Re-Opening and In-Person Gatherings: Legal Considerations for Religious Institutions
May 8, 2020
Effective 5pm today, North Carolina will be entering Phase 1 of Governor Roy Cooper’s three-phased approach to lifting the statewide Stay at Home Order. Although the Stay at Home Order that began March 30th remains in place (it will not be “lifted” until Phase 2), Phase 1 significantly alters the Stay at Home Order by, among other things, expanding the number of businesses allowed to be open. Specifically, retailers (operating at up to 50% capacity) and most other businesses are permitted to open. There is no longer a distinction between essential and non-essential businesses, but there is still a specified list of businesses that must remain closed, including gyms, salons, and movie theaters. Restaurants will also still be limited to delivery and takeout, and a mass gathering limit of ten people remains in effect, but friends and family can now gather outdoors if under the limit.
For churches, synagogues, and mosques, the mass gathering limit of ten people does not apply if worship services are held outdoors in an unenclosed space and if attendees follow the state’s recommendations to promote social distancing and reduce transmission. Drive-in worship services are also specifically permitted, and funerals have an attendance limit of 50 people. In addition to the state orders, places of worship also need to keep in mind local emergency orders, which may remain in place during Phase 1 with more restrictive measures (the state’s new Executive Order sets the minimum), except local restrictions cannot change the state’s occupancy standard for retail establishments.
From a religious liberty perspective, a key question in evaluating government orders like this is to consider whether the government is restricting places of worship more than local businesses. Under the initial Stay at Home Order, places of worship were essentially grouped with a large list of “non-essential” businesses, but now places of worship are being singled out in a similar manner as theaters, music venues, and bowling alleys (although those businesses must remain completely closed). There are enough similarities between worship services and those businesses to understand the restrictions, but are the restrictions Constitutional? It is unclear.
Interestingly, the wording of the Executive Order leaves open the possibility that worship services can be held indoors if it would be impossible to hold them outdoors even though the state’s guidance and FAQs omits this carveout. The lawyer in me wants to explore the definition of “impossible” further (is it based on weather, parking, or other logistics), but it at least hints at the possibility that Governor Cooper recognizes he will not be able to enforce places of worship from holding worship services indoors during Phase 1. But even if places of worship have a legal argument to do so, whether under the wording of the Executive Order or the First Amendment of the U.S. Constitution, places of worship also need to consider whether holding worship services indoors is prudent based upon the latest recommendations from health officials. Here are just a few questions to consider when shifting from a virtual worship experience to an outdoors or indoors worship environment:
- What are the pain points associated with continuing to provide a virtual worship experience?
- What are the logistical considerations related to shifting to an outdoor worship experience?
- How will members and the public react to a place of worship ignoring a state order and holding worship services indoors? There is a significant public relations component to this analysis.
- What screening, sanitation, and social distancing policies and procedures would the religious institution need to put in place to safely hold an indoor worship gathering?
- At what point and with what precautions in place will members feel comfortable returning to in-person worship services?
- How would the impact and reach of worship services change from a virtual to an in-person experience with fewer attendees?
- What does the theology of the religious institution say about the importance of in-person gatherings?
- Ultimately, what serves your members and the community (two distinct constituencies) best?
If you are a place of worship that is struggling to navigate the legal and logistical landscape of the North Carolina Stay at Home Order, please feel free to reach out to see if we can provide some assistance. For our religious institution clients outside of North Carolina, obviously a different legal framework will be applicable but many of the same practical considerations will apply. Please don’t hesitate to reach out to us if we can be of assistance.