The New Requirements to Wear Masks

As many states have begun issuing mask mandates, many have contacted our office regarding face coverings and whether or not ordering them to be worn in public is a constitutional overreach on the part of state and local governments.

The constitutional precedent for the mask mandate relates back to case law from over one hundred years ago during the smallpox outbreak. The Supreme Court is currently signaling that the case Jacobson v. Massachusetts sets the legal precedent for state and local governments to issue a mask requirement for the health benefit of their citizens. This backing by the Supreme Court is providing district, state, and federal courts the guidance to allow these mandates to stay in place at this time.

In the case of Jacobson v. Massachusetts, the city of Cambridge required all inhabitants of the city to be vaccinated.

“Whereas, smallpox has been prevalent to some extent in the city of Cambridge, and still continues to increase; and whereas, it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated; and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that all the inhabitants habitants of the city who have not been successfully vaccinated since March 1st, 1897, be vaccinated or revaccinated.”

The Court asked the question whether Mr. Jacobson’s argument against requiring the vaccine could be upheld because its safety could not be guaranteed. The Court’s answer was negative, noting that an affirmative answer to the plaintiff’s question “would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease. Such an answer would mean that compulsory vaccination could not, in any conceivable case, be legally enforced in a community, even at the command of the legislature, however widespread the epidemic of smallpox, and however deep and universal was the belief of the community and of its medical advisers that a system of general vaccination was vital to the safety of all."

This case sets a precedent that constitutional rights may be restricted during a public health crisis as long as the mandate does not unfairly restrict. This is not saying that there will not be a constitutional argument against the forced use of masks at some point, but today, due to the dramatic increase of positive COVID-19 cases, governors and mayors will have the support of the courts, including the Supreme Court, to uphold these mandates for the sake of public health at this time.

As with the church re-opening plan presented back in April of this year, the NCLL believes that churches should go through a three-step process in deciding how to handle the mask mandates.

1. What is best for my church? Only you can answer this question. Your church needs to decide what is best for your people. There are always things you CAN do. The question is what is BEST for your church. This is a changing dynamic as things shift each week.
2. What mandates are in place in my state or locality? Once you determine what is best for your church, you need to understand any local or state mandates. Understanding these mandates and the consequences associated with them is critical to your decision making. If you are unsure, please contact our office for specifics.
3. What is the best testimony for my church? Once you determine what is best for your church and any legal ramifications for those choices, your last consideration includes perception in your community. Your church’s testimony will have far-reaching effects on your ability to minister into the future.

Here are some specific answers to questions concerning masks that can assist your church in making the right decision.

How does the mask requirement affect my church and church services?

From a church perspective, it is recommended that your church greeting team, parking lot attendants, and ushers wear masks to help congregants realize you are taking the crisis seriously. This will help your church gather in a safe way, minimizing liability while maximizing ministry. If you are in a locality that is requiring masks, we suggest your church provide masks and recommend your congregants wear masks into the church building, but when they reach their seat, take them off if they wish to do so. This would legally protect your church and allow congregants to make their own decisions.

If someone is not wearing a mask, should he or she be allowed to stay in the church service?

In the same way many restaurants, gas stations, and grocery stores are reacting, if patrons refuse to wear masks, as long as they are not hurting others by their actions, they can be allowed to stay. If individuals are respecting social distance guidelines and not engaging in inflammatory behavior, allowing them not to wear masks is acceptable.

What if someone has a medical exception?

All governor mandates and the ruling by the Supreme Court allow people to opt out of wearing masks due to medical concerns. Details of any medical concern need not be communicated to anyone. This is private, protected information. Social distancing requirements must still be followed, but they are exempt from wearing a mask.

Cloth face coverings should not be worn by:

• Children younger than two years old
• Anyone who has trouble breathing
• Anyone who is unconscious, incapacitated, or otherwise unable to remove the cloth face covering without assistance

If you have any questions about face coverings or other mandates, please contact our office at 888-233-6255 or by email at info@ncll.org.