A federal appeals panel on Friday questioned whether Gov. J.B. Pritzker’s since-withdrawn restriction on in-person religious gatherings justifies a temporary injunction preventing him from re-instating it.
The 40-minute oral argument before the 7th U.S. Circuit Court of Appeals was conducted by telephone and livestreamed over YouTube.
The plaintiffs in the case, Elim Romanian Pentecostal Church in Albany Park and Logos Baptist Ministries in Niles, sued the state alleging a 10-person cap on worship violated their religious freedom. In the latest executive order issued by Pritzker, those restrictions were not included, while others remain in place for businesses and non-religious organizations.
Last month, U.S. District Judge Robert W. Gettleman denied the churches’ requests to enjoin the executive order effective at the time, holding that Pritzker’s order “without doubt, is rationally based in light of the need to slow the spread of COVID-19 in Illinois.”
The legitimate governmental purpose behind the orders meant they didn’t violate freedom of speech, religion or assembly under the First Amendment, Gettleman wrote on May 13.
The churches immediately asked the 7th Circuit for an emergency injunction, which it denied. Then they filed an emergency application for writ of injunction before the U.S. Supreme Court on May 27.
The high court passed on the matter, citing the governor’s May 29 order that lifted all in-person restrictions on churches and houses of worship.
Before the 7th Circuit, attorneys for the state contended the high court’s rejection of the appeal and a clause in Pritzker’s newest order claiming it “does not limit the free exercise of religion” renders the churches’ case moot.
But attorneys from Liberty Counsel, a Christian public-interest law firm representing the churches, argued the appeal still holds water because there’s nothing to stop Pritzker from later implementing similar restrictions.
Horatio Mihet, chief litigation counsel for Liberty Counsel, told the three-judge panel there is “no doubt” that Pritzker “hasn’t had a change of heart,” that Pritzker’s executive order lifting the previous harsher restrictions was a “litigation-driven change of policy” and that it “remains likely that the governor can and will return to the policy.”
He said Pritzker should have tried a less restrictive approach toward religious services at the start of the pandemic, or at least made a compelling case why alternative measures would not work if he could not try them.
Judge David F. Hamilton said that amid the COVID-19 pandemic, where cases spread exponentially without mitigation efforts, Mihet’s suggestion of starting with lax rules “sounds crazy.”
Hamilton asked Illinois Assistant Attorney General Priyanka Gupta why Executive Order 2020-32 applied the same 10-person cap to a cathedral with room for 1,000 people and to a storefront with a capacity of 30 people.
That limit, Gupta responded, was consistent with guidance issued by the federal Centers for Disease Control and Prevention at the time. It also seemed appropriate because of the rapid spread of coronavirus cases in Illinois, she said, adding the governor’s actions were rooted in a public-health interest and did not constitute an invasion of constitutional rights.
Rather than showing religious animus, Gupta said, Pritzker’s later loosening of restrictions on worship and religious social services showed he was cognizant of the different types of activities religious groups engage in.
Hamilton pressed Gupta on that point, asking her how the panel should distinguish between discriminatory or pretextual features of governors’ executive orders and legitimate deference.
“We see, for example around the country, the exercise of some constitutional rights is more controversial than others,” Hamilton said. “It’s pretty hard to find animus against religion in an elected leader in the United States. But it’s not hard to find people who are elected to office and want to, for example, impose greater restrictions to firearms or greater restrictions on access to abortion services.”
Hamilton also pointed to the surge in marches and demonstrations that has followed the death of George Floyd at the hands of Minneapolis police.
Gupta conceded there is still a risk to gathering in large groups, but that there are no restrictions on religious gatherings and that Pritzker made a “permissive policy choice” to allow all First Amendment-protected activities. There was also no evidence of pretext when Pritzker issued his order because of medical data and recommendations from public-health experts at the time, Gupta said.
Judge Frank H. Easterbrook expressed skepticism over the state’s mootness argument because Pritzker attributes his decisions — and any future ones — to the state of the virus’ spread.
“I wonder how it is absolutely clear that it can’t recur if the governor is reserving his right to change the rule when the data changes,” Easterbrook said.
Gupta argued the worship restriction is not reasonably expected to occur because Pritzker’s decisions were always tied to medical research. Now that the state knows more about the SARS-Cov-2 virus, the same harsher rules would likely not be implemented again.
Easterbrook pushed back, asking her why Pritzker won’t make an “ironclad commitment” not to rescind the current stay-at-home order if the state “knows enough about the virus to be sure.”
Making such a declaration would put the state at a disadvantage if a new strain of the virus began to spread, Gupta responded.
Judge Michael S. Kanne said there are not universal findings in medical evidence. Proposing a compromise, he asked whether the state would commit to not enforcing the previous orders without first coming back to the panel to seek permission.
The state, Gupta said, would not be willing to do so.
This case before the U.S. 7th Circuit Court of Appeals is Elim Romanian Pentecostal Church, et al v. Jay Pritzker, No. 20 C 1811.