The U.S. Supreme Court continues to weigh a church’s request to block Gov. JB Pritzker from being able to impose COVID-related restrictions on religious gatherings.
But for now, a federal appeals panel has ruled in a separate case that Pritzker’s move late last spring to replace capacity restrictions with “public health guidelines” should allow the governor to sidestep a court fight over his earlier actions, which churches have argued violates the First Amendment.
On March 8, the U.S. Seventh Circuit Court of Appeals granted Pritzker’s request to deny the injunction sought by a church in northwest Illinois.
Martin Whittaker
| Thomas More Society
In the ruling, the appeals judges determined that, if Pritzker were to again impose strict capacity limits on church services and other religious gatherings, the courts may invoke new Supreme Court decisions to determine Pritzker violated church members’ First Amendment rights.
But for now, the judges said churches face no real threat of any governmental action to shut down their in-person worship services or other gatherings in the name of fighting the COVID-19 pandemic. They noted the governor has stated his intent to never seek to reimpose the restrictions.
“In a situation like this, there is not, and for months has not been, an equitable need for a preliminary injunction,” the judges wrote.
The decision was authored by Seventh Circuit Judge David F. Hamilton. Circuit judges Diane P. Wood and Amy J. St. Eve concurred.
A year ago, Pritzker began imposing a host of restrictions on business and social activity across Illinois, citing emergency powers he claimed were his under Illinois state law, to combat the spread of the then-novel coronavirus that causes COVID-19.
Those restrictions took particular aim at activities that led to large gatherings of people, especially indoors.
However, when the restrictions limited even religious gatherings to no more than 10 people, a number of churches resisted the orders. The Beloved Church, of Lena, in Stephenson County, and its pastor, Stephen Cassell, was the first religious organization to sue Pritzker, asserting his orders trampled on religious freedoms.
They were followed by another lawsuit brought by the Elim Romanian Pentecostal Church, of Chicago, together with Logos Baptist Ministries, of Niles. That legal action also challenged Pritzker’s ability to impose the worship service restrictions.
Federal judges turned aside requests from the congregations for restraining orders and injunctions against Pritzker’s orders. However, the congregations appealed.
Just a day before the U.S. Supreme Court was poised to weigh in on the Elim congregation’s appeal seeking a restraining order, Pritzker announced he was exempting religious assemblies from his capacity restrictions, and replacing the mandates with public health guidelines and recommendations for such congregations.
Pritzker then argued that shift should end the churches’ constitutional claims against him, denying the churches the opportunity to obtain a court order definitively barring Pritzker from ever again implementing such restrictions on churches.
In more recent days, Pritzker has also told the Supreme Court he does not intend to again seek to slap such gathering restrictions on churches during the COVID-19 pandemic.
Pritzker’s move was cited by the U.S. Supreme Court and the Seventh Circuit in continuing to deny the churches the relief they sought.
However, last fall, the U.S. Supreme Court changed the legal landscape, delivering several decisions in cases from New York and California, striking down state prohibitions on indoor worship services and severe restrictions on worship service capacities.
Pritzker and the Elim church are continuing their dispute before the Supreme Court, with both sides trading briefs in the past few months. The church has argued the Supreme Court still needs to step in, to not allow Pritzker to walk away after they say he trampled their rights. The governor, however, insists his move last spring and his assertions that he will not seek to reimpose the restrictions removes the need for any further action from the high court.
The Supreme Court has not yet ruled on the Elim church’s petition for intervention.
However, at the same time, The Beloved Church and Pritzker have continued their dispute before the Seventh Circuit, where the church has continued to seek a formal injunction barring Pritzker from enforcing any further restrictions on churches in the name of public health.
There, however, Pritzker has continued to find a receptive audience.
Judge Hamilton and the other members of the appellate panel agreed the church’s case has not been rendered moot by Pritzker’s actions.
However, they said the lack of any threat of enforcement of any COVID-related gathering restrictions also means the church can’t obtain an injunction, at this point, either.
“… We find it difficult to draw a conclusion of discrimination against religion from Illinois’ initial steps and adjustments last spring to begin the enormously complex task of protecting public health in the face of a virus transported by air and by people who have no symptoms, while also allowing truly essential activities to proceed as safely as possible,” Hamilton wrote.
The judges noted they continue to believe the so-called “balance of harms” would continue to tilt toward the governor, even though his actions may now be considered by the Supreme Court to violate the First Amendment. They noted they continue to believe in-person worship services jeopardize public health by increasing the risk of contagious disease infection, beyond the church’s congregation.
“The world has not suffered a pandemic this deadly since 1918,” Hamilton wrote. “Governments and citizens have thus been forced to act with imperfect knowledge. It has been difficult to quantify the risks of infection posed by different public activities like worshipping or shopping, how the virus affects different subpopulations, whether hospitals might run out of beds, and to estimate when ‘herd immunity’ might be achieved through vaccination - to list just some examples.
“Accordingly, while ‘the Constitution cannot be put away and forgotten,’ as judges without scientific expertise, we must appreciate these uncertainties and ‘choose the course of action that will minimize the costs of being mistaken,’” Hamilton wrote.
The Beloved Church and Cassell are represented by attorney Martin Whittaker, of the Thomas More Society, of Chicago.
Pritzker is represented by the Illinois Attorney General’s office.