by Andrew Zeller

—May 11, 2020
Guest Editorial
Opinion and Commentary

I am interested in pointing out a significant inconsistency between the current Colorado Public Health Order (Order 20-28) and what churches are being told by Colorado State authorities.
Whether it is safe for churches to meet at this time during this pandemic is a point for discussion. How much constitutional authority the state has to limit church meetings is another point of discussion. But for those who are trying to play nicely with the state, Colorado is not being consistent with the Order and its execution.
Churches are referred to in Appendix F: Critical Businesses. The Order lists approximately 90 businesses and services that are allowed to “operate as normal” (page 26) as long as they comply with social distancing and other Public Health Orders in effect. I am at least thankful that churches are considered a critical service activity by the state.
Regarding Churches, the Order says, “Houses of worship may remain open, however, these institutions are encouraged to implement electronic platforms to conduct services whenever possible or to conduct smaller (10 or fewer congregants while ensuring 6 feet in between congregants), more frequent services to allow strict compliance with Social Distancing Requirements.”(AMENDED PUBLIC HEALTH ORDER 20-28, SAFER AT HOME, May 4 and 8, 2020, pp. 28-29)
I was told on May 7th from our Custer County Public Health Office that The Colorado Department of Health interprets this to mean that only ten or fewer can meet in person. But that is not what the Order says. The Order encourages houses of worship to implement electronic platforms and
encourages them to limit their numbers to ten or less. They are not ordered to do so.
The Critical Business context of this Order also clarifies the interpretation. None of the other critical businesses or services is required to limit their numbers to ten or fewer people. They are all able to function as “normal,” with social distancing. To make additional requirements for churches on this point is discrimination.
On May 5th, Colorado published “Guidance for Places of Worship”. It says, “gatherings are permitted as long as they are under 10 People and social distancing is observed.” This is inconsistent with the
Order, but this is only “guidance.” It is not an Order. On May 7th, when Custer County Department of Public Health asked
the state for a clarification on the word “encouraged” in the Order, the state response was to read the guidance.
So, what is going on? First, I am thankful for our Custer County Public Health Department. I believe they are doing their best to keep Custer County safe. However, they are only lieutenants in a large State Department that is giving them conflicting messages.
What is going on is that Colorado has worded
Order 20-28 to stay in conformity with the U.S.
Constitution, while promoting the non-authoritative
guidance. The state simply does not want churches to meet. This may be for health purposes rather than for religious discrimination. But for whatever reason, it is still discrimination.
I asked an attorney for his interpretation of the Order and he agreed that the Order only encouraged using electronic platforms and only encouraged 10 or less people. These were not required. He also agreed that the Guidance is not authoritative.
When I applied for our church to be able to meet, we were refused by our local Public Health officials on the basis of our having more than 10 people. Other than that, the Custer County Public Health said our application was “perfect.”
So, where does this leave us in Custer County? I am a proponent of everybody, including government leaders, being patient with one another as we figure out our roles in this unique emergency. Only recently has the whole Custer County Board of Commissioners understood their role when they convene as the County Board of Health. Now that they know their role, they need to require the County Public Health Department to at least comply with what State Orders say, even when the state misinterprets their own Order. Or, if State Orders are unconstitutional, the Commissioners can lead the way in developing our own county plan.

Andrew Zeller is a pastor and current President of Sangre de Cristo Seminary located in rural Custer County.