DENVER — The Colorado Department of Public Health and Environment (CDPHE) updated its public health order Monday to add religious ceremonies to its list of exemptions from COVID-19 restrictions.
The move comes nearly two weeks after the U.S. Supreme Court sided with religious groups in a lawsuit over the limits New York was placing on people attending religious services. In that case, the justices ruled 5-4 that houses of worship cannot face more restrictive regulations than other sectors.
However, there have been times in history where states were able to make decisions about religious groups due to a public health risk.
“In the United States, public health has always been a major, major concern. If we go back to the founding, churches would be closed during pandemics,” said Craig Konnoth, an associate professor of law at the University of Colorado School of Law in Boulder. “If we look at the 1918 flu, churches were closed. So, there’s no limitation on closing churches at least under historical constitutional law.”
More recently, the Supreme Court ruled last spring and summer on similar cases and sided with states against religious groups when it came to COVID-19 restrictions.
There are two things Konnoth believes changed to influence the new decision: The Supreme Court majority and the COVID-19 restrictions not applying to certain sectors such as restaurants.
With Justice Amy Coney Barrett on the Supreme Court, Konnoth believes the court will be more friendly to cases from religious groups.
“I think that religious organizations are within reason going to get various kinds of exemptions moving forward,” he said.
Colorado’s new public health order exempts houses of worship and associated ceremonies such as weddings, funerals and baptisms (religious or secular).
Before, indoor worship was subject to the same COVID-19 dial as other businesses such as restaurants or retail stores. In Level Red, houses of worship could operate at 25% capacity with a 50-person cap.
For Level Purple, a 10-person cap was instituted for indoor religious ceremonies. With the amended health order, these services are considered critical and while they must do their best to follow public health recommendations, they may exceed recommended capacity caps if they cannot conduct their essential activity within those restrictions.
However, mask wearing will still be required indoors, and other measures like sanitation and 6-foot spacing, are still required.
The change caused some confusion, though, when it comes to whether the exemption applies to independent wedding venues or funeral parlors not associated with a particular religious group.
In a statement to Denver7, CDPHE wrote, “These guidelines and recommendations apply to worship and associated ceremonies such as weddings, funerals, and baptisms. Life-rites include wedding ceremonies, funeral services, baptisms, bris ceremonies, and other religious ceremonies.”
Denver7 asked for further clarification but did not receive a response.
There was also some confusion about whether the exemption will extend to the receptions after the wedding ceremony, baptism or funeral service.
CDPHE said the social receptions or parties associated with those events will be subject to the indoor and outdoor event guidance under the COVID-19 dial.
Other life rite events, such as birthdays, graduations and quinceañeras also do not apply to the list of exemptions.
“The Governor’s office worked with the Office of the Attorney General and CDPHE to ensure our orders meet the challenges posed by the pandemic and all legal requirements. As always, we encourage all Coloradans to wear a mask in public, maintain six feet distancing, and wash hands frequently,” said Conor Cahill, the governor’s spokesperson.
Denver7 spoke with several religious organizations Tuesday who said they are now working with their legal teams to figure out what the amended order means and how to move forward.