Illinois Gov. JB Pritzker has moved to sidestep a showdown before the U.S. Supreme Court over his use of emergency executive power to restrict religious worship services amid the COVID-19 pandemic.
Facing a mounting number of lawsuits and risking a big, precedent-setting loss before the Supreme Court, Pritzker filed a brief before the high court on Thursday, declaring he intended to not renew his executive orders that, to this point, have been used to cap at 10 the number of people allowed to attend indoor, in-person services at churches and other houses of worship for more than two months.
Rather, Pritzker said his Illinois Department of Public Health had replaced his mandatory restrictions with “guidelines” to help churches find ways to host worship services while helping to slow the spread of the novel coronavirus that causes COVID-19.
Pritzker’s filing prompted attorneys for churches suing Pritzker to proclaim victory, while also calling on the Supreme Court to not allow Pritzker to skate.
“The unilateral actions of Gov. J.B. Pritzker is the classic example of tyranny,” said Mat Staver, founder and chairman of Liberty Counsel, which helped to represent the two Chicago area churches sparring with Pritzker before the Supreme Court.
“(Pritzker) knew he did not have authority to trample on the First Amendment rights of churches and houses of worship, but he did anyway and continued to do so until his case reached the U.S. Supreme Court. He cannot be trusted to obey the Constitution. The fact that he recently said that churches would never get above 50 people for at least 12 to 18 months, and now a few hours before he had to file with the Supreme Court he removes all restrictions, illustrates that he had no basis for the orders in the first place.
“The only thing that changed was he was dragged to the steps of the U.S. Supreme Court.”
Liberty Counsel said they would file further briefs with the high court, asking for a ruling declaring Pritzker’s orders, and similar orders filed by governors in other states, unconstitutional.
“This is a total and complete victory for people of faith,” declared Peter Breen, a former Illinois state lawmaker, who now serves as vice president and senior counsel for the Thomas More Society, of Chicago.
The Thomas More Society is representing several other churches suing Pritzker over his executive orders.
“Illinois’ governor and his administration abused the COVID-19 pandemic to stomp on the religious liberty of the people of Illinois,” Breen said. “By issuing guidelines only and not the previously announced mandatory restrictions, he has handed a complete victory to the churches in Illinois.”
Pritzker, through the Illinois Attorney General’s office, filed his brief shortly before an evening deadline set by U.S. Supreme Court Justice Brett Kavanaugh, who had ordered the governor to reply to an emergency petition filed with the high court by two Chicago area churches.
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, the churches argued.
In the stay at home order, Pritzker divided businesses and activities into two categories: Essential and non-essential.
While the free exercise of religion was considered an “essential” activity under Pritzker’s orders, the governor refused to lift the 10-person cap for worship services.
No similar size limitations have been applied to other businesses and activities considered “essential,” the churches said. And that, they said, makes Pritzker’s order unconstitutional religious discrimination.
To this point, judges in Chicago’s federal courts have rejected churches’ attempt to compare themselves to businesses designated as “essential,” such as supermarkets and big box retail stores. Rather, they compared churches to theaters or stadiums and other large gathering spots that remain closed.
However, those businesses and related activities have continued to be designated as “non-essential” under Pritzker’s orders.
After federal district judges and a three-judge panel of the U.S. Seventh Circuit Court of Appeals on three separate occasions denied requests from churches for restraining orders, the two Chicago area congregations – the Elim Romanian Pentecostal Church, of Chicago, and Logos Baptist Ministries, of Niles – appealed to the Supreme Court for help.
They urged the Supreme Court to take up their case, to end the legal confusion over how much power governors actually can wield over the religious worship services, under the First Amendment, even during a time of infectious disease pandemic.
The full court, however, is not likely to hear the case, however, after the Illinois Attorney General’s office said the churches’ claims have been short-circuited by the issuance of the IDPH guidelines, and the governor’s stated intent to not renew his worship service restrictions when his current order expires on May 29.
However, Pritzker and Attorney General Kwame Raoul continued to insist the governor can constitutionally shut down religious worship services under his emergency powers.
Pritzker’s order, Raoul argued, “protects the residents of Illinois from an ongoing crisis, and it does not, beyond all question, violate applicants’ rights to religious liberty.
“Applicants may avail themselves of many avenues of worship, including online, drive-in, and limited indoor in-person services.”
Pritzker and Raoul continued to maintain the governor’s order was “content neutral and does not target religious practices,” because the order “prohibits comparable secular conduct, such as gatherings at schools, theaters and concert halls.”
They said religious practices, such as singing, enhance infection risks, beyond other secular practices, such as shopping at a grocery store.
Even as the Elim and Logos congregations traded arguments with Pritzker at the Supreme Court, Pritzker was hit with yet another legal challenge, this time in Lake County Circuit Court by a group of churches.
Those churches, just as the Elim and Logos congregations, and a church in the community of Lena in northwest Illinois, claimed Pritzker’s orders illegally violated their religious freedoms.