A federal appeals panel has ruled Gov. JB Pritzker may have violated the U.S. Constitution by attempting to shut down religious worship services in the early days of the state’s response to COVID-19.
But the appeals judges said the church is not entitled to a court order specifically barring Pritzker from attempting to do so again – even though the governor has consistently argued he did not overstep his authority in restricting religious gatherings in the first place.
U.S. Seventh Circuit Judges Frank Easterbrook, Michael Kanne and David Hamilton handed the decision in a unanimous order, known as a per curiam decision, issued Jan. 11.
“More than 19 months have passed since they (the church) were last subject to an attendance limit, and the Governor has not suggested that another is likely,” the appellate judges wrote. “A legal conclusion that rescinded order violated the Constitution would not entitle anyone to an injunction.
“… In addition to stressing that an injunction is a discretionary remedy, which new developments may make unnecessary (if not imprudent), we observed that the Governor likely will take account of legal developments when issuing any new orders.
“A federal court ought to give state officials the respect of predicting that they will accept and follow the Supreme Court’s analysis,” the judges wrote.
The decision brings to a close a long-running legal battle between the Pritzker administration and the Chicago Christian congregation known as the Elim Romanian Pentecostal Church.
The Elim church sued Pritzker in April 2020, over the governor’s decision to forbid indoor worship services of no more than 10 people, claiming the limits were needed to fight COVID-19.
The restrictions came as part of Pritzker’s sweeping actions, beginning in March 2020, to restrict social and business activities across the state, using emergency powers he claimed under Illinois’ disaster response law.
In the months that followed, Pritzker applied, tightened and eased restrictions at various points, as he solely deemed conditions warranted.
Federal judges in Chicago, including judges with the Seventh Circuit, brushed aside legal claims, including those brought by the Elim church, that Pritzker’s orders violated religious liberties guaranteed under the Constitution. Those judges ruled the severity of the COVID pandemic allowed for the governor to infringe on constitutional rights, until he alone determined the disaster had passed, and surrendered his emergency powers.
The judges further determined Pritzker acted lawfully to close churches, because he also shut down theaters, stadiums and other large secular gatherings.
However, in late May 2020, the church appealed to the U.S. Supreme Court. And when it became clear that the high court intended to take up some of the challenges against governors who had acted similarly against religious gatherings, Pritzker altered his orders, specifically exempting religious gatherings from his restrictions.
Instead, he asked churches to abide by COVID-specific public health guidelines crafted by the Illinois Department of Public Health.
Pritzker has also pledged repeatedly in court that he has no intention of again seeking to restrict worship services and other religious gatherings.
However, he argued the courts should not strip him of the ability to do so, should he deem such restrictions are needed, because he and the state do not believe such restrictions improperly violated anyone’s religious freedoms.
In the meantime, the U.S. Supreme Court took up other cases out of New York and California, in which religious congregations also sued Democratic governors who had attempted to order houses of worship closed or severely limited in the name of fighting the spread of COVID.
In those cases, the high court’s majority struck down COVID-related restrictions on religion imposed by former New York Gov. Andrew Cuomo and California Gov. Gavin Newsom. Justices also singled out governors who “have been moving the goalposts” throughout the pandemic, and asserted governors can’t simply escape scrutiny by rescinding orders after it becomes apparent they may be struck down.
Elim’s lawyers, from the non-profit religious liberties legal advocacy group, Liberty Counsel, argued before federal judges in Chicago, at the Seventh Circuit, and in briefs filed before the Supreme Court, that Pritzker needed to be restrained by a court order, clearly explaining he had overstepped his bounds and violated the religious rights of Christians and other religious adherents in Illinois.
The Supreme Court, however, declined to take up Elim’s appeals.
And the judges on the Seventh Circuit declined the invitation to attempt to discern whether Pritzker had learned from the lessons handed down by the Supreme Court to his gubernatorial brethren in New York and California.
“Trying to predict what executive orders may be adopted in response to which potential changes in the course of a disease is a mug’s game and not a firm ground for resolving this case,” the judges wrote.
“… If Illinois imposes an objectionable order in response to new developments in the pandemic, the churches may file a new suit. But this suit is over.”
Pritzker was represented by the Illinois Attorney General’s office.
In response to the Seventh Circuit ruling, Mat Staver, founder and chairman of Liberty Counsel, issued a prepared statement, saying:
“Our lawsuit on behalf of the churches resulted in the removal of all restrictions on churches and places of worship after we took the case to the U.S. Supreme Court.
“The High Court has made clear that the government may not impose discriminatory restrictions on churches and places of worship.
“Thanks to our litigation, churches have been free from unconstitutional restrictions since May 2020. If the current or future governor returns to these unconstitutional restrictions, we will again vigorously challenge them.”