As we reported last week, last Friday, Governor Pritzker issued Executive Order 2020-38, which expressly exempts the free exercise of religion from the EO’s requirements. Unlike the Governor’s prior Stay at Home Order that limited religious gatherings to 10 people (which expired on May 29, 2020), the new EO only encourages, but does not require faith leaders, staff, congregants or visitors to follow the IDPH recommendations on best practices for religious services.
On May 28, 2020, the Illinois Department of Public Health (IDPH) published recommended practices for places of worship and religious service providers. The recommendations include suggestions for reconfiguring places of worship for social distancing, cleaning and disinfecting protocols, physical distancing guidelines, temperature screenings, and other individual control measures. Notably, the recommendations also endorse certain best practices for in-person services, although the IDPH strongly recommends remote and drive-in services as safer options, “particularly for those who are vulnerable to COVID-19 including older adults and those with co-morbidities.”
A summary of the IDPH guidelines is below:
Safest Options—Remote and Drive-In Services
The IDPH advises that remote services through online streaming, radio broadcast, and/or telephone or dial-in, is the safest method to avoid COVID-19 transmission. For drive-in services, the recommended best practices include congregants who live together to travel together and remain inside the vehicle at all times, and maintain more than 6 feet of distance between cars.
Relatively Safe Option—In-Person Outdoor Services in Small Groups of 10 People of Less
Although the IDPH recommends remote and drive-in services as the safer options to mitigate the spread of COVID-19, the IDPH does provide recommendations to places of worship that choose to resume or expand in-person activities. The IDHP recommends outdoor services in small groups of 10 people or less as a safer option than indoor services. Recommended best practices for in-person services include congregating persons from the same household to sit together and at least 6 feet apart from other congregants and groups, wearing face coverings, regularly sanitizing restrooms, and maintaining sufficient amounts of soup and hand sanitizer.
Guidance for In-Person Indoor Activities 
For indoors services, the IDHP recommends limiting in-person services to small groups of 10 people or less for special events (weddings, funerals, baptisms, etc.), or limiting in-person activities to private prayer and worship. Where the 10-person limit cannot be followed, the IDPH encourages places of worship to limit attendance to 25% of the building’s capacity or 100 attendees, whichever is lower. Other recommendations for in-person services include: gradually increasing capacity limits to enable places of worship to improve safety protocols, testing and social distancing plans, conducting multiple small services instead of one large service, considering reservation systems to limit capacity, assigning seats to ensure social distancing and developing plans for how congregants can safely enter and exit seating areas, staggering small separate services for certain groups, such as for the elderly and vulnerable and congregants with small children who will have difficulty social distancing, and allowing contact tracing for confirmed COVID-19 cases.
Avoiding the Riskiest Activities

Since COVID-19 spreads primarily through respiratory droplets by person-to-person contact, the IDPH recommends avoiding or limiting certain activities at places of worship that pose a heightened of viral transmission. Instead of singing and group recitation and similar practices and performances, the IDPH recommends adopting silent recitation, using prerecorded music, or having a single singer in a separate area with speaker transmission. The IDPH also recommends discontinuing serving food and beverages. Additionally, the IDPH recommends waving or other greetings instead of greetings that break physical distance. Lastly, IDPH advises modifying or discontinuing certain rituals involving kissing, bathing, and other practices that encourages the spread of COVID-19.

Lawsuit Update

For those following the lawsuit filed by Elim Romanian Church against Governor Pritzker to challenge the State’s restrictions on religious services, that case made its way to the U.S. Supreme Court last week. The U.S. Supreme Court denied the church’s appeal, finding that the case was “moot” because the IDPH had issued its new guidance on May 28th that lifted the restrictions challenged by the church.

In a separate decision involving a California lawsuit filed by a place of worship, the Supreme Court found that California’s restrictions on places of worship did not violate the First Amendment, holding that the state had a compelling government interest in protecting the health and safety of residents and that the state’s restrictions did not treat places of worship less favorably than comparable assembly uses.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink