As he faces a potential date with the U.S. Supreme Court over his earlier pandemic restrictions imposed on churches, Illinois Gov. JB Pritzker has sought to use an addition to a new COVID-related executive order to again shut down at least one of the federal lawsuits still pending.
On Jan. 15, Pritzker signed Executive Order 2021-02. The new order, issued once more under emergency powers he has claimed and employed since the onset of the pandemic 10 months ago, was primarily designed to ease some of the more stringent restrictions imposed on indoor restaurant dining and other activities under Pritzker’s tiered COVID-19 plan.
However, Order 21-2 also included a provision explicitly declaring the governor was continuing to exempt the “free exercise of religion,” including gatherings at churches and other houses of worship from his assembly restrictions otherwise applied across the state.
Further, the new language declared Pritzker did “not intend to rescind these exemptions during the disaster proclamations due to COVID-19.”
On Jan. 20, the Illinois Attorney General’s office filed a letter with the U.S. Seventh Circuit Court of Appeal in Chicago. The letter informed the court of the language pertaining to religious freedom expressed in Order 21-2, and argued that language should be enough to effectively negate First Amendment challenges brought by churches against Pritzker over his handling of the state response to the COVID-19 pandemic.
Since last spring, Illinois Attorney General Kwame Raoul has defended Pritzker against a blitz of lawsuits challenging his authority to take sweeping action statewide to restrict a range of business and social activities in the name of fighting COVID-19. The state has largely prevailed on the grounds Illinois state law and the state's so-called police power gives the governor broad leeway to impose such limits, since he has declared a statewide disaster in response to the pandemic.
Among those actions were lawsuits brought by churches, asserting Pritzker particularly overstepped the bounds of his constitutional authority and violated the First Amendment religious freedom rights of churches and Illinoisans when he imposed gathering restrictions on churches in the early months of the pandemic.
In the spring, Pritzker cited his emergency powers in restricting gatherings at churches and other houses of worship to no more than 10 people. At the time, Pritzker’s orders envisioned no future in which religious gatherings in Illinois would exceed 50 people until a vaccine or some other effective treatment for COVID-19 could be developed and deployed.
The first lawsuit was brought by The Beloved Church, of Lena, in northwest Illinois, and its pastor, Stephen Cassell.
A second legal challenge followed from plaintiffs Elim Romanian Pentecostal Church, of Chicago, and Logos Baptist Ministries, of Niles, in which the Christian groups called Pritzker’s orders “an unconstitutional sham.”
Both lawsuits have suffered setbacks, as federal judges denied requests for injunctions blocking Pritzker from enforcing his orders against churches. The judges asserted the normal constitutional prohibitions on the governor’s ability to restrict religious worship services could be amended amid a pandemic.
The judges said they believed churches were akin to theaters and concert halls, which Pritkzer had ordered completely closed. So long as Pritzker did not treat churches worse than such secular gathering places, the judges reasoned, prior U.S. Supreme Court rulings meant the First Amendment did not supercede the need to protect public health.
The rulings prompted both churches to appeal.
The Beloved Church’s case is currently before the Seventh Circuit appeals court.
Elim petitioned the Supreme Court to hear its case, first in May as it sought a temporary restraining order, and again in October, as it continued to seek an injunction against Pritzker.
The high court has not ruled yet on Elim’s latest petition, as Pritzker and Raoul have not yet filed a response to Elim's petition.
The Illinois state officials had asked the Supreme Court to give them until March to file that reply. The Supreme Court instead gave Pritzker and Raoul until Feb. 16.
In the Cassell case at the Seventh Circuit, Pritzker and Raoul have argued the court should dismiss the case, because it is moot.
To back that assertion, they have pointed to Pritzker’s decision in late May – just before the Supreme Court was set to weigh in on Elim’s appeal related to the temporary restraining order - to ease restrictions on religious gatherings, instead replacing the rules with so-called public health guidelines.
Pritzker’s move was cited by the Supreme Court to justify its decision to reject Elim’s initial appeal. And the governor’s shift was also cited by the Seventh Circuit in its decision to reject Elim’s appeal, seeking a permanent injunction.
Elim and The Beloved Church, however, have persisted in their legal challenges, arguing Pritzker’s shift amounted to little more than a maneuver to avoid a court ruling that would slap a First Amendment bar on any attempt by Pritzker to impose pandemic-related restrictions on churches again.
They have argued, unless the courts explicitly forbid him from doing it again, Pritzker could yet cite the same legal reasoning as before to again slap restrictions on churches.
As those appeals have played out, the U.S. Supreme Court again changed the dynamic in the late fall. In an appeal arising out of New York, the Supreme Court’s conservative majority slapped a hold on the ability of New York Gov. Andrew Cuomo to enforce COVID-related worship service capacity limits.
The Supreme Court for the first time ruled that public health interests do not, by themselves, negate the First Amendment. The majority held that New York’s restrictions “strike at the very heart of the First Amendment’s guarantee of religious liberty.”
The Supreme Court then followed that ruling with instructions to appeals judges to reevaluate some of their earlier decisions upholding governors’ powers in other states.
Such an order was not issued to the Seventh Circuit in its handling of the Elim or Beloved Church appeals.
For now, Pritzker has again asked the Seventh Circuit to allow the state to walk away from at least the Beloved Church’s case, arguing his latest executive order means the courts should no longer perceive the Beloved Church – and all other houses of worship – to be at odds with the state.
Attorneys for The Beloved Church have not yet formally replied to Pritzker’s latest request.
The Beloved Church and Cassell are represented in the action by attorneys with the Thomas More Society, of Chicago.
The Elim churches are represented by attorneys with Liberty Counsel, of Orlando, Fla.