CHICAGO (CN) — Two Chicago-area churches argued before a Seventh Circuit panel Friday against Illinois Governor J.B. Pritzker’s order to combat the spread of Covid-19, saying the state’s restrictions discriminate against religious services.
Elim Romanian Pentecostal Church in Chicago and Logos Baptist Ministries in suburban Niles, Illinois, sued the governor on May 7, asking for his 10-person limit on religious gatherings to be lifted.
Making several First Amendment claims, the churches, some of whose pastors and members fled communist Romania due to religious persecution, say in their complaint that “in an effort to uphold his sworn duties Governor Pritzker has stepped over a line the Constitution does not permit.”
While churches were deemed nonessential during the coronavirus outbreak, other businesses like grocery stores, liquor stores and warehouses could remain open.
“The state disparately and discriminatorily allows so-called ‘essential’ commercial and non-religious to accommodate large crowds and masses of persons without scrutiny or the 10-person limit,” the complaint states.
“Plaintiffs, their pastors, and all congregants will suffer immediate and irreparable injury from the threat of criminal prosecution for the mere act of engaging in the free exercise of religion and going to church,” the churches claim, adding that “because of the government threat of criminal sanction, plaintiffs were forced not to host services on Easter Sunday, the most treasured day in Christianity.”
The following week U.S. District Judge Robert W. Gettleman, a Bill Clinton appointee, denied the churches’ request for a temporary restraining order, which would have allowed them to hold in-person services during litigation.
“Plaintiffs’ request for an injunction, and their blatant refusal to follow the mandates of the order are both ill-founded and selfish. Their interest in communal services cannot and does not outweigh the health and safety of the public,” Gettleman wrote. “There is no question that the world, the country, and Illinois in particular are in the midst of a deadly pandemic of epic proportions.”
“Plaintiffs have provided no evidence that the order targets religion,” the judge said, pointing to the fact that church services and shopping and manufacturing businesses are not comparable.
“The order has nothing to do with suppressing religion and everything to do with reducing infections and saving lives,” he concluded.
The churches appealed that decision and have continued holding in-person services despite it.
“What we’re talking about here is an incidental effect,” or a neutral law that ends up affecting something like religious practices, said Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School.
“This is not a law that is directed at religion. That’s not the point of it,” Stone said in an interview. “The law is applying to all of those things that have similar risk.”
Steven Schwinn, professor at the University of Illinois at Chicago John Marshall Law School, agreed: “It’s just issuing this broadly applicable law that happens to have an effect on this particular religious practice.”
“In general the courts are very reluctant to hold laws unconstitutional for that reason,” Stone added. “Because it would be crazy in the sense that every law has the potential to be incidental.”
What the churches have to do, the professors said, is show that the governor is specifically targeting religion with his order.
“What the challengers of this law have to show is that the state intended to harm religious conduct,” said Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University.
“At a minimum they have to show that religious activity is being treated worse than a comparable non-religious activity,” he said, adding that laws that merely burden religions are not presumed to be unconstitutional.
Schwinn said “what the churches are arguing is that the order picks out religion for bad treatment” by allowing more than 10 people to be in stores and other businesses.
Responding to a public health crisis does give the government some leeway in the restrictions it places on everyone, including those practicing religion.
“The government has to be serving a substantial interest. It can’t be trivial,” Stone said. “In this context, the argument is that the seriousness of Covid is such that to protect both the individual, and later the people they come in contact with, is sufficiently great to say ‘you can’t do this.’”
“There’s no question that preventing the spread of a deadly disease is a compelling interest,” Koppelman said. “If you can keep large groups from gathering indoors it’s the single most important thing you can do.”
Schwinn added that although people can disagree on the policy itself, “as far as the law, it’s pretty clear the governor has authority” to limit any type of congregation.
The professors said the question could focus on whether churches are comparable to grocery stores and other essential businesses, or if they are more like schools, concerts and baseball games, which have also been put on hold.
Oral arguments Friday in the Chicago-based Seventh Circuit did in fact center on whether church services are similar to essential businesses.
Horatio Mihet, one of the churches’ attorneys with the Florida-based Liberty Counsel, said employees of grocery stores and warehouses are working together all day, in close quarters.
“The employees are there for hours and hours of time. There’s no restrictions on them,” Mihet pointed out. “These places are actually more dangerous than a properly distanced church service.”
“The basic error that is being made in these comparisons is that some people assume that people are willing to change their behavior at Walmart but not at these church services,” he added. “People at church are the same people that go to Walmart. The virus doesn’t know what people are there for.”
Saying that churches haven’t even been given the chance to try out preventative measures in the same way that businesses have, Mihet further argued that “what matters is the proximity of the people.”
“There’s no reason why people can’t be distanced in a church the same as anywhere else,” he said.
Priyanka Gupta, an assistant attorney general for the state, argued Governor Pritzker was merely responding to the situation at hand and following guidelines given by the Centers for Disease Control and Prevention.
“It is helpful to look at the context in which the order was issued,” she said. “What we did know was that [Covid-19] was spreading quickly from gatherings and from people speaking and singing.”
Secular activities such as lectures and theaters received the same treatment as churches, Gupta said, adding that “there are numerous examples around the world of religious gatherings leading to outbreaks.”
Gupta said that manufacturing plants and retail stores have had to follow strict guidelines about how close employees can work to each other and for how long.
Mihet, as well as the judges on the panel, worried that although the state’s restrictions have eased since the complaint was filed, the governor could decide to go back to the original order if no injunction is in place to stop him.
“The governor has the burden of making it absolutely clear that he will not return to the allegedly wrong conduct,” Mihet said. “There’s no doubt that the governor has not had a change of heart.”
Gupta argued that the governor needs flexibility in reacting to new information about the outbreak.
“This is an emergent situation the likes of which the world has not seen before,” she said. “No matter what happens in the future the context is going to be important.”
As of Friday morning, Illinois had racked up a total of 130,603 Covid-19 infections and 6,285 deaths from the respiratory disease caused by the coronavirus.
The panel was comprised of U.S. Circuit Judges Frank H. Easterbrook and Michael S. Kanne, both Ronald Reagan appointees, and U.S. Circuit Judge David F. Hamilton, a Barack Obama appointee. The judges did not say when a decision on the preliminary injunction would be issued.