Targeted with a “cease and desist order” and fearing criminal or civil actions, officials at the Beloved Church in northern Illinois’ Stevenson County filed a federal lawsuit accusing the state of violating members’ First Amendment right to religious freedom by banning church services.
The Rev. Steve Cassell, represented by the Thomas More Society, asked U.S. Judge John Lee to order state officials not to enforce the ban ordered by Gov. J.B. Pritzker to limit the spread of the coronavirus.
Instead, Lee upheld the governor’s authority to restrict church services, holding that freedom of religion is “not without limits” and “subject to restriction if necessary to further compelling government interests” that include “the prevention of mass infections and death.”
Lee’s decision sheds some light on the legal back-and-forth now underway in connection with the governor’s three lockdown orders that have dramatically restricted citizen and business freedoms and wrecked the state’s economy.
A federal court decision in Kentucky overturned its governor’s ban on religious services. Pritzker’s ban also might have been stricken if he had not modified it after the lawsuit was filed by permitting drive-in services and gatherings of no more than 10 people observing social-distancing rules.
Previously banned drive-in services were now “encouraged,” Pritzer said.
Indeed, Pritzker tried unsuccessfully to win a dismissal of the lawsuit because he said his modifications made the issue moot. Lee disagreed, noting that church members “take umbrage at the restrictions” that remained after Pritzker issued his April 30 emergency order.
While ruling against church members, the judge expressed sympathy for their importance of their position.
“It is not by accident that the right to exercise one’s religious beliefs is one of the core rights guaranteed by our Constitution,” he said, noting that drive-in services or restricted gatherings are “imperfect substitutes for an in-person service where all 80 members of Beloved Church can stand together, side by side, to sing, pray and engage in communal fellowship.”
At the same time, Lee wrote, “the Constitution does not compel courts to turn a blind eye to the realities of the COVID-19 crisis,” the kind of circumstance where “the traditional tiers of constitutional scrutiny do not apply.”
Quoting from decades-old legal precedents, Lee wrote that “the right to practice religion freely does not include liberty to expose the community” to a communicable disease.
“Furthermore, (that principle’s) reach ends when the epidemic ceases; after that point, government restrictions on constitutional rights must meet traditionally required tests,” he wrote in his 27-page decision.
In addition to citing legal precedents, Lee said Pritzker’s restrictions “would likely withstand scrutiny under the First Amendment’s free-exercise clause” if they meet a “compelling state interest” or are written in a neutral way and “supported by a rational basis.”
Church lawyers argued that churches should be allowed open attendance because “retailers and food manufacturers” enjoy that liberty. But Lee said churches are not analogous to retailers because congregants worship and socialize together, while shoppers “purchase necessary items and then leaves as soon as possible.”
“A more apt analogy is between churches and schools,” Lee wrote.
In addition to his restriction on religious activities, Pritzker has canceled the rest of the school year.
Prior to Pritzker’s last-minute modifications, Illinois was one of only 10 states that entirely banned religious services.
Thomas More Society lawyer Peter Breen characterized Pritzker’s modifications of the restrictions as a victory but said he’ll appeal Lee’s decision upholding Pritzker’s emergency order.
In ruling as he did, the judge accepted the governor’s worst-case-scenario warnings about the extent of the coronavirus, a position that has drawn dissent.
Noting that “over 60,000 Americans have died” from the coronavirus, Lee said “that is more than died” from the attacks on Pearl Harbor, the 9/11 attacks and the Battle of Gettysburg. Further, quoting Pritzker, Lee said that if the governor’s restrictions are not upheld, “the number of deaths from COVID-19 would be 10 to 20 times higher.”
So far, roughly 2,500 Illinois residents have died from the coronavirus.
The Beloved Church held services last Sunday and Cassell said he would do so again this coming Sunday, despite the governor’s pledge to seek local law-enforcement intervention.
In a related matter, Lee also addressed the key issue that came up in a state lawsuit filed against Pritzker by Republican state Rep. Darren Bailey of Henry County. In that case, the trial judge questioned whether Pritzker had the authority to call an unlimited number of 30-day emergencies in the face of an statutory language that says the governor may invoke emergency powers “for a period not to exceed 30 days.”
Pritzker’s lawyers contend that there are no limits on his emergency powers, and Lee agreed.
He said emergency events “may persist for long periods of time” and that it is “difficult to see why the Legislature would recognize these long-running problems as disasters, yet divest the governor of the tools he needs to address them.”
Lee said “once an emergency has abated,” the “governor’s emergency powers will cease.”