Two Chicago area Christian congregations have asked a federal appeals court to overturn Illinois Gov. JB Pritzker’s restrictions on religious services during the COVID-19 pandemic, arguing Pritzker’s impose unconstitutional limits on churches that he has placed on no other activities or organizations deemed “essential” under his emergency executive orders.
On May 26, attorneys for the Romanian American churches – Elim Romanian Pentecostal Church in Chicago and Logos Baptist Ministries in Niles – filed a brief with the U.S. Seventh Circuit Court of Appeals in Chicago.
The brief comes as the churches say they remain the targets of Pritzker and Chicago City Hall, who they say have threatened them with police action and citations, potentially up to closure of the church buildings themselves.
“With each passing Sunday, Churches are suffering under the yoke of the Governor’s unconstitutional Orders prohibiting Churches from exercising their sincerely held religious beliefs of assembling themselves together to worship God,” the churches wrote in their appellate brief.
They argue that, while Pritzker has designated free exercise of religion an “essential” activity and churches essential organizations under his so-called stay at home orders, the governor has unconstitutionally singled out worship services for assembly size limitations placed on no other “essential” businesses, such as supermarkets or big box retail stores.
Further, they noted, this targeted shutdown of in-person worship services conflicts with Pritzker’s decision to place no similar gathering limitations on other church functions, including gatherings for the purposes of food distribution and other charitable endeavors.
Pritzker, they argued, has “considered nothing but a complete prohibition beyond the 10-person limit for religious worship, while expansively exempting numerous other ‘Essential Activities.’
“The Governor has not and cannot state why or how crowds and masses of persons at a warehouse or supercenter store are any less ‘dangerous’ to public health than a responsibly distanced and sanitized worship service, yet the Governor exempted the non-religious Essential Activities from the 10-person limit unique to worship services,” they argued in the brief.
The churches filed suit in early May in the wake of Pritzker’s decision to extend his stay at home order until the end of the month. The governor has indicated he intends to extend the order again, though with modifications under his so-called Restore Illinois plan. That plan, which Pritzker said has been drafted in accord with “data and science,” is meant to guide the reopening of Illinois’ economy and social networks as the state continues to grapple with the spread of the novel coronavirus that causes COVID-19.
Compared to all other U.S. states, Illinois is an outlier. While some states never imposed a society-wide lockdown on business and social activities, other states have either fully reopened or are moving more quickly than Illinois to reopen their societies.
While unemployment has soared and businesses have remained shuttered through the months of April and May, Pritzker has also been targeted by a rising tide of resistance from churches and churchgoers, who argue the governor’s orders restricting worship services are unconstitutional infringements on their religious rights.
Pritzker has eased restrictions in recent days, indicating he would support allowing outdoor worship services, including those conducted in-person. He has also invited congregations to submit ideas on how to reopen worship services without endangering public health.
However, churches suing Pritzker over his executive orders assert the governor’s orders limiting the size of religious gatherings must be tossed, completely.
After a church in Lena, in northwest Illinois, sued the governor, they were joined in court by the separate legal action from the Elim and Logos congregations.
In both cases, federal district judges upheld the governor’s restrictions, and denied the churches’ requests for orders blocking Pritzker’s orders.
In both cases, the federal district judges specifically rejected the churches’ comparisons between a worship service and a shopping trip. They said a more apt comparison would be between a church service and a trip to the theater or a stadium. The judges noted those remained closed. However, theaters and similar businesses were not designated as "essential" by Pritzker's COVID-19 emergency order.
That view appeared to be supported by a three-judge panel of the Seventh Circuit, which denied a request from the Elim and Logos churches for a rare appellate injunction, blocking the governor from enforcing his orders against the churches while their appeals continued.
Despite their losses in court thus far, the churches have continued meeting, in apparent violation of Pritzker’s orders. They said they have imposed strict social distancing rules on their services, separating congregants throughout their sanctuaries, and turning away anyone with a body temperature above 99.5 degrees Fahrenheit and “anyone who arrived after the church reached its self-limited capacity of 120 seats out of an available 750,” or 15%. They said they also hired industrial cleaners to deep clean and disinfect the church buildings.
The churches said they “strictly complied with or surpassed each of the 10 safety initiatives” they said the state considers “applicable to other ‘Essential’ entities that accommodate more than 10 people.”
Despite these actions, the churches said they have been consistently threatened with enforcement actions. They said the Chicago Public Health Department threatened Elim’s pastor with “criminal sanctions and closure of his church” under Pritzker’s executive orders.
They said on May 17, the churches’ pastors each received “two Disorderly Conduct citations” for violating Pritzker’s orders.
The churches say they are continuing to ask the courts to undo Pritzker’s orders, saying the lower court judges ruled incorrectly.
They argue the federal district judges’ decisions misapply Supreme Court precedent, while ignoring other decisions from other federal courts elsewhere in the country.
They particularly pointed to decisions from the Sixth Circuit Court of Appeals in Cincinnati, which tossed out religious gathering restrictions imposed in Kentucky, and from a federal judge in North Carolina, who also ruled that state’s religious restrictions, which were very similar to those imposed in Illinois, were unconstitutional.
In that case, the judge noted North Carolina’s orders were not “neutral” under the law, and unconstitutionally singled out religious worship services for limits.
The judge in that case said the orders “represent precisely the sort of ‘subtle departures from neutrality’ that the Free Exercise Clause is designed to prevent.”
“Who decides whether a religious organization or group of worshipers correctly determined that their religious beliefs dictated the need to have more than 10 people inside to worship?” the judge wrote. “Under [the orders], the answer is a sheriff or another local law enforcement official. This court has grave concerns about that answer comports with the Free Exercise Clause.”
They noted similar orders have been entered by federal judges in Kentucky and Kansas.
In Illinois, they argued, Pritzker’s orders don’t pass muster under those same constitutional tests.
“Even in a time of crisis or disease, the First Amendment does not evaporate,” the churches wrote.
“There can be no question that the Orders, on their face and as applied, impose direct burdens on Churches’ assembled worship in conformance with their sincerely held religious beliefs,
the churches wrote. “… Governor Pritzker, the police, and public health officials, all under the authority of the Orders, have threatened and imposed criminal sanctions, substantially burdening Churches’ religious exercise, and triggering First Amendment protections.”
The churches asked the appeals court to overturn the decision of the Chicago federal judge, and return the case to him with instructions to issue an injunction blocking Pritzker from enforcing his orders. They also asked the court, again, to issue an injunction blocking enforcement of the COVID orders against churches, until their appeal can be completed.
The churches are represented in the action by attorney Roger K. Gannam and others from Liberty Counsel, of Orlando, Fla., and by attorneys John W. Mauck and Sorin A. Leahu, of Mauck & Baker LLC, of Chicago.