During these challenging times, government and faith communities throughout Texas need to work together to stop the spread of coronavirus. To facilitate this collaboration, state and local governments must clearly articulate their directives aimed at mitigating spread of the virus. This joint guidance from the Office of the Attorney General and the Office of the Governor responds to frequently asked questions by members of the faith community and is the official guidance regarding the effect of Executive Order GA 14 on religious services conducted in churches, congregations, and houses of worship.
The government must give special consideration to houses of worship when issuing orders related to the COVID-19 crisis. The First Amendment to the United States Constitution and Article I of the Texas Constitution protect the right of Texans to freely exercise their religion. In addition, the Texas Religious Freedom Restoration Act (“RFRA”) provides even stronger protections to faith communities, and government must ensure that it complies with RFRA when it acts. Thus, when state or local governments issue orders prohibiting people from providing or obtaining certain services, they must ensure that these orders do not violate these constitutional and statutory rights.
Houses of worship provide “essential services.” On March 31, 2020, Gov. Abbott issued Executive Order GA 14, which defines essential services to include “religious services conducted in churches, congregations, and houses of worship.” Institutions providing these essential services can provide them under certain conditions described in Executive Order GA 14 and local orders by counties or municipalities that are consistent with GA 14. To the extent there is conflict between the Governor’s Executive Order GA 14 and local orders, GA 14 controls.
Houses of worship must, whenever possible, conduct their activities from home or through remote audio or video services. Houses of worship often gather as large groups of people in one building during a religious service or activity. But during this public health crisis, in accordance with guidance from the White House, Centers for Disease Control and Prevention (“CDC”), and Texas Department of State Health Services (“Texas DSHS”), providers of essential services must follow certain mitigation strategies to slow the spread of the virus. Thus, under the Governor’s Executive Order GA 14, houses of worship should conduct remote audio, video, or teleconference activities whenever possible.
If a house of worship cannot conduct its activities remotely, then the White House and CDC guidelines still control in order to stop the spread of Coronavirus. If a house of worship cannot conduct its service remotely due to a lack of capability (technological or financial), then it should follow the Governor’s Executive Order GA 14, that houses of worship are to conduct their activities in accordance with the White House Guidelines.
For example: • Instruct sick employees, volunteers, and guests to stay home; • Practice social distancing by maintaining appropriate distance between people; • Maintain good hygiene by washing your hands frequently, using hand sanitizer, using your elbow to cover coughs, and not touching your face; and • Clean and disinfect work areas frequently.
Houses of worship, like providers of other essential services, are to follow additional guidance from the White House and CDC whenever possible.
Some houses of worship must avoid large gatherings. Texas is a big state and the transmission rate of COVID-19 varies in different communities. Given this, houses of worship should work with counties and municipalities to evaluate the rate of local community spread and determine the appropriate level of mitigation strategies to implement. For example, more detailed guidance from the CDC currently recommends that if a community is experiencing substantial community spread of COVID-19, then the houses of worship in that community should cancel all in-person gatherings of any size. But if a community is experiencing moderate to substantial spread, then the CDC recommends a reduction of activities in coordination with local health officials, possible smaller gatherings incorporating social-distancing measures, cancellation of activities with 10 or more people when high-risk populations attend in person (including those over 65 and those with underlying medical conditions), 5 and use of creative means to deliver other faith-based services. For more information, houses of worship should consult CDC guidance.
For example, a church may hold services in its parking lot, with attendees remaining in their cars (windows down), parked in every other parking spot, with the minister using amplification to preach. Or because Executive Order GA 14 permits drive-thrus to operate, then a house of worship may, according to their faith practices, provide communion or a blessing through a similar drive-up service. Or pastors with smaller congregations may consider conducting multiple services of 10 people or fewer in their sanctuaries, so long as they maintain appropriate social distancing, properly sanitize the building between each service, and provide hand sanitizer.
These restrictions do not violate the religious liberty of houses of worship.
Under the extraordinary circumstances in which we temporarily live, these restrictions do not violate the religious liberty of houses of worship because the government has a compelling interest for implementing the rules (stopping contagion) and the rules are the least restrictive means of burdening religious practice (they allow houses of worship to stay open for ministry, but suggest ways that help stop the spread of COVID-19).