Over the past week, my (Attorney Shawn McLaughlin) phone and email have been burning up with this question. Pastors and churches want to know when they can get back to business as usual and start meeting together again. I’ll start by summarizing what we know about the applicable governmental directives, discuss enforcement, review the options, and finally, I make some recommendations. I trust you will find this information helpful.
As you may know, the Governor and Secretary of Health issued Stay At Home Orders which affected all counties of the Commonwealth as of April 1, 2020. I will leave aside the constitutionality of such actions for purposes of this blog, however, I will add here that a recent Pennsylvania Supreme Court decision, Devito v. Wolf, firmly supports the broad powers to the Governor to take emergency actions including, but not limited to, limiting the movement of people, during a disaster emergency. Be that as it may, after issuing the Stay At Home Orders, the Commonwealth issued Stay At Home Order Guidance to clarify when individuals may leave their homes (i.e., only to perform tasks essential to maintain health and safety, to engage in certain outdoor activities so long as social distancing is maintained, etc.). The Guidance also stated that “nothing in this policy shall be construed to affect the operations of . . . religious institutions.” By all accounts, then, this language rather clearly allows for churches to continue to operate as they normally would, inside.
However, and perhaps somewhat confusingly, the Guidance goes on to say that despite religious institutions not being affected, “religious leaders are encouraged to find alternatives to in-person gatherings and to avoid endangering their congregants. Individuals should not gather in religious buildings or homes for services or celebrations until the stay at home order is lifted.”
In essence, the position of the Commonwealth seems to be: don’t worry, our stay at home polices don’t effect your ability to have religious services and pursue your constitutionally protected rights, however we really, really don’t want you to be doing so.
Enforcement of Directives
When discussing enforcement, here again, the Guidance is not a model of clarity. Instead, it merely notes that “[g]overnments should use best judgment in exercising their authorities and issuing implementation directives and guidance. All such decisions should appropriately balance public health and safety while ensuring the continued delivery of critical services and functions.” In essence, what this means is that enforcement authorities, right down to your local municipality and police officers will have to interpret what they think the Stay At Home Orders and directives are and how they apply or do not apply to citizens, businesses, and organizations. A related government document discussing enforcement guidance states that “[w]e also expect that any discipline for violation of the orders will be progressive such that enforcement will begin with a warning to any suspected violator.”
The Governor’s Plan to Re-Open Pennsylvania
More recently, the Governor rolled out his plan to reopen Pennsylvania. This involves a color scheme of red, yellow, and green. Each color, or “phase,” provides particular directions and restrictions.
The red phase represents the initial stay at home orders we have been living under, complete with the prohibition against large gatherings, restaurants limited to carry-out only, and travel only for life-sustaining purposes.
The yellow phase provides the following social restrictions: large gatherings of more than 25 prohibited; in-person retail allowable, curbside delivery preferred; in door recreation, health and wellness facilities (i.e., gyms, spas, etc.) and all entertainment operations (i.e., movies, casinos, etc.) remain closed; restaurants limited to carry-out and delivery only. Under the yellow phase, social distancing and cleaning guidance of the CDC and DOH must still be followed.
Finally, the green phase lifts aggressive mitigation orders although individuals must continue to follow CDC and Pa. Dept. of Health Guidelines.
Relaxing the “Stay-at-Home” Order
Beginning May 1, 2020, Governor Wolf made the first significant step toward relaxing the stay at home orders since they were issued. As of May 8, 2020, the Governor directed that virtually all counties in the north-central and northwestern parts of Pennsylvania are in the yellow phase, while all counties in the lower half and northeastern parts of the Commonwealth, including south-central Pennsylvania, remain in the red phase. So, with that in mind, the question becomes: When can churches open for indoor services again?
When Can Churches Re-open for Services?
Based on the above analysis, I believe that a technical reading of the orders does not absolutely prohibit churches from meeting inside right now (nor has it ever). That said, there was (and remains) sufficient lack of clarity in the government’s orders and guidelines, that churches made the determination that it was best not to meet indoors but, instead, decided to temporarily suspend all services, to meet online, and/or to adopt other suitable alternatives. I agree with these decisions.
However, now that the relaxing of the orders has begun, how should churches respond? Well, there are several options, which I will look at, but first, here is what I think churches can be doing right now regardless of the color phase in which they find themselves.
I believe a church can have open-air services right now. I know churches that are meeting in cars in the church parking lot, while others are meeting by standing (or sitting) outside the church or other designated meeting place. All this is done while the congregants maintain social distancing (i.e., 6 ft. of separation), wear masks as appropriate, etc. I believe such action is a good way to start to get the congregation together even while the church is sorting through reopening its doors for inside meetings. So, now, here are some ways to think about reopening for indoor services.
Options for Re-Opening Your Church
- You can take the super-safe way of dealing with reopening, and simply not reopen until the Governor declares a green phase in the church’s locale.
- You might decide that once the Governor declares your area to be in the yellow phase, you may decide to resume inside services while being sure to observe social distancing, not shaking hands, wearing mask, regularly cleaning high contact surfaces, washing hands frequently, setting up hand sanitizer stations, etc. Of course, it may be a bit of a challenge to have everyone show up at one time and still maintain 6 ft. of separation while meeting in the sanctuary. If so, consider meeting in a larger area of the church, such as a gym, where you can maintain 6 ft. of separation. You may consider renting space for a time if you do not have sufficient space available. Another option is to consider having multiple services, or services on more than Sunday, such as a Saturday. You could encourage everyone who wants to, to come, but also make an allowance for others to feel free to stay at home and watch or listen online until everyone can re-assemble without any restrictions. I also think it appropriate to allow family members who live in the same house to sit with one another, without 6 ft. of separation, thus conserving space.
- You might decide to resume inside services while your area is under a red phase situation. You may decide to do so with social distancing and the other items discussed in the prior paragraph to reduce the size of the group. However, if you resume indoor meetings while still in the red phase, you will at least have to answer why you are doing so now, given that no restrictions have been lifted, and given that the initial reasons you stopped indoor meetings in the first place still exist.
Regardless of when and how you decide to reopen, you must also remember that the local authorities will be interpreting what it thinks your church can and cannot do in light of the Governor’s Orders, guidelines, and evolving plan to gradually reopen Pennsylvania. As noted above, the local authorities are supposed to provide a warning first to any perceived violators – though that may not stop an over-zealous local municipality or officer from citing your church with a violation without a warning.
Communicate With Your Local Authorities
It may be that many churches in your area will begin to open up, so much so that the sheer volume of openings will cause the local municipality or police to be even less likely to pursue enforcement even if, say, you are still in the red phase. Of course, it is a good idea to contact your local municipality and ask them what their position is with regard to indoor church meetings and what enforcement steps, if any, they plan to take if you do so. So, with these thoughts in mind, perhaps you may decide to be a bit more aggressive in your opening activities and in the timing of them, and simply see what happens.
While every church will have to make its own decision, my personal recommendation is to proceed cautiously. I do not recommend meeting indoor until your area has been declared to be in the yellow phase and then, when it is, I recommend that you observe the Commonwealth’s yellow phase guidelines and directions (which I expect will be changed and updated from time to time). I further recommend a church follow the suggestions I provided above in my discussion of a yellow phase reopening of indoor services as well.
Contact Us for Assistance
Please contact the attorneys at Trinity Law if we can assist you in the upcoming weeks and months as you begin to and, in fact, do start to resume your in-person worship activities.