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.”
Both churches did, however, hold services the Sunday after their lawsuit was filed, with Elim receiving a $500 fine for disorderly conduct from the city.
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.
