Religious Organizations and Nonprofits

The sentence is a statement about the public record, and the public record is set out in the layers and quarters sections above and on the State, metro and federal pages of the Library: for the second quarter of 2020, the stay-at-home, gathering-ban and closure orders of every State and the District of Columbia; for the third quarter of 2020, the reopening caps of every State; for the fourth quarter of 2020 and the first quarter of 2021, the winter orders of twenty-two jurisdictions; for the second quarter of 2021, the caps that ran to dates between April 12 and June 30, 2021 in thirteen jurisdictions; and for the third quarter of 2021, the federal conveyance, eviction, visitation, health-care, prison, entry, border and contracting orders in force on July 1, the indoor face-covering orders of seven States and the District of Columbia and of more than a dozen metros, Hawaii's gathering caps, the school and child-care orders of thirteen States and the health-care-worker orders of fourteen jurisdictions, each with its exhibit identifier and its dates. The Library indexes each of those instruments with its issuer, dates, operative words and grade. The Service's records, whatever they are, do not include them; the public record does. For every quarter from the second quarter of 2020 through the third quarter of 2021, in every State, the sentence is factually incorrect.

Six instruments, quoted from their own texts, illustrate the record the sentence describes as empty. On March 16, 2020, the Governor of Connecticut ordered that "all such gatherings of 50 or more people, including but not limited to, community, civic, leisure, or sporting events; parades; concerts; festivals; plays or live performances; conventions; and similar activities, as well as religious, spiritual or worship gatherings of such size, are prohibited throughout the State of Connecticut."²³⁷ On March 17, 2020, the Governor of Iowa proclaimed that "Social, community, spiritual, religious, recreational, leisure, and sporting gatherings and events of more than 10 people are hereby prohibited at all locations and venues, including but not limited to parades, festivals, conventions, and fundraisers," and that "Planned large gatherings and events must be canceled or postponed until after termination of this disaster."²³⁸ On March 19, 2020, the Kentucky Cabinet for Health and Family Services ordered that "All mass gatherings are hereby prohibited," defining them to include "community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities."²³⁹ On March 22, 2020, the Ohio Director of Health ordered every person in Ohio to stay at home and provided that "covered businesses include any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function it performs, or its corporate or entity structure," naming "religious and secular nonprofit organizations, including food banks" among them.²⁴⁰ On October 6, 2020, the Governor of New York ordered that in red zones "houses of worship shall be subject to a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer," and on November 25, 2020 the Supreme Court of the United States enjoined enforcement of those limits against the applicants, an order that exists only because a governmental order limiting religious gatherings existed.²⁴¹ On August 26, 2021, the Governor of Illinois ordered that "all individuals in Illinois who are age two or over and able to medically tolerate a face covering (a mask or cloth face covering) shall be required to cover their nose and mouth with a face covering when in an indoor public place," effective August 30, 2021, one of the workplace infection-prevention and exposure-control requirements of an instrument that also compelled vaccination or weekly testing of health-care, school and State workers, and that reached every sanctuary, fellowship hall, classroom and pantry in the State for the last thirty-two days of the third quarter of 2021.²⁴² Each of the six is a public record; the sentence describes a period that did not occur.

