Illinois Gov. JB Pritzker has told the U.S. Supreme Court he has no intention of ever again applying COVID gathering restrictions on churches and other houses of worship as part of the state’s ongoing regime of societal and business restrictions to curb the spread of the pandemic virus.
On Feb. 16, Illinois Attorney General Kwame Raoul and other attorneys from his office, who are representing Pritzker, filed a brief with the Supreme Court as part of the governor’s response to the petition filed by a Chicago church, seeking an order formally barring the governor from locking down religious gatherings again.
In the filing, Pritzker argued the lawsuit, brought by the Elim Romanian Pentecostal Church, should be considered moot, because he lifted the challenged gathering restrictions last spring, and has not sought to reimpose them since.
“… There is no reasonable expectation that the Governor will reimpose the challenged limitation because it was a temporary measure imposed in a different context—the ‘dawn of [the] emergency,’ when governmental actors were grappling with an unprecedented pandemic and taking aggressive steps to curb the spread of COVID-19,” Raoul wrote in the Feb. 16 brief.
“…But as the pandemic continued to affect Illinois residents’ daily lives, the Governor’s response to the pandemic evolved, too. He continued to protect public health and safety by restricting activity throughout the State, but he also balanced the need for these restrictions with other significant state interests, including the free exercise of religion.”
The brief comes as the Supreme Court considers whether to take up the church’s appeal.
The Elim congregation was one of two Illinois congregations to sue Pritzker in 2020, challenging his authority to restrict religious assemblies, as he had other large gatherings and societal and business activities throughout the state since last March, at the onset of the COVID-19 pandemic.
Initially, those restrictions included such rules as 10-person limits on all gatherings, including church worship services and other religious assemblies.
In the year since, as COVID infection activity has waxed and waned, Pritzker has applied restrictions and eased them, as he deemed conditions warranted.
However, since the end of last May, when the churches’ legal actions first appeared headed for the Supreme Court, Pritzker has specifically exempted religious gatherings from his restrictions, classifying the free exercise of religion as an “essential” activity. Instead, the governor asked churches to abide by COVID-specific public health guidelines crafted by the Illinois Department of Public Health.
While that action lifted government oversight of church gatherings amid the pandemic, it did little to stop the churches’ constitutional challenges, as the churches have argued a Supreme Court order is required to prevent the governor from reimposing such restrictions.
They argue Pritzker overstepped the bounds of his constitutional authority and violated the First Amendment religious rights of churches and Illinoisans when he imposed the gathering restrictions. And they say, absent a clear order from the Supreme Court, Pritzker is likely to do it again.
They note lower courts, including the U.S. Seventh Circuit Court of Appeals in Chicago, have sided with Pritzker on the constitutional questions, as those courts declared they believed public health concerns allow governors to trespass on constitutional rights, including freedom of religion and assembly.
They asserted the governor was within his rights to limit churches because he had also closed down large indoor secular gathering sites, such as theaters and stadiums.
The Supreme Court, however, changed the legal landscape in recent weeks, as it has twice ruled governors, in New York and California, overstepped their constitutional bounds in imposing certain gathering limits on churches. In early February, in the case docketed as South Bay United Pentecostal Church v Newsom, the high court declared California’s ban on indoor worship services, imposed by Gov. Gavin Newsom, unconstitutional.
That had followed a ruling late last year by the Supreme Court, similarly striking down religious gathering restrictions imposed on churches and synagogues imposed by New York Gov. Andrew Cuomo.
The churches suing Pritzker, including the Elim church, of Chicago, and The Beloved Church, of Lena, in northwest Illinois, have pointed to such rulings, asserting they bolster their cases that further court action is needed to make clear that the governor of Illinois cannot constitutionally cite a pandemic to restrict religious gatherings by executive order, while allowing other societal activities, such as in-person retail shopping, to continue.
The governor, however, has asked both the Seventh Circuit and, now, the Supreme Court, to consider the lawsuits from those churches to be moot.
At the least, Pritzker asked the Supreme Court to simply send the Elim case back to Chicago’s federal courts for further proceedings, in light of the Supreme Court’s related decisions.
“… In reality, any limit on petitioners’ ability to hold religious gatherings ended eight months ago with the expiration of (Executive Order 32 in May 2020),” Raoul wrote on Pritzker’s behalf. “And since EO32 expired, the Governor has not imposed any restriction on religious gatherings, despite issuing numerous executive orders implementing social distancing guidelines and other public-health measures designed to curb the spread of COVID-19.
“Instead, he has continuously exempted religious exercise from the reach of his pandemic-related regulations and stated that he will continue this exemption.”
The Elim church is represented by attorneys with Liberty Counsel, of Orlando, Fla.