A federal appeals panel has ruled Illinois Gov. JB Pritzker has the power to close down in-person worship services at churches in response to the COVID-19 pandemic without violating the First Amendment’s bar on prohibiting the free exercise of religion.
On June 16, a three-judge panel of the U.S. Seventh Circuit Court of Appeals sided with Pritzker and the state of Illinois in the legal challenge to the governor’s authority brought by two Chicago area churches.
The ruling comes four days after oral arguments, in which the judges spent a great amount of time questioning a lawyer for the state concerning how Pritzker had barred worship services, and whether he could simply choose to do so again, should the COVID-19 outbreak worsen again.
In the new Seventh Circuit opinion, however, the judges said the governor’s actions did not discriminate against religion. Actually, they said, the governor’s decision to close down in-person worship services larger than 10 people discriminated in favor of religion.
The opinion was authored by Seventh Circuit Judge Frank Easterbrook, with circuit judges David Hamilton and Michael Kanne concurring.
“While all theaters and concert halls in Illinois have been closed since mid-March, sanctuaries and other houses of worship were open, though to smaller gatherings,” Easterbrook wrote. “And under Executive Order 2020-38 all arrangements for worship are permitted while schools, theaters, and auditoriums remain closed. Illinois has not discriminated against religion and so has not violated the First Amendment…”
Since early May, attorneys for the two churches – Elim Romanian Pentecostal Church, of Chicago, and Logos Baptist Ministries, of Niles – have battled in court over the extent of Pritzker’s authority, and whether the governor had trampled the rights of congregations and religious adherents in shutting down worship services.
For nearly two months, Pritzker had forbidden worship services at churches and other houses of worship throughout the state, asserting gatherings in such settings served as fertile territory for the spread of the novel coronavirus that causes COVID-19.
The virus has killed more than 6,500 Illinois residents and sickened more than 134,000 of the state’s 12 million residents, according to official counts maintained by the Illinois Department of Public Health. The spread of the disease has slowed considerably since March and April, when the governor imposed stringent restrictions across the state. At the center of those actions were orders sharply limiting the number of people allowed to gather together, and forbidding Illinois residents from certain activities, deemed by the governor to be “non-essential.”
Initially, the list of activities deemed “essential” did not include worship services or church activities, other than charitable activities, such as food distribution.
However, in the face of lawsuits challenging his authority to limit religious exercise, Pritzker rewrote his orders, adding religious services as essential activities, but still subject to capacity limits of no more than 10 people at a time.
The lawsuits continued, however. And just before the state was required to file a brief with the U.S. Supreme Court defending the policy, the governor lifted restrictions on religious activity altogether, replacing them with public health “guidance,” intended to help churches conduct worship services safely.
However, Pritzker and the Illinois Attorney General’s Office have continued to maintain before all courts that the governor has the authority under state law to regulate and restrict all church activities in the name of public health, without violating Illinois residents’ constitutional rights.
The Elim and Logos congregations, however, have disputed that claim. They say Pritzker’s actions have illegally targeted churches and infringed on their rights. They assert, if churches are to be considered “essential,” they should be treated as other essential businesses and organizations, including supermarkets and warehouses.
If those large buildings that can often hold hundreds of people at a time can be assumed to be able to operate safely, then so should churches, the churches argued.
However, judges in Chicago’s federal courts have roundly rejected that comparison. Rather, they believe churches should be compared to theaters and concert halls. While those businesses are not considered essential, the judges have ruled the governor has not allowed them to reopen. Until the theaters are allowed to reopen, the judges said, the governor would be allowed to again prohibit in-person worship services above whatever capacity limits he establishes to combat the spread of COVID-19.
In their opinion, the appeals judges noted that reasoning was backed by U.S. Supreme Court Chief Justice John Roberts. In a finding on a similar case out of California, Roberts said “similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, move showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.”
In considering the case from Illinois, the U.S. Supreme Court determined Pritzker’s decision to swap outright regulations of worship services for public health guidelines effectively nullified the churches’ constitutional claims, as it removed the potentially unconstitutional policy.
But the Seventh Circuit judges disagreed with that determination, saying they believed Pritzker could just as easily reverse course in the future, retract the guidelines and reimpose religious gathering restrictions.
“The vital question,” they said, is whether Pritzker’s order “discriminates against religion.”
In this instance, the judges ruled, it does not.
In Illinois, Easterbrook said, the governor’s orders have allowed churches to continue meeting in small groups, in outdoor services or online.
While large church activities, such as feeding the needy, require large groups of people to gather, the judges said church worship services can be conducted in different ways – and the governor is within his power to require them to do so.
“Reducing the rate of transmission would not be much use if people starved or could not get medicine,” Easterbrook wrote. “That’s also why soup kitchens and housing for the homeless have been treated as essential. Those activities must be carried on in person, while concerts can be replaced by recorded music, movie-going by streaming video, and large in-person worship services by smaller gatherings, radio and TV worship services, drive-in worship services, and the Internet.
“Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways.”
The churches have been represented in the case by attorneys with Liberty Counsel, of Orlando, Fla.