The Notice's own sentence carries its own condition: "all of the employer's operations." The next sentence of Q&A-11 provides that an employer with an "essential" designation "may be considered to have a partial suspension of operations if, under the facts and circumstances, more than a nominal portion of its business operations are suspended by a governmental order," and Q&A-17's Example 4 (930) applies the same rule to a hospital whose emergency department the order treated as "essential" and whose elective procedures it closed. The United States told the District Court that whether a business is "essential or non-essential will often vary from jurisdiction to jurisdiction" and is determined "by looking to the governmental order affecting [the employer's] operations."²⁴⁴ The orders affecting this industry's operations are these: where a State designated worship "essential," it did so on conditions. Colorado named "Houses of Worship" among critical businesses while capping them until December 7, 2020; Tennessee provided that "nothing in this Order mandates closure of a place of worship" while capping gatherings at ten and closing every school; Texas treated religious services as essential only if "conducted consistent with" federal guidance; North Carolina named "Religious entities" among covered entities and made religious facilities "subject to" its mass-gathering limits; West Virginia designated "religious gatherings" essential while capping every other gathering at ten; Ohio permitted religious gatherings under its exemptions while covering "any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function it performs, or its corporate or entity structure." No order designated a parochial school, a religious-education class, a gala, a rental, a hospital visit or a prison ministry "essential"; every one of those functions was closed or capped in terms. An employer whose sanctuary was open at 25 percent and whose school, hall, kitchen dining room and visitation ministry were closed was not an employer "all of" whose operations an order allowed to remain open. The designation the Service invokes is the order's own word, and the order's own words capped what it designated.²⁴⁵

The statute names the order's subject, "commerce, travel, or group meetings," and specifies that the meetings limited may be "for commercial, social, religious, or other purposes." It does not name an addressee. The Notice's own Q&A-10 lists, as a governmental order, "[a] State's emergency proclamation that residents must shelter in place for a specified period," an order addressed to residents and to no business. The stay-at-home orders of this record were not orders addressed to the public alone: New York's cancelled "Non-essential gatherings of individuals of any size for any reason"; North Carolina's named "religious and secular not-for-profit organizations, including food banks" among covered entities; Wisconsin's named "Weddings, funerals, and religious entities" and confined religious gatherings to fewer than ten per room; Ohio's covered every "non-profit" entity and confined charitable food to "a pick-up and takeaway basis"; Vermont's ordered "all businesses and not-for-profit entities in the state" to telecommute; Georgia's provided that no "non-profit corporation, organization" shall allow more than ten persons to gather; Iowa's prohibited "Social, community, spiritual, religious, recreational, leisure, and sporting gatherings and events of more than 10 people," including "fundraisers"; Dallas, Denton, Harris and Fort Bend Counties confined worship to "video and teleconference"; and Washington's prohibited "all people in Washington State from leaving their homes or participating in social, spiritual and recreational gatherings of any kind regardless of the number of participants." The United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party." A reading under which an order addressed to a congregation's members is not an order limiting the congregation's group meetings is a reading of a statute Congress did not write. The statute says nothing of the addressee, and the orders of this record named this industry in terms.²⁴⁷

Q&A-15's own second paragraph provides that "if the closure of the workplace causes the employer to suspend business operations for certain purposes, but not others, it may be considered to have a partial suspension of operations due to the governmental order," and its Example 2 finds a partial suspension where the employer "moves to an online format" and continues to serve some of the people it serves remotely but its workplace "is central to its operations, and the business operations cannot continue in a comparable manner." Q&A-16(3) provides that where "the employer's physical work space is so critical to its trade or business operations that tasks central to the trade or business's operations are unable to be performed remotely, then this factor alone indicates that the employer is not able to continue comparable operations." The United States told the District Court that an employer is partially suspended "if it was required to suspend certain operations for certain purposes" even where comparable operations continue. A house of worship is a physical work space; a sacrament, a funeral, a wedding, a baptism, a communion rite, a choir, a school classroom, a child-care room, a soup kitchen, a shelter bed, a hospital visit, a prison chaplaincy, a gala and a hall rental are tasks central to the operation that cannot be performed remotely. A streamed service is not a comparable operation to a congregation in a room; the Pew Research Center's finding that 12 percent of regular attenders' congregations were "open and operating normally" in March 2021, one year into the streaming era, measures the difference. The Service's ground applies the telework rule written for a software company to an operation whose entire purpose is the physical assembly of people, and the Notice's own factors point the other way.²⁴⁹

