Two Chicago area churches have taken their plea to the nation’s highest legal authority, asking the U.S. Supreme Court to step in to block Gov. JB Pritzker’s orders restricting religious worship services – orders the governor says are needed to combat the COVID-19 pandemic.
On May 28, attorneys for Elim Romanian Pentecostal Church, of Chicago, and Logos Baptist Ministries, of Niles, filed an emergency petition to the Supreme Court.
Supreme Court Associate Justice Brett Kavanaugh, the justice assigned by the court to initially handle and respond to such petitions, then gave Pritzker until 8 p.m. on May 28 to reply to the petition.
The full court would need to decide whether to accept the case and hear further arguments.
The petition from the churches comes after the U.S. Seventh Circuit Court of Appeals denied a request from the churches for an emergency injunction, blocking Pritzker from enforcing his executive orders forbidding churches from holding indoor worship services that include more than 10 participants.
The churches had appealed to the Seventh Circuit, in Chicago, after U.S. District Judge Robert Gettleman upheld Pritzker’s orders as constitutional.
The churches, however, have maintained their position that Pritzker’s orders violate their religious rights under the First Amendment, as well as various state and federal religious freedom laws.
The congregations “do not seek to undermine Illinois’ unquestionable interest in protecting its citizenry, or to be wholly exempt from reasonable restrictions imposed for the good of their congregants and communities—whom they love,” they said in their petition.
“Rather, Churches are before this Court to vindicate their cherished liberties, and to restrain the troubling transgression of their free exercise wrought by the imposition of Governor Pritzker’s arbitrary and discriminatory executive orders, which inflict irreparable harm on Churches with each passing Sunday that their worship services are threatened by criminal and regulatory enforcement actions.”
The filing comes as the latest step in a legal battle that was joined in early May after Pritzker announced he would extend his statewide disaster declaration, in response to the COVID-19 pandemic. Pritzker has asserted the extension of the disaster declaration gives him the emergency authority under state law and the Illinois constitution to continue governing the state by executive order.
Those orders have included the statewide stay at home order, which has left most of Illinois’ businesses and social activities shut down for nearly three months, and earlier orders restricting gathering sizes to no more than 10 people.
In the stay at home order, known as Order 32, Pritzker divided businesses and activities into two categories: Essential and non-essential.
While the free exercise of religion was considered an “essential” activity, the governor refused to lift the 10-person cap for worship services.
To date, judges have rejected the churches’ attempt to compare themselves to businesses designated as “essential,” such as supermarkets and big box retail stores. Rather, the judges have said the churches are more like theaters, which remain closed under Order 32. By that comparison, the judges have ruled, Pritzker’s orders don’t target religious congregations directly, and can be considered “neutral.” They said this would allow the governor to find legal footing by claiming the state’s interests in protecting public health trump the rights of churches and churchgoers to meet together, particularly when they can still hold worship services outdoors or online.
Prtizker did not designate theaters as “essential.”
Since beginning to hold in-person services, apparently in defiance of Pritzker’s orders, the churches said they have been the target of enforcement actions under Pritzker’s orders, for holding services without permission from the governor.
The Elim congregation noted on May 23, the city of Chicago has issued criminal citations against the church, and has designated the church a “public health nuisance,” while threatening further action against them, including potentially closing the church.
While Pritzker has asserted in-person, indoor worship services increase the risk of community spread of the novel coronavirus that causes COVID-19, the churches said the governor has not yet demonstrated why churches should be treated differently than factories, stores, warehouses and other “essential” settings in which large numbers of people are currently allowed to gather indoors.
While their requests for a temporary restraining order have been denied by both Judge Gettleman and the Seventh Circuit, the churches said the continuing and mounting enforcement efforts against them have prompted them to go beyond the Seventh Circuit, and appeal to the Supreme Court.
The churches noted similar orders forbidding in-person worship services have been struck down as unconstitutional in other states, including in decisions by the U.S. Fifth Circuit Court of Appeals in New Orleans and Sixth Circuit court in Cincinnati.
Judges in the Seventh Circuit and the U.S. Ninth Circuit Court of Appeals, in San Francisco, have rejected challenges by churches to such worship service restrictions imposed by the governors of Illinois and California.
The churches said the split between the federal appeals courts makes the matter ready for the Supreme Court.
The churches said they believe four Supreme Court justices would agree the case should be heard, and at least five justices would side with them on the constitutional and legal questions at play.
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.