Gov. J.B. Pritzker’s caps on religious group gatherings in executive orders this spring did not violate the First Amendment, a federal appeals panel ruled Tuesday.
And even though those restrictions were eased a few weeks ago, the 7th U.S. Circuit Court of Appeals effectively gave Pritzker a go-ahead to reinstate a similar a 10-person cap on worship services if the spread of COVID-19 starts to accelerate again.
The 10-person limit does not violate the free exercise of religion, Judge Frank H. Easterbrook wrote for the panel.
The Elim Romanian Pentecostal Church in Albany Park and Logos Baptist Ministries in Niles sued the state alleging Executive Order 2020-32’s limits on worship violated their religious freedom.
Last month, U.S. District Judge Robert W. Gettleman denied the churches’ requests to enjoin that order, holding it “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 order meant it 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.
Attorneys for the state argued that the case was moot following the high court’s rejection of the appeal and changes in Pritzker’s newest order.
But attorneys from Liberty Counsel successfully argued the appeal still held water because there’s nothing to prevent Pritzker from implementing similar restrictions in the future.
The court agreed that Pritzker can easily impose the rules again, so the appeal was not moot.
The state moved into Phase 3 of its reopening plan on May 29.
Gatherings of more than 50 people can’t resume until Illinois enters the fifth and final phase of Pritzker’s plan, which requires a vaccine for the virus, an effective and available treatment, or the absence of new cases for a continuous period.
“The vital question therefore is whether Executive Order 2020-32 discriminates against religion,” Easterbrook wrote. “Funerals, weddings, and similar activities are subject to the same size limit that applies to worship services. Illinois did not set out to disadvantage religious services compared with secular events. Nor does the order discriminate among faiths.”
The state does discriminate in its classification of “other indoor public gatherings of unrelated persons,” Easterbrook wrote. Worship services can proceed with size limits, while concerts and movies are banned, meaning the court needed to consider the right “comparison group” to determine the constitutionality of the restrictions.
The panel followed the lead of a concurring opinion issued last month by U.S. Supreme Court Chief Justice John G. Roberts in South Bay United Pentecostal Church v. Newsom, which denied an injunction request to allow churches in California to hold in-person services.
In South Bay, Roberts held concerts and church services differ from going to grocery stores and pharmacies because the former activities require people to congregate in large groups and stand together closely for long periods of time.
The 7th Circuit agreed, writing that “movies and concerts seem a better comparison group, and by that standard the discrimination has been in favor of religion.”
Worship services, like going to the movies, “puts members of multiple families close to one another for extended periods, while invisible droplets containing the virus may linger in the air,” Easterbrook wrote.
“Functions that include speaking and singing by the audience increase the chance that persons with COVID-19 may transmit the virus through the droplets that speech or song inevitably produce,” he wrote.
Easterbrook conceded that other places where people do congregate and interact for long periods of time, like meatpacking plants and nursing homes, have faced outbreaks of COVID-19. But it reasoned that “reducing the rate of transmission would not be much use if people starved or could not get medicine.”
“Perhaps with more time — and more data from contact tracing — Illinois could figure out just how dangerous religious services are compared with warehouses and similar activities, but no one contends that such data were available when Executive Order 2020-32 was promulgated (or, for that matter, now),” Easterbrook wrote.
Matthew D. Staver, who chairs Liberty Counsel, said in an emailed statement the firm will ask the 7th Circuit for an en banc review and, if necessary, petition the Supreme Court.
“The opinion is shocking in portions of it are arrogant and ignorant of churches and houses of worship,” Staver said.
A spokesperson for the Illinois Attorney General’s Office could not immediately be reached for comment.
Judges Michael S. Kanne and David F. Hamilton concurred in the ruling.
This case is Elim Romanian Pentecostal Church, et al., v. Jay Pritzker, No. 20-1811.
On Monday, Pritzker’s administration received another challenge in federal court to his current executive order. This time, the Illinois Republican Party and three local GOP groups want to enjoin Pritzker from enforcing Executive Order 2020-38 against political gatherings.