In early July, Pennsylvania’s government issued a new order regarding the wearing of masks. This current order is the latest guidance put out by the state. The information provided below is not intended to be a commentary on the legality or wisdom of the guidance but rather an attempt to assist churches and church leaders in understanding the order. As always, church leadership should take into consideration, the unique aspects of their congregation and their activities when determining the applicability of any state issued guidance and as necessary seek appropriate legal guidance for their congregation.
The current order uses the phrase “where members of the public are generally permitted” when referring to a requirement to wear masks indoors. This phrase is somewhat vague because it does not specifically define what it means by “where members of the public are generally permitted.” Unless further guidance is provided, it becomes necessary to try and interpret this phrase in the larger context of generally held legal principles that make distinctions between private and public spaces.
Typically, phrases like “where members of the public are generally permitted” refer to “public spaces” versus private property. This is a critical distinction. A public library and state owned freeway rest areas are examples of “public spaces.” The order seems intended to mandate masks in public spaces. A very broad interpretation of “where members of the public are generally permitted” might also encompass “semi-public” spaces. These are places where anyone can come if they pay, like a café or movie theater. A retail store is another example of a space that is in between the two meanings: anyone can enter and look around without obligation to buy, but activities unrelated to the purpose of the shop are not permitted without limitations.
Here is an example.
A church is private property that is generally not open for public use or for the public to enter the building during the week without invitation or a specific authorized purpose. The fact that a church allows a private group to hold private sessions within a church during the week does not transform church property or church facilities into public or semi-public spaces.
Based on the current language of the order, during the week, most church’s activities do not transform the church’s private property into either a public or semi-public space. Because the property is not a public or even a semi-public space during those times, the phrase “where members of the public are generally permitted” would not apply to private gatherings held at a church. Further, those areas of the building (such as classrooms) that a private group enjoys exclusive use of during sessions are clearly not open to the general public. Taking these factors into consideration, it is my opinion that the order does not mandate the wearing of masks during private gatherings or meetings on church property and church leadership is therefore free to make their own determination as to appropriate safety precautions.
However, while this directive seems clear with regard to some activities, it is not clear when applied to traditional worship services. Because worship services are open to non-members and guests, a church potentially becomes a place where members of the public are permitted and may fall under this directive. Although not part of the directive, the FAQ’s on the PA Department of Health website contains this information:
Do I have to wear a mask at a house of worship such as a church, synagogue or mosque? Yes, individuals must wear a face covering in any public place as well as outdoors when they are in a place where people are congregating and they cannot remain 6 feet apart from persons who are not a part of their household. Individuals should consider carrying a face covering in case they unexpectantly come in close contact with others.
This response to the FAQ does not provide further definition as to the intent of the directive to include semi-public or private spaces but does seem to indicate an intent to require face covering at indoor worship services that are open to the public and where social distancing is not possible.