As Illinois returns, mostly, to normal after 15 months under Gov. JB Pritzker’s COVID-related restrictions, a Chicago church is continuing its push for a court order formally blocking Pritzker from ever trying again to impose capacity restrictions on houses of worship.
Pritzker, however, is continuing his push to get the long-running legal challenge to his authority tossed, repeating his assertion in new court filings that no such order is needed, because he has made it clear he never intends to again issue such restrictions in the name of fighting COVID-19, and any active dispute ended more than a year ago.
In mid-May, Pritzker, through his lawyers at the Illinois Attorney General’s office, asked U.S. District Judge Robert J. Gettleman to dismiss the lawsuit pursued since May 2020 by Elim Romanian Pentecostal Church, of Chicago.
However, that dismissal request came one week before the lawyers representing Elim against the governor of Illinois, also secured an injunction on behalf of churches in California barring that state’s Democratic governor, Gavin Newsom, from imposing capacity and activity restrictions against churches and other houses of worship.
In response to Pritzker’s request to dismiss, Elim’s lawyers, through the nonprofit advocacy group, Liberty Counsel, pointed to a string of recent U.S. Supreme Court decisions favoring churches in their dispute with state governors over COVID-related restrictions imposed on worship services and other religious activities.
They said those decisions, and decisions by other courts against state governors, came despite similar assertions by those other state governors that the state, in the face of sustained constitutional challenges, had similarly decided to ease restrictions in cases.
But in those decisions, the Supreme Court’s majority repeatedly declared that governors who “have been moving the goalposts” throughout the pandemic, can’t use those shifts to escape scrutiny of prior actions allegedly infringing on religious freedoms.
“Here, from the beginning of the Governor’s unconstitutional regime, he has retained the sole authority to impose whatever restrictions he deems fit for his Restore Illinois Plan – including restricting the constitutionally protected free exercise of Plaintiffs’ religious worship,” Elim’s lawyers wrote in a brief filed May 28.
“And, under the currently operative framework of the Restore Illinois plan, the Governor unquestionably retains the authority to reinstate his restrictions at any time. Indeed, the Governor even admits that he maintains authority to return Illinois to any prior restrictions at any time.”
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.
On June 11, Pritzker lifted all restrictions on Illinois activities, allowing the state to return to full capacity for all activities and gatherings, as the state entered Phase 5 of Pritzker’s so-called “Restore Illinois” plan.
However, in the spring of 2020, the newly imposed 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.
Pritzker has since also pledged to courts repeatedly he has no intent to again seek to restrict activities at churches and other houses of worship.
However, he has also argued the courts should not strip him of the ability to do so, should he deem such restrictions are needed in the future.
And the governor’s lawyers have pointed to the decision of the Supreme Court not to hear Elim’s appeal to buttress Pritzker’s claim that the high court has decided there is no real controversy remaining in this case, and Elim’s case is now moot.
Elim’s lawyers, however, said the governor’s continued claim to authority to again apply COVID restrictions, even on church worship services, means a court order is required to ensure Pritzker cannot again attempt to shut down religious assemblies.
“The Governor’s only retort to the avalanche of the Supreme Court’s precedent is to claim that the denial of certiorari in this matter proves the Supreme Court believes this case is moot,” Elim wrote in its May 28 brief.
“Balderdash.”
In a brief filed on June 10, Pritzker’s legal team replied to Elim’s claims, saying the church is making too much of the spate of the recent decisions from the Supreme Court and other federal judges in favor of churches.
In those other states, including California, governors were still attempting to apply restrictions at the time of the ruling. In Illinois, however, Pritzker has not sought to enforce any restrictions for more than a year.
“The executive order that plaintiffs challenge expired more than a year ago; the Governor has formally stated, and confirmed through his conduct, that he will not reimpose the only limitation that plaintiffs allege violated their constitutional rights; and the Governor has significantly relaxed the mitigation measures that have been imposed during the pandemic,” the Attorney General’s office wrote in its June 10 brief.
“Under these circumstances, the Court lacks authority to advise the plaintiffs whether the long-expired executive order violated their constitutional rights, and so it must dismiss plaintiffs’ claims to the extent they seek injunctive or declaratory relief.”
Deputy Illinois Solicitor General Alex Hemmer presented Pritzker’s arguments.
Elim has been represented by attorney Daniel J. Schmid, and others with Liberty Counsel, of Orlando, Fla., as well as attorney John Mauck, of the firm of Mauck & Baker, of Chicago.