’s “clearly ascertainable right in need of immediate protection, namely his liberty interest” against being quarantined in his own home, along with irreparable harm and no other adequate remedy. The State of Illinois has appealed this decision, and another court hearing is reportedly scheduled for next week.
On April 29, 2020, State Representative John Cabello also filed a lawsuit challenging Governor Pritzker’s Order. Styled as a “class action” lawsuit seeking relief for himself and “all citizens similarly situated,” Rep. Cabello’s lawsuit is similar to Rep. Bailey’s, except that the suit argues that state law vests authority to declare and enforce quarantine and isolation orders in the Illinois Department of Public Health (IDPH), pursuant to the Illinois Department of Public Health Act (20 ILSC 2305), and thus that Governor Pritzker’s orders mandating Illinois citizens to stay in place are void.
On April 30, 2020, the Beloved Church of Lena, Illinois and its pastor, Stephen Cassell, filed a federal lawsuit seeking injunctive action in order to hold religious services. Their suit asserts First Amendment rights including freedom of exercise, assembly, and free speech under the United States and Illinois constitutions, constitutional due process violations, and other claims. That evening, Governor Pritzker further modified his Executive Order to grant permission for houses of worship to gather in groups up of to ten people, provided that they exercise social distancing precautions, and with “encourage[ment] to use online or drive-in services.” Such activity is now included as “essential,” expressly “to engage in the free exercise of religion.” That is certainly welcome news for many, especially as many churches and other religious organizations have been engaged in online worship services since the Illinois shut-down.
Citizens and government bodies in other states including Wisconsin, Michigan, and California have brought challenges to stay at home orders and extensions. While not guaranteed to be successful, these challenges illustrate the balance of powers within government at work and provide for important checks on state Executive power, as exercised by governors and state agencies. The cases also illustrate that, although the public at-large recognizes the continued risk of COVID-19, patience with shelter in place restrictions may be growing thin and push-back could increase.
First Amendment Challenges and Successes
Across the country, religious organizations have brought a wave of new lawsuits challenging stay-at-home orders’ effects on religious practice, based on First Amendment rights of religious liberty and freedom of assembly and with significant success. These cases are likely to be tested under a “strict scrutiny” analysis by evaluating the governmental law or order as follows:
- There must be compelling government interest to enact the law or order
- The law or order must be sufficiently “narrowly tailored” to achieve compelling interest
- The law or order must use the “least restrictive means” to achieve compelling interest
Given the sweeping breadth of many states’ broad stay-home orders and some state orders’ omission of religious liberty considerations, such as in Illinois, courts will likely give much attention to the “narrowly tailored” and the “least restrictive” requirements set forth above.
The first reported challenge to a stay-at-home order was in Kentucky, after the Mayor of Louisville’s prohibited a church from conducting a drive-in Easter service. A federal trial court held on April 11, 2020 that the mayor’s prohibition violated the church’s free exercise of religion and granted an injunction prohibiting enforcement of the order. In a strongly worded opinion surveying the history of religious freedom in America, the judge faulted the Mayor’s prohibition on the grounds that he was simultaneously permitting drive-in liquor store operations. The court held that the Louisville’s order failed the last part of the test “because they are not even close to being narrowly tailored to advance” the City’s compelling interest.
Soon thereafter, a federal trial court in Kansas held that Governor Laura Kelly’s Executive Order, which prohibited churches from conducting activities while allowing similarly situated businesses and schools to do so. The Kansas court found that Kelly’s order violated two church’s right to the free exercise of religion by imposing “restrictions on religious exercises that are not narrowly tailored to further the compelling governmental interest . . . and which are more severe than restrictions on some comparable non-religious activities.”
A New Mexico church seeking to hold in-person gatherings received the opposite judicial result: a federal judge upheld the constitutionality of a New Mexico Department of Health order that prohibits gatherings of five or more individuals, in response to a megachurch’s efforts to hold in-person gatherings exceeding such limits.  This ruling demonstrates the significance of specific facts, the potential variations among judges, and the unlikelihood that any large-scale in-person gatherings will allowed soon (at least without substantial safety measures as identified in the Kansas case).
In Mississippi, two churches have successfully asserted their First Amendment rights against unlawful municipal action. First, Temple Baptist Church sued the City of Greenville, Mississippi a few weeks ago, challenging the City’s order prohibiting drive-in church services on the basis that it went beyond the Governor of Mississippi’s order and even allowed drive-in food services. The City recently amended its order to lift the ban on such activities. Second, the First Pentecostal Church of Holly Springs successfully obtained a restraining order against the City on April 24, 2020 so that it could continue with peaceable Bible studies and other religious activities in compliance with appropriate safety measures.
