Today, the Seventh Circuit Court of Appeals ruled in Elim Romanian Church, et al. v. Pritzker that Illinois’s COVID restrictions, which limited the size of public gatherings to ten people, did not violate the First Amendment.
By way of background, several Illinois churches had sued the State in federal court arguing that Governor Pritzker’s executive order violated their rights under Free Exercise Clause of the First Amendment. After the trial and appellate courts denied them immediate injunctive relief, they made a final appeal to the United States Supreme Court at the end of May. But after the Supreme Court ordered Illinois to respond to the churches’ petition, Governor Pritzker decided to convert the restrictions into mere guidelines. Illinois was thus able to argue that since the restrictions were now just guidelines there was no longer a case for the Supreme Court to decide. And on Friday, May 29, 2020, that is precisely what the Supreme Court concluded when it denied the Illinois churches’ application for immediate injunctive relief. About the same time, churches in California filed a similar suit, South Bay United Pentecostal Church, et al. v. Newsom. But rather than use the same tactic that Governor Pritzker did, Governor Newsom of California decided to keep his restrictions in place—allowing the Supreme Court to decide whether they passed constitutional muster. Ultimately, the Supreme Court, in a 5-4 split decision, ruled against the churches. Chief Justice Roberts, writing for the 5-4 majority, held that California’s restrictions on places of worship were “consistent with the Free Exercise Clause of the First Amendment.” The Court held that places of worship were not entitled to the same treatment as “grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
After the Supreme Court’s decision in the South Bay case, the Illinois churches still had to argue their case before the Seventh Circuit Court of Appeals. But now they had to overcome two significant hurdles. First, they had to overcome the State’s argument that their claims were mooted by Governor Pritzker’