Q&A-13 addresses an employer that "responds to the lack of demand by suspending some or all of its operations"; its example is a repair shop that "is not required to close its locations or suspend its operations" and closes because customers stopped coming. It does not address an employer whose own gathering an order capped. A congregation's members are not customers whose demand for a product fell; they are the participants in the "group meetings (for ... religious ... purposes)" the statute names and the orders limited. When New Jersey capped religious gatherings at 25 percent or one hundred fifty, the cap operated on the congregation's operation, not on its members' demand; when Kentucky prohibited "all mass gatherings" including "faith-based" events, the prohibition operated on the gathering; when Hawaii capped social gatherings at ten indoors, the cap operated on the gathering. The Service's ground confuses the object of the order with its addressee. The exclusion in the form the Service invokes, extended to every employer and to any "reduction in demand," first appeared in the Notice on March 1, 2021; as posted on April 29, 2020, the FAQ confined it to "an essential business that is not required to close its physical locations or otherwise suspend its operations" and to a suspension claimed "for the sole reason" of the customers' order, and it said nothing about demand.²⁵¹ And where the orders did operate on counterparties (schools, hospitals, prisons, venues, transit), the United States has told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party." The members of a congregation are not its customers, and the orders that limited their meetings limited the congregation's operation in the statute's own words.²⁵²

Nothing in the State orders inventoried above was voluntary. Connecticut's Executive Order 7D prohibited gatherings of fifty "as well as religious, spiritual or worship gatherings of such size"; New Jersey's Executive Order 107 cancelled gatherings and made violation an offense; Kentucky's order prohibited "all mass gatherings"; Ohio's order stayed every person home under the Director's statutory authority; California's Blueprint prohibited indoor worship in Tier 1 counties; New York's Executive Order 202.68 fixed the cluster caps; Dallas County's face-covering order of August 11, 2021 carried a fine "not to exceed $1,000 for each violation"; Chicago's order of August 20, 2021 made closure the sanction for a business that failed to enforce it. Q&A-10 provides that whether an instrument is a governmental order "is determined without regard to the level of enforcement." The litigation record settles the point: congregations do not sue to enjoin recommendations. Roman Catholic Diocese of Brooklyn v. Cuomo, South Bay United Pentecostal Church v. Newsom, Calvary Chapel Dayton Valley v. Sisolak, Tandon v. Newsom, Capitol Hill Baptist Church v. Bowser and Robinson v. Murphy exist because governmental orders limiting religious gatherings existed and were enforced, and the Supreme Court of Wisconsin's decision in Wisconsin Legislature v. Palm exists because a statewide order confining religious gatherings to fewer than ten per room had force enough for the Legislature to sue over it. The orders of this record fixed the day on which every service, class, event and rental could resume and the terms on which it could, and a congregation that reopened on the orders' own schedule reopened under the orders' own caps, distancing rules and face-covering requirements; in every quarter of the period an order was in force that compelled a modification of the operation on days within it, and none of those modifications was voluntary. The Service's word for an order-compelled cap is "voluntary"; the orders' own enforcement clauses answer it.²⁵⁴

Q&A-14 reaches, by its own terms, only a suspension "not due to a governmental order," and the United States and the District Court have defined the excluded employer as one "not being ordered to do so" and one that "chooses not to" continue comparable operations.²⁵⁵ No employer in this record answered that description in any of the six quarters. The reopening orders permitted operation only on conditions with the force of law: in Texas, GA-14, GA-28, GA-29 and GA-32, enforced by Government Code § 418.173; in the other principal States, the operating-condition clauses quoted in the standing-duties subsection above.²⁵⁶ The standing statutes commanded the same conduct independently: in Texas, Health and Safety Code §§ 81.002 and 81.082 to 81.087 and Labor Code § 411.103; elsewhere, the control acts, order-violation offenses and workplace-safety duties set out in the standing-duties subsection; and everywhere the general duty clause, 29 U.S.C. § 654(a)(1), enforced by citation from September 2020.²⁵⁷ The legislatures of Texas, Kentucky and Michigan then fixed the standard of care as compliance with governmental standards, guidance, orders and protocols, Texas for every action commenced on or after March 13, 2020; where a legislature enacted no such shield, the standing duties and the orders' own conditions remained the standard of care.²⁵⁸ The safe-workplace statutes had no COVID-19 content until the health authorities said what a safe sanctuary, classroom, kitchen and office required; the measures were taken because those directives defined the duty and would not have been taken without them. "Due to" is but-for causation (Tri-State at 17-19), and the causation here runs from the command to the measure without an intervening choice; the hospital in Tri-State "was required to make these changes to ensure compliance with the Proclamation," and the court held the changes caused by it (Tri-State at 20-21). The Notice's own words confirm it: a modification "required by a governmental order as a condition of reopening a physical space for business or service to the public" is a partial suspension due to the order (Q&A-18, at 930).²⁵⁹ A statute that commands conduct is an order from an appropriate governmental authority whoever issued it, and the Service's premise, that no command reached the employer, fails wherever one did; in this record one did in every State and every quarter.

