Earlier this year, Chicago federal judges and the region’s federal appeals court granted Gov. JB Pritzker wins against legal challenges brought by churches that accused him of overstepping his authority and trampling their religious freedom rights when he initially sharply limited attendance at in-person worship services in the name of fighting COVID-19.
However, those defeats for the churches may yet prove short-lived, in light of recent decisions and actions taken by the U.S. Supreme Court, coming to the defense of religious adherents in the face of stringent governor-imposed COVID-related restrictions elsewhere.
“It would be fair to say the Supreme Court has put a stake in the heart of 10- and 25-person caps on church gatherings,” said attorney Martin Whittaker.
Martin Whittaker
| Thomas More Society
Whittaker serves as counsel with the Chicago-based Thomas More Society, which is representing a northwest Illinois church that was the first to challenge Pritzker’s authority under the Constitution this spring.
In coming days, the U.S. Supreme Court is expected to decide whether to take up an appeal filed by two other Chicago area churches. They are seeking a declaration from the court on the limits of Pritzker’s authority, and, by extension, that of other governors, to restrict church services and other religious exercise during a pandemic.
The appeal was filed by Elim Romanian Pentecostal Church, of Chicago, and Logos Baptist Ministries, of Niles. They are represented by attorneys from Liberty Counsel, of Orlando, Fla.
The Elim plaintiffs filed suit in May after Pritzker issued executive orders, citing his emergency powers under Illinois state law and the state’s so-called police power, restricting the size of gatherings permitted within churches and other houses of worship to no more than 10. At the time, Pritzker’s orders envisioned no future in which church gatherings in Illinois would exceed 50 people until a vaccine or some other effective treatment for COVID-19 could be developed.
That lawsuit followed a similar action brought by the Beloved Church, of Lena in Stephenson County, and its pastor, Stephen Cassell, represented by the Thomas More Society.
COMPARING CHURCHES
In the Elim lawsuit, the churches called the governor’s orders and pandemic response plan an “unconstitutional sham.”
“… The government does not have the authority to, with the stroke of a pen, declare churches and attendance at church to be ‘non-essential’ and impose criminal sanctions on Plaintiffs for failing to abide by that government-imposed prescription of orthodoxy,” the churches wrote. “The Constitution demands more. So, too, should this Court.”
Judges, however, took a different view.
In rulings from a federal district judge and the U.S. Seventh Circuit Court of Appeals, the judges said they believed the governor had the authority under prior U.S. Supreme Court precedent to violate constitutional rights during a time of emergency caused by a pandemic.
They rejected the churches’ comparisons between worship services and shopping at big box stores and other activities allowed as “essential” under Pritzker’s orders.
Rather, they said, church services were more comparable to theaters and concert halls, which were completely shut down under Pritzker’s orders.
That reasoning was used to deny the churches a preliminary injunction blocking enforcement of Pritzker’s orders against churches.
That prompted Elim to appeal to the Supreme Court.
However, following the appeal, Pritzker opted to lift restrictions on religious gatherings, explicitly designating the exercise of religion as an “essential” activity under his COVID restriction regime, and substituting public health “guidelines” for his prior limits on worship service attendance.
That switch was later cited by the Supreme Court when it issued an order denying the Elim church’s appeal.
“… All arrangements for worship are permitted while schools, theaters, and auditoriums remain closed,” Seventh Circuit Judge Frank Easterbrook wrote in an opinion issued in June. “Illinois has not discriminated against religion and so has not violated the First Amendment…”
The churches have again appealed to the Supreme Court, filing their petition with the high court in October, as they continue to seek a permanent injunction against Pritzker, on the grounds that he could again seek to impose unconstitutional restrictions upon the churches. The court on Nov. 30 directed Pritzker to respond to the churches’ petition. That response has not yet been filed.
NEW SCOTUS MAJORITY
In the meantime, other, similar challenges have reached the Supreme Court, now with a conservative majority emboldened by the addition of new Associate Justice Amy Coney Barrett, who was appointed by President Donald Trump following the death of progressive Justice Ruth Bader Ginsburg.
In the case known as Dicoese of Brooklyn v Cuomo, that majority delivered a blow in favor of religious freedom, slapping a hold on the enforcement of COVID-related worship service capacity restrictions imposed by New York Gov. Andrew Cuomo.
In that case, the Roman Catholic Diocese of Brooklyn argued Cuomo’s restrictions, which automatically imposed restrictions on houses of worship depending on the ebb and flow of COVID-19 in New York City and the state, violated the First Amendment’s prohibitions on government restrictions on the free exercise of religion.
While the court had overlooked similar cases from elsewhere, including the Elim case against Pritzker, in Diocese of Brooklyn, five justices decided to intervene, declaring the restrictions were too hostile to religion. They agreed the restrictions treat religious assemblies more harshly than other “essential” activities, such as shopping at large stores.
In that decision, the majority suggested state policies could be more “narrowly tailored” to set capacity limits as a ratio of “the size of the church or synagogue,” rather than a set numerical limit, regardless of the building’s normal capacity.
