By Jason J. McGuire
As you are no doubt already aware, on December 10, 2021, Governor Kathy Hochul (D-NY) announced masks will be required to be worn in all indoor public places, unless businesses or venues implement a vaccine requirement. Only the day before, news reports indicated that the Governor was not considering any new mandates. Those reports did not age well.
Pastor, I feel for you. Just as I thought the mask wars were drawing to a close, the Governor has opened a new front. There will often be people on both sides of this issue within the same congregation. Navigating the narrow waters between the two is not always easy, but it does present a wonderful opportunity to model living in grace, love, and compassion with one another. Philippians 2 is a fitting passage for this season of church life.
Please allow me to briefly answer some of the most common questions I have been receiving regarding the new mask mandate, particularly as it pertains to churches. The state has provided more information regarding the mandate here.
Does this new mandate apply to churches?
In a word, yes. Per Gov. Hochul’s directive, masks are required for all staff and visitors over age 2 who are able to medically tolerate a face covering in all indoor places, except for places of private residence. Unless your church is meeting in a private home, the mandate would apply to church gatherings.
When does this mask mandate take effect?
The mask mandate does not take effect until Monday, December 13, 2021. Regardless of how your church leadership chooses to respond to this news, this week’s Sunday services remain unimpacted by Gov. Hochul’s declaration.
How long will it last?
For the moment, it will remain in effect until January 15, 2022. However, the masking mandate is subject to review and the Governor could extend it beyond that date.
By what authority is this being enacted?
Acting State Health Commissioner Dr. Mary T. Bassett issued a letter of determination, claiming to be consistent with authority vested in the Public Health and Health Planning Council and her role as Commissioner of Health. The Acting Commissioner cites sections 201, 206 and 225 of the Public Health Law and 10 NYCRR 2.60 as Authority for her action. Essentially, it is the State Health Department recommending to the Governor what she should do in this matter. The Governor has indicated that she intends to enact the masking recommendations of the Health Department.
Though it has not yet been officially released, we expect that an Executive Order will be signed and in effect by Monday, December 13, 2021. Once the order is posted, our organization will review that as well. To understand the legal basis the Governor claims to enact this mandate, I would refer you to “An Analysis of Gov. Kathy Hochul’s Mask Mandate”. Though I am not an attorney—and what I am about to say should not be construed as legal advice—I remain dubious about the constitutional authority for the Governor’s actions. Ultimately, the courts will likely determine whether this mandate is valid.
What is the penalty for non-compliance?
Per the state, “A violation of any provision of this measure is subject to a maximum fine of $1,000 for each violation.” Local health departments are being asked to enforce these requirements, but multiple counties have already indicated that they do not have the manpower to enforce this mandate. How rigorously the mandate is enforced will likely vary by county. In this instance, the penalty would be charged to the congregation, not the congregant. Churches that choose non-compliance or acts of civil disobedience should be aware of this financial penalty, but also consider the negative media attention that their church may draw if there is a COVID outbreak within their congregation.
Are there any religious liberty implications regarding this matter?
While I do not personally have a religious objection to wearing a face mask and may see it as an act of love toward my neighbor and grace toward those who prefer that I wear a face mask in their presence, I acknowledge that there are some individuals that oppose mask wearing as a matter of religious freedom. My concern, as it pertains to churches, is somewhat different, though.
I do not believe that the First Amendment allows the state to order churches to check vaccination cards or demand face masks before allowing people to enter the building for worship. A church is within its authority to ask people to wear masks or show proof of vaccination, just as a church is within its authority not to do either of these things. (As a pastor, I would prefer to avoid such requirements; I would not want to deny anyone the opportunity to hear the Gospel simply because that person chooses not to wear a mask. Other pastors may see the matter differently.) Churches throughout New York have been making varied decisions on these questions based on the needs of their congregations. They should continue to have the freedom to do so. The courts may take a different view of the constitutionality of a mask mandate for churches than I do, but I believe that imposing a requirement like this upon churches exceeds the state’s authority.
Personally, and practically, I would encourage mask wearing—whether I believe in its effectiveness or not—as a matter of conscience and outward display of submission to those in authority over us, but I would not deny the right to gather in worship to any person who would choose to do so, regardless of mask wearing or vaccination status.
Regardless of how a church responds to this new mandate, it is crucially important that believers not allow controversies over masks and vaccinations to divide us, or to distract us from doing the Lord’s work and fulfilling the Great Commission.
Pastor, if I can be of any more specific help to you in this matter, please feel free to contact me. Know that I am in prayer for you as you minister in this historic and challenging time.
Rev. Jason J. McGuire serves as the executive director of New Yorkers for Constitutional Freedoms. He attended Practical Bible Training School (now known as Davis College) in Johnson City, NY, and holds a Bachelor of Theology Degree from Andersonville Theological Seminary, Camilla, Georgia. Prior to his employment with NYFRF, McGuire served as pastor of the Ingleside Christian Church in Naples, NY.
This article was last updated on December 16, 2021.