The United States has represented to two federal courts that the figure "isn't an eligibility requirement," that it "exists only as a safe harbor," that it is "a safe harbor rather than a hard floor," that "the IRS did not say that a taxpayer cannot qualify for the ERC if they have been impacted less than 10 percent," and that "no facts or data" were needed to fix it; the District Court held that it "is not an exclusionary cut-off point"; and the Tri-State court held that the Notice "provides a method for the test to be met not as a requirement to meet the test" and that reading a ten percent requirement into the statute "would read requirements into the statute that do not exist." The Service is bound to the safe harbor and may not apply it as a floor. The 10 percent rules the Service applies first appeared in the Notice on March 1, 2021; the phrase "more than a nominal portion" first appeared in the FAQs on June 19, 2020, without a percentage; and as posted on April 29, 2020 the FAQs contained neither the phrase nor any percentage.²⁶¹ The statute's word is "partially," and Tri-State holds that a portion is a portion and that "more than nominal" does not mean "significant." For this industry the United States' safe harbor is also met on its own terms: worship, education, events, food and shelter programs, visitation and rentals are not a tenth of a congregation's or a nonprofit's operation; they are the operation. The hours of service of clergy, educators, cooks, case managers and program staff in the suspended functions, measured against the same quarter of 2019 as Q&A-11 directs, exceed 10 percent of total hours in every quarter for every employer whose sanctuary was capped, whose school was closed or whose events were cancelled; the revenue lines of events, rentals and tuition exceed 10 percent of gross receipts for every nonprofit that runs them; and Q&A-18 itself provides that "occupancy restrictions ... may result in an actual, and more than nominal, reduction" of the ability to serve. The ten percent figure is the United States' safe harbor, and the showing for this industry exceeds it many times over.²⁶²