The court also brushed aside assertion that adherents’ religious freedoms weren’t violated because adherents were still free to worship online or by watching “services on television.”
“… Such remote viewing is not the same as personal attendance,” the justices wrote in the per curiam order.
“… Even in a pandemic, the Constitution cannot be put away and forgotten,” the majority wrote. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
The decision departed from the Supreme Court's prior holding in the 1905 decision known as Jacobson v Massachusetts. That decision, in which the Supreme Court at the time had ruled constitutional concerns did not preclude vaccine mandates, has been extensively cited by courts across the country, including in the Seventh Circuit and Chicago federal courts, rejecting nearly all constitutional challenges to actions taken by governors against COVID-19 in 2020.
In a concurring opinion, Justice Neil Gorsuch specifically singled out for critiscim the overarching reliance of many judges on Jacobson.
In the Diocese of Brooklyn case, "the State has effectively sought to ban all traditional forms of worship in affected 'zones' whenever the Governor decrees and for as long as he chooses," Gorsuch wrote. "Nothing in Jacobson purported to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights. In fact, Jacobson explained that the challenged law survived only because it did not 'contravene the Constitution of the United States' or 'infringe any right granted or secured by that instrument.'”
"Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic?" Gorsuch wrote.
A few days after delivering the Diocese of Brooklyn ruling, the court also signaled intent to apply that holding elsewhere, as well. In a similar case out of California, known as Harvest Rock Church v Newsom, a church in Pasadena asserted California Gov. Gavin Newsom had also infringed on their constitutional religious exercise rights by similarly limiting worship service attendance in the name of fighting COVID-19.
While the U.S. Ninth Circuit Court of Appeals had refused to grant an injunction blocking Newsom’s restrictions, the Supreme Court vacated that ruling, and directed the Ninth Circuit to take another look at Harvest Rock Church’s case, in light of its ruling in Diocese of Brooklyn.
NEW ROADMAP, NEW LEGAL REGIME
Following those rulings, Liberty Counsel, which also represents Harvest Rock, proclaimed the court had established a “roadmap” for churches to challenge what it called “tyrannical governors,” seeking to impose what they believe to be unconstitutional mandates on religious assemblies.
They noted the kind of order issued by the Supreme Court in the Harvest Rock Church case was “exceedingly rare,” as it granted not only an emergency injunction pending appeal, but agreed to take up the case, issuing a so-called writ of certiorari, before the Ninth Circuit had rendered a final judgment in their case.
The Supreme Court’s actions could have real impact in Illinois, as well, said Whittaker.
At the Seventh Circuit, the Beloved Church and Cassell are also continuing their case against Pritzker.
Whittaker noted the Supreme Court specifically cast aside any contention that governors can avert appointments with the high court simply by changing their policies at the last minute.
In New York, for instance, Cuomo attempted to argue he had also slightly loosened restrictions on churches, just before Diocese of Brooklyn landed before the court, mooting the case before the Supreme Court could rule.
Whittaker said the court noted the Diocese of Brooklyn decision indicated the court will no longer allow such tactical maneuvers to forestall a ruling on the constitutionality of a governor’s prior actions.
“It looks like that won’t be countenanced anymore,” Whittaker said.
In a letter filed with the Seventh Circuit court on Nov. 30, Whittaker specifically drew the judges' attention to the issue of whether Pritzker's new public health guidance for houses of worship had mooted the churches' legal claims.
While Pritzker’s decision to replace his prior worship restrictions with health guidelines, the governor specifically reserved his authority under the law to again impose such restrictions, should he deem it necessary.
“It can be repeated, so it is not moot, but still very much a live issue,” said Whittaker.
In a letter filed Dec. 2 in response, the Illinois Attorney General’s office, representing Pritzker, urged the Seventh Circuit not to apply Diocese of Brooklyn to the cases against Pritzker. They specifically urged the Seventh Circuit not to use the decision to overrule its earlier ruling in the Elim case.
The attorney general argued the circumstances in the Elim case were different enough from the New York case to allow Elim to stand. The attorney general said he believed Illinois’ rules were in line with federal COVID-19 health guidance, and the state noted “the Elim plaintiffs did not provide evidence of gathering repeatedly without outbreaks,” as had the Brooklyn Diocese.
Whittaker, however, said it remains to be seen how the appeals courts and the Supreme Court will now proceed in light of what he called the “new legal regime,” established in recent days by the high court, for review of religious freedom cases against Pritzker and other governors.
Whittaker said the high court, in the Elim case in particular, could opt to take up the case for arguments, or could treat the case the same as Harvest Rock Church, sending the decision back to the Seventh Circuit for reconsideration in light of the Diocese of Brooklyn ruling.
Regardless of the action taken, though, governors, like Pritzker, should now “see the handwriting on the wall,” Whittaker said, and understand prior approaches to limiting religious assemblies may not hold up under the court’s new standard.
A spokesperson for the Illinois Attorney General's office did not respond to questions from The Cook County Record.