The U.S. Supreme Court has refused to take up an appeal from a Chicago Christian church, seeking an order barring Illinois Gov. JB Pritzker from ever again imposing restrictions on religious gatherings and worship services, as part of a state response to a pandemic.
On March 29, the Supreme Court formally declined the petition from the Elim Romanian Pentecostal Church for a so-called writ of certiorari, an order the high court issues when it decides to take up an appeal.
The non-profit organization providing attorneys to the church cautioned not to read too much into the court’s denial of certiorari. They said they believed the court opted to decline the case, because the risk was too high of a 4-4 decision.
They noted Justice Amy Coney Barrett did not take part in the decision. The order denying certiorari does not explain why.
However, Barrett, a conservative jurist appointed to the court as one of the final momentous acts by former President Donald Trump in the fall of 2020, had served on the U.S. Seventh Circuit Court of Appeals in Chicago. Barrett had served on that court when it considered Elim’s appeals in the spring and summer of 2020, before Trump selected her for the Supreme Court.
“This is no doubt the reason why Justice Barrett took no part in the consideration at the Supreme Court,” said the religious freedom legal defense organization known as Liberty Counsel, in a statement released March 29.
“The most likely reason the Supreme Court denied the petition for cert is because there would only be eight justices to consider the case, which means the case could end up with a 4-4 split decision,” Liberty Counsel said.
They noted the Supreme Court has already taken unprecedented actions on behalf of the religious assembly rights of churchgoers amid the pandemic, in rulings striking down worship restrictions imposed by the states of New York and California.
And Liberty Counsel noted the court has not yet decided whether to take up cases dealing with similar legal questions elsewhere in the U.S., including in a case in which they are representing a congregation against worship restrictions imposed in Maine.
The Elim congregation and Illinois Attorney General Kwame Raoul, on behalf of Pritzker, have sparred for months in federal courts in Chicago, and before the Supreme Court, over Pritzker’s decision last spring to forbid indoor worship services of no more than 10 people, in the name of fighting the COVID-19 pandemic.
Those restrictions came as part of Pritzker’s sweeping actions to restrict social and business activities across the state, citing emergency powers under state law to address what he declared to be a statewide public health disaster.
In more than a year since he first imposed restrictions across the state, Pritzker has applied, tightened and eased restrictions at various points, as he deemed conditions warranted.
However, last spring, the restrictions provoked a swarm of legal challenges from individuals, businesses and others, who asserted Pritzker had overstepped the bounds of his authority and trampled constitutional rights.
Those lawsuits included complaints from at least two churches, the Elim church in Chicago and a church in Lena, in northwest Illinois.
To this point, judges in Illinois state and federal courts have almost unanimously upheld Pritzker’s powers and his decisions, even against churches. They brushed aside concerns over religious freedom, saying the severity of the COVID-19 pandemic allows for constitutional rights to be infringed, until the governor declares the disaster has passed.
Lower court federal judges have generally ruled the governor was within his rights to limit churches because he also shut down large indoor secular gathering sites, such as theaters and stadiums.
However, in late May 2020, as it became apparent the church-related cases could be picked up by the Supreme Court, Pritzker altered his restriction regimes, specifically exempting religious gatherings from his restrictions. He classified the free exercise of religion as an “essential activity.” And he asked churches to abide by COVID-specific public health guidelines crafted by the Illinois Department of Public Health.
The churches, however, have pressed on with their constitutional legal challenges, arguing a court order – preferably, from the Supreme Court – is required to prevent Pritzker or any other governor from reimposing the restrictions.
However, he has also argued the court should not strip him of those powers, should they be needed in the future.
The churches have repeatedly argued that refusal by Pritzker to disavow those powers demonstrate the need for such a court order, specifically prohibiting those restrictions.
The Supreme Court raised the hopes of the Elim church and others suing over COVID-related restrictions on religious freedom grounds, through their rulings in late 2020 and early 2021, in the cases out of New York and California.
The Elim congregation specifically pointed to those rulings in their briefs, asserting they bolster their contentions that further court action is needed to make clear that Pritzker and other governors, or mayors, cannot constitutionally cite a pandemic to restrict religious gatherings by executive order, while allowing other societal activities, such as retail shopping, to continue.
In response, Pritzker and Raoul have said the churches’ cases are moot, because the governor’s decisions to replace restrictions with public health guidelines ended any lingering legal dispute between the churches and the state months ago.
In denying certiorari, the Supreme Court did not address the merits of either the church’s or the governor’s legal arguments.
With their requests for both a temporary restraining order and preliminary injunction defeated, Liberty Counsel said the Elim church will continue pressing its case. They next will ask a Chicago federal judge for summary judgment in their favor, according to their March 29 statement.