Three points. First, the modifications compelled in this industry were not masks and one-way aisles, and even the face-covering orders were not requirements about an article of clothing: each was one of the workplace infection-prevention and exposure-control requirements an instrument imposed, enforced by fines, closure or refusal of entry, and accompanied, where the instrument so provided, by screening, distancing, capacity limits, quarantine of exposed persons, written plans and vaccination-or-testing conditions. They were closures, fixed-number and percentage caps, prohibitions on singing, cohort and ratio rules for classrooms, conversion of kitchens to take-away, visitor bans, permit revocations, vaccination-proof conditions on venues, and, in 2021, face-covering, quarantine and staff-vaccination orders on every parochial school and child-care center. Q&A-18's own first paragraph lists "limiting occupancy to provide for social distancing" and "changing the format of service" among modifications "required by a governmental order as a condition of reopening a physical space for business or service to the public," and its second paragraph provides that "occupancy restrictions at a restaurant with indoor dining service may result in an actual, and more than nominal, reduction of the restaurant's ability to service customers"; a sanctuary at 25 percent is an occupancy restriction. Q&A-19 provides that an employer that reduces its operating hours by order "is considered to have partially suspended its operations." Second, the sentence on masks is a categorical statement of fact, stated as a rule, without a record, and it is a late one: it first appeared in the Notice on March 1, 2021; the FAQ of June 19, 2020 added "more than a nominal effect" only for the case in which all of an employer's operations continue; and the FAQ as posted on April 29, 2020 answered "Yes" without qualification for a workplace closed for some purposes and open for others.²⁶⁴ The United States told the District Court that "employees having to wear face masks may impact business operations" and that orders "directed at business operations (operational hours, space, etc.) would also be considered," and the Tri-State court held that every protocol an order compelled was a suspension the order caused. The Notice's own rule is that the question "is based on the facts and circumstances," and for this industry the facts are the orders: an exposure-control order that masks a choir, a communion rite, a children's classroom or a food line changes what each of those operations is, and the Notice's own first paragraph lists face-covering requirements among the modifications an order compels. Third, for the third quarter of 2021 the instruments include gathering caps (Hawaii; Savannah; Honolulu), event closures (Honolulu), vaccination-proof conditions (New Orleans; San Francisco), eviction moratoria, visitation conditions and vaccination mandates, none of which is a mask. The Notice's categorical sentence on masks does not describe the modifications this industry was ordered to make, and the Notice's own preceding paragraphs treat those modifications as suspensions.²⁶⁵

The Notice's sentence carries its own limit, and this analysis relies on no declaration that fails it: a declaration is excluded only where it "does not limit commerce, travel, or group meetings in any manner." Where a declaration did limit them, it is an order by the Notice's own terms. Iowa's Proclamation of Disaster Emergency of March 17, 2020 prohibited, in § 3(E), "Social, community, spiritual, religious, recreational, leisure, and sporting gatherings and events of more than 10 people"; Hawaii's Emergency Proclamation of August 5, 2021 and Executive Order 21-05 capped gatherings at ten and twenty-five; Texas's GA orders issue under the disaster declaration and prescribe operative limits; Georgia's Executive Order 04.02.20.01 issues under the public-health emergency and prohibits gatherings of more than ten. The emergency declarations cited in the quarters section for the third quarter of 2021 are cited as the source of authority for the operative orders issued under them, and each operative order is cited by its own exhibit identifier. The State emergencies inventoried in subpart B-9 of the third quarter of 2021 are cited because each kept operative instruments alive or carried operative limits of its own (Texas's GA-38; Georgia's Executive Order 08.19.21.03; Hawaii's Executive Order 21-05; Arizona's Executive Order 2021-16), not as bare declarations. The ground answers an argument this analysis does not make; the instruments it cites limit commerce, travel and group meetings in terms.²⁶⁷

Q&A-12 provides that an employer may be suspended where "the business's suppliers are unable to make deliveries of critical goods or materials due to a governmental order that causes the supplier to suspend its operations"; the United States told the Ninth Circuit that the rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier" and that "a business may be suspended 'due to' a government order addressing a third party." The counterparties of this industry were not merely disrupted; they were closed or conditioned by order in terms. Every school was closed by order; every hospital, nursing home and prison barred visitors by order; every venue was closed or capped by order; every conveyance was placed under the federal airborne-transmission control; every court limited its docket by order. This analysis cites those orders under the statute directly, as orders "limiting commerce, travel, or group meetings" on which the employer's operation depends, and cites Q&A-12 only as the Notice's confirmation that an order addressed to a third party suffices. AM 2023-005 "may not be used or cited as precedent," addresses supply-chain scenarios in a goods-producing setting that does not describe this industry, and cannot narrow either the Notice that binds the Service or the statute that binds the court. The orders on this industry's counterparties were orders of closure and condition, and the United States has said the supplier rule needs no more.²⁶⁹

