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A Legal Guide for Reopening Places of Worship

Places of worship all across the country are eager to reopen but are struggling with how and when they can do so. Based on our experience working with congregations in different states, we have put to together this quick guide to help them understand their options and find the safest and quickest route to reopening.

  1. Can we open?

The first question to ask is whether it is legal to open your place of worship for in-person gatherings. Unfortunately, the various levels of government have created a hodge-podge of rules that are seldom user-friendly and may even conflict with each other. It is also hard to plan when the rules at the federal, state, and local levels are constantly in flux—which is why some congregations are retaining attorneys to help them navigate these murky legal waters.

The first place to check for legal guidance is your local government. This would include your city, village, township, or county. Some local governments have adopted orders identical to state-wide orders, while others have implemented orders that are different than state orders. And since the responsibility of enforcing these orders primarily falls on local police departments, you should also check to see if your local police department has indicated how they will be enforcing any state or local orders. Some police departments have even issued public statements that they will not enforce certain orders.

Once local rules have been reviewed, you should also review any state-wide orders which may differ from local rules. Most states have some sort of order in place restricting large gatherings. Some states have banned in-person worship altogether. Others have banned gatherings but have provided exemptions from prosecution for religious congregations. Still others have allowed places of worship to open but with strict health and safety guidelines. If you are considering re-opening your place of worship, you need to understand your state’s requirements.

An emerging issue with local and state guidance is the interplay between mass gatherings for protest and COVID-19. While many of the recent protests have violated stay-home orders, and almost none of the protests have observed social distancing, local and state officials have been clear that these gatherings will not be disbanded due to COVID-19 fears. Any government that exempts mass protests from rules applicable to other forms of speech, such as religious services, is likely to be in violation of the First Amendment. As with all laws concerning COVID-19, this is a rapidly-changing issue.

Finally, all places of worship should review federal health guidelines for resuming in-person worship. While there are no federal laws currently preventing worship, abiding by suggested federal guidelines is incorporated into some state and local orders. Further, these guidelines can help keep attendees safe and could help shield the organization from potential liability in the event of COVID-19 infections resulting from in-person worship. It is also worth noting that President Trump has declared that religious services should be considered “essential” in relation to other activities. While not mandatory authority for the states, this pronouncement signals how the federal government views places of worship.

Even if your local or state government has banned in-person worship, there may be a court decision limiting or striking down the ban. Religious organizations have begun challenging the various orders in court as they seek to re-open. State courts are the first place to look for such an order. For example, an Oregon state court recently struck down portions of the governor’s COVID-19 measures. If there have been no state court decisions regarding the relevant orders, there may be federal court decisions addressing the constitutionality of state or local restrictions.

The courts who have addressed the limits on in-person worship have not been consistent. Some courts, like district courts in Illinois and Mississippi, have criticized churches for challenging the government restrictions and have upheld the restrictions. Others, such as district courts in Kentucky, North Carolina, and Kansas have found that certain restrictions violate the U.S. Constitution. The highest court to speak on this issue, the Sixth Circuit Court of Appeals, found that an order that banned in-person worship but allowed secular gatherings was not enforceable. With such a wide range of guidance from the courts, it is important to consult with an attorney who is familiar with these court decisions.

  1. How should we reopen and what risks do we face?

If it can be verified that it is indeed legal for your place of worship to re-open, there are still many issues that need to be considered. Specifically, you should consult with an attorney and your insurance provider about potential liability concerns if an attendee contracts COVID-19 after attending a service, or if it is discovered that an attendee was infected while attending a gathering.

Even if it is legal to hold worship gatherings, there are likely certain health and safety guidelines that must be followed because of local, state, or federal rules. Your organization may need to utilize social distancing, changes in the service, multiple service times, and protective measures such as facemasks.

If your state and local governments are not mandating compliance,  you may still wish to increase health and safety consideration for the safety of your attendees. When considering these measures, it is important to evaluate how these measures should be implemented and what effect they will ultimately have on your organization and attendees. Leadership should keep in mind the duty owed to attendees to exercise reasonable and informed discretion regarding health and safety. Simply opening up for regular services with no safety measures is not likely to satisfy this duty.

Along with instituting safety measures, it will be vital to train staff and volunteers in the new measures. All paid and unpaid workers and leadership should be familiarized with safety policies and procedures. Issuing the policies and procedures in writing is the safest course. Proper training will enhance the safety of attendees and lower the organization’s exposure to potential liability.

Ultimately, there is no one-size fits all solution for places of worship. Each congregation is different and presents different issues that must be carefully addressed. We stand ready to help congregations across the country understand their civil rights as well as how they may reopen in a safe and legal way.

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