Take-Aways – First Amendment Rights Matter, and So Do Safety and Cleanliness
The reported cases thus far have developed on very fact-specific bases, focusing on the government order being challenged and the precise activities at issue. Nevertheless, they share common ground involving critically important First Amendment values, not only for due consideration of such rights in relation to public health aspects but also for the appropriate balance of power among the three government branches. State courts seem to be holding as problematic and unconstitutional government orders that allow for numerous “essential” exemptions, but inadequately accommodate certain religious activities. Similarly, state courts seem to be holding unconstitutional government orders that are overbroad or that indiscriminately prohibit many types of religious activities such as “drive-in” church services or small socially distanced religious gatherings.
Safety measures still remain paramount, thus this article ends with the following coda. Of key importance are the following safety measures that the two Kansas churches agreed to adopt, which provide helpful instruction for other organizations in determining how best to re-open and provide well for staff, program participants, and visitors. As listed in the Kansas Court’s order:
First Baptist Church of Dodge City will adhere to the following:
- Prior to and following the in-person service, the facility will be deep-cleaned;
- Invitations will be directed to regular church attendees for this in-person service;
- Individuals will be advised to continue to engage in “stay at home” protocols as directed by EO 20-16 in order to attend the service;
- No church members are known to have had any contact with known COVID-19 confirmed cases;
- Attendees will be advised to perform temperature checks at home on all attendees prior to attending the service. Individuals that are ill or have fevers will not attend;
- High-risk individuals will be advised not to attend the in-person service;
- Attendees will be advised to bring their own PPE, including masks and gloves;
- Attendees will be advised not to engage in hand shaking or other physical contact;
- Hand sanitizer will be available for use throughout the facility;
- The in-person service will be limited to 50 individuals in a space that has a capacity for 300 individuals (a cross-shaped auditorium 50 feet by 74 feet at the center; 2,950 square feet total, allowing almost 57 square feet available to each attendee at maximum social distancing);
- Co-habitating family units may sit closer together but otherwise the maximum social distancing possible will be used, however, at a minimum, the CDC recommended protocol will be observed with a minimum distance of at least 6 feet;
- A single point of entry and single point of exit on opposite sides of the building will be used, establishing a one-way traffic pattern to ensure social distancing;
- Ventilation will be increased as much as possible, opening windows and doors, as weather permits;
- These procedures will be communicated to church members in advance of the service;
- Church bulletin and offering plates will not be used during the service;
- Attendees will be advised to wash their clothes following the service;
- If Church leadership becomes aware of a clear, immediate, and imminent threat to the safety of the attendees or cannot follow the protocols listed above, the gathering will be immediately disbanded.
Calvary Baptist Church of Junction City will adhere to the following:
- Splitting out pews and marking designated sitting areas to keep non-cohabitating congregants at least six feet apart before, during, and after the worship service;
- Marking multiple entrances to encourage socially distanced foot traffic;
- Propping doors open to prevent the need for congregants to touch doors while entering and exiting the church or sanctuary;
- Suspending passing offering plates and bulletins;
- Actively discouraging handshaking or other social touching;
- Offering hand sanitizer throughout the building;
- Providing face masks to offer to any interested persons.
The coronavirus pandemic has carried nonprofits, businesses, and individuals into uncharted waters with broad exertion of government powers and unprecedented limits on civil rights. And troublingly, we are not yet through the pandemic, with no vaccine or reliable treatment in sight. Yet we have hope for the future, preparations that can be made, and ways to serve others while following appropriate protections and precautions.
 The Illinois Department of Public Health has developed an extensive and updated “Pandemic Influenza Preparedness and Response Plan,” dated March 2020. Assuming that the rationale for the Act’s 30-day limit is at least so that a state agency can fully and properly address the matter, that condition has been met through the IDPH’s current plan. Notably, the Plan addresses matters of quarantine, isolation, and business shutdowns with a different public health approach than Governor Pritzker’s sweeping and extended order. See here.
 Notably, the first significant application of this legal standard was in Korematsu v. United States (1944), in which the U.S. Supreme Court upheld the forced relocation of Japanese Americans in internment camps during World War II.
 See here. The United States Department of Justice filed a “Statement of Interest” in that litigation, affirming the United States’ “substantial interest in the preservation of its citizens’ fundamental right to the free exercise of religion, expressly protected by the First Amendment.” The DOJ addressed “issues of national importance regarding the interplay between the government’s compelling interests in protecting public health and safety from COVID-19 and citizens’ fundamental right to free exercise of religion,” and more specifically with application of the “strict scrutiny” test as noted above.