The answer is in the interconnected-economy section and is restated here in four sentences. The statute asks whether the operation "is fully or partially suspended during the calendar quarter due to orders"; the phrase "during the calendar quarter" modifies "suspended," and Congress did not write "orders in effect during the quarter." The United States agreed in Tri-State that a suspension is "[t]he act of temporarily delaying, interrupting, or terminating something," and a compelled delay in restoring an operation an order dismantled is a suspension due to that order on the but-for test the court adopted. The Notice's own Q&A-22 makes a suspension "during a portion of a calendar quarter" a suspension for the whole quarter, and its Q&A-16(4) treats the "significant delay" of a compelled transition as "a partial suspension during that transition period," offering the two-week figure only "for example." And for every quarter in issue, including the third quarter of 2021, orders were in force on days within the quarter that themselves compelled modifications of this industry's functions, so that the continuing suspension is an additional ground and not the only one. The Service's phrase for the continuing suspension describes the statute's own subject: a delay is a suspension, and the orders caused it.²⁷¹

The statute's two prongs are joined by "or." The Tri-State court held the prongs independent "by Defendant's admission," finding that "even Defendant's own argument is contradictory" when the United States argued that the gross-receipts prong narrowed the suspension prong; and the United States told the District Court that an employer "can demonstrate eligibility if it can show, under the facts and circumstances, it was partially suspended," a route it described as independent of the gross-receipts test. This industry's receipts are, moreover, the wrong measure of its operation: contributions continued by mail and online while the sanctuary was capped, the school closed and the gala cancelled, and the Notice's own Q&A-11 measures the suspended portion by hours of service as well as by receipts. A congregation whose giving held while its every function was capped by order was partially suspended; the statute does not ask whether it was also poorer. Gross receipts are the other prong, and the Service may not use one prong to erase the other.²⁷³

Every instrument this analysis cites as an order is an executive order, a proclamation, a public health order, a directive, a rule, a regulation, an ordinance or a court order carrying a sanction: fines, closure, refusal of entry, loss of license, exclusion from a contract, removal from a conveyance; the few guidance documents it names are so labeled and are not relied on as orders. Q&A-10 provides that an instrument's character as an order "is determined without regard to the level of enforcement." Where a State issued a document labeled guidance and made compliance with it a condition of an order (New York's Interim Guidance for Religious and Funeral Services, which every place of worship was ordered to follow as "mandatory" standards; Massachusetts's "mandatory workplace safety rules" under which places of worship reopened on May 18, 2020; California's Blueprint tier chart, whose places-of-worship row the Supreme Court enjoined in part on February 5, 2021), the document's mandatory character, fixed by the order that incorporated it, is what matters, and this analysis cites the incorporating order. Where a document was an advisory (the Puget Sound health officers' recommendation of July 26, 2021; the New Orleans advisory of July 23, 2021; the Northern Virginia health directors' recommendation of August 3, 2021), this analysis has labeled it and does not rely on it. The Service, which has told two courts that the Notice is "merely guidance" and applies it as law, is not positioned to say that a State's mandatory standards, enforced by order, are guidance and not law. The instruments this analysis cites are orders by their own terms and by their sanctions, and it relies on no advisory as an order.²⁷⁵

Agreed, and applied. In its ordinary sense an order is a command issued by a person or body with authority to issue it, carrying a legal consequence for its addressee. Every instrument this analysis cites is such a command: a Governor's executive order under an emergency statute, a health officer's order under a public-health code, a county judge's order under a disaster act, a federal agency's order under a statute and regulation, a court's order under its inherent and rule-based authority, a tribal council's resolution under tribal law. The ordinary meaning excludes what Q&A-10's Example 2 excludes, a mayor's press-conference statement, and this analysis cites none. The ordinary meaning includes what the statute's own parenthetical includes, orders limiting group meetings "for ... religious ... purposes," and the instruments that limited them here were the Governors' and health officers' orders whose texts are quoted in the layers and quarters sections. The District Court read "appropriate" as "fitting," the authority "having jurisdiction over an employer's operations"; each exhibit in the Library names its issuer and the jurisdiction the issuer held. The ordinary meaning of "order" is the meaning this analysis applies, and every instrument it cites meets it.²⁷⁷