An appeals court needs to step in to limit Illinois Gov. JB Pritzker's ability to restrict religious services in the name of public health again, regardless of the governor's decision to change the rules moments before a potentially momentous Supreme Court action, a lawyer for two Chicago area Christian churches have asserted in court.
The Illinois Attorney General’s Office, however, claimed the governor has never shown any “animus” toward religious freedom, but believes the Constitution does not restrict his ability under the law to respond to the COVID-19 pandemic to save lives.
On June 12, a three-judge panel from the U.S. Seventh Circuit Court of Appeals heard arguments over the churches’ attempt to secure a court order barring Pritzker from again using his emergency powers to restrict religious gatherings, regardless of the status of the pandemic.
During 40 minutes of oral arguments Friday, Seventh Circuit judges David Hamilton, Frank Easterbrook and Michael Kanne grappled with attorneys for the two churches and for the governor over key legal questions in the dispute. However, the judges appeared to reserve most of the hard questioning for Illinois Assistant Attorney General Priyaka Gupta, arguing on behalf of Pritzker.
Judges, for instance, asked Gupta to compare and explain the restrictions on worship services imposed by Pritzker to the governor’s seeming allowance for social services, such as food distribution, to continue at churches without restriction, as well as the governor’s seeming hearty endorsement of mass gatherings and demonstrations in the name of civil rights.
Gupta did not directly address the recent massive demonstrations demanding an end to system racism against black people, which were sparked by the slaying of George Floyd at the hands of police in Minneapolis at the end of May, nor the governor's support for the mass gatherings of tens of thousands of people, despite his dire warnings of disaster should church services reconvene.
However, she acknowledged there is "risk in gathering in large groups."
Judge Kanne also explicitly asked Gupta if Pritzker and the state would commit to an agreement under which the state would not again impose stringent limits on in-person worship services without first returning to court to seek explicit permission to do so.
Gupta said the state could not agree to that, nor would she commit to guaranteeing Pritzker would not also use his power to again unilaterally order churches all but closed for in-person worship services, should COVID-19 cases spike in the future.
Rather, Gupta continued to argue the governor has the power under the law and within the U.S. Constitution to limit the size of all gatherings during times of infectious disease pandemic, even if those gatherings may otherwise be protected by the First Amendment’s guarantee of free exercise of religion.
The case landed before the Seventh Circuit last month, after the churches – Elim Romanian Pentecostal Church, of Chicago, and Logos Baptist Ministries, of Niles – appealed the decision of a federal district judge, denying their request for an injunction blocking Pritzker from enforcing executive orders that all but prohibited church congregations and other religious groups from gathering for in-person worship and prayer services.
Pritzker had issued executive orders in March, barring all Illinois residents, including churchgoers, from gathering in groups of more than 10 people.
When Pritzker extended those orders into May, the churches filed suit, asserting Pritzker’s orders violated their rights under the Constitution and state and federal religious freedom laws.
The Elim congregation has also asserted it was targeted by the city of Chicago for enforcement actions, including fines and threats to close the church. Communications received by the church repeatedly cited Pritzker’s orders to justify the threats and enforcement actions.
After a federal judge sided with Pritzker in denying the churches’ injunction request, the churches appealed to the Seventh Circuit, and also to the U.S. Supreme Court.
However, the same day Pritzker had been ordered to reply to the churches’ request to the high court for an emergency order against the state, Pritzker’s Illinois Department of Public Health announced the governor had lifted restrictions on religious gatherings, and replaced it with public health “guidance” for worship services.
The Supreme Court cited that guidance to deny the churches’ emergency petition and send the case back to the Seventh Circuit.
The churches, however, said Pritzker’s sudden about face should not end the matter.
In oral arguments, attorney Horatio G. Mihet, of Liberty Counsel, of Orlando, Fla., representing the churches, repeatedly noted Pritzker has continued to defend the orders and his authority to issue them. And, Mihet said, the governor has never indicated he could not simply reimpose the same restrictions, should he determine public health data requires such a response.
Judges questioned Mihet on whether Pritzker’s orders actually unconstitutionally target religious activity.
They noted other judges, including U.S. Supreme Court Chief Justice John Roberts, in a decision involving a similar case out of California, believe churches could be ordered closed, so long as the governors also close similar activities and gathering places, including theaters and concert halls.
Mihet, however, argued the proper comparison was to different businesses, like warehouses and supermarkets. The attorney said those businesses routinely bring together hundreds of people indoors for hours at a time, while working to mitigate the risk posed by COVID-19, by implementing measures to increase social distance and sanitation, and restrict and channel movement within the building.
Mihet said the governor’s orders never gave churches the same flexibility.
“There is no reason why not to even give churches a chance to implement the same measures,” Mihet said.
Further, Mihet noted the governor’s own orders also drew distinction between activities pursued by churches. The orders, he said, place no limit on the size of congregational activities related to social and charitable service.
But as soon as those gatherings would turn into a worship service, they would become illegal, Mihet said.
Mihet said the novel coronavirus that causes COVID-19 “doesn’t care about intentions” behind a particular gathering.
In response, Gupta argued the governor’s decisions have been rooted in “data” and evolving knowledge concerning how COVID-19 spreads within the community.
She said, based on what is known now concerning the transmission of COVID-19 coronavirus, “this level of restriction would not be necessary, even if the state is hit with a second wave.”
Judges, however, questioned whether that would be sufficient to pass the tests laid out by the Supreme Court to measure whether a state action infringes on religious freedom and other constitutional rights.
Judge Easterbrook said the governor’s reliance on the changing nature of public health data to justify his decisions “is what worries” him about the state’s stance in the case.
“I’m not worried about what’s necessary, or what the governor is likely to conclude. If I understand the Supreme Court’s test it’s something like whether it is absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur…” Easterbrook said.
“I wonder how it is absolutely clear that it can’t recur if the governor is reserving his right to change the rule when the data change?”
Gupta said the “mere possibility” that the governor could reimpose the strict restrictions on churches should not be treated the same as a “reasonable expectation” that he would do so.
Easterbrook, however, said, in such cases, the burden does not fall on the plaintiffs to show a “reasonable expectation” that the governor may reimpose the challenged restrictions. Rather, the burden falls to the state to prove otherwise.
Later in the session, Judge Kanne further questioned the governor’s and the state’s repeated citations to science and “dire” COVID-19 data.
“You speak as if there’s a universal findings with regard to the medical evidence in this thing, I don’t think that’s the case is it?” Kanne asked.
Gupta conceded scientists and state officials are still learning about the transmission of COVID-19. But she said it is “undisputed” that the virus is transmitted by droplets, which are particularly spread by speaking or singing, activities routine to worship services.
She said there are “throughout the world numerous accounts” of “these types of gatherings” contributing to the spread of the virus.
The judges have not yet ruled on the case.
However, in May, the same three judges refused the churches’ request for an emergency injunction against the governor. At that time, the judges also sided with Pritzker on the question of whether his religious service restrictions could be compared to concert halls and theaters, rather than big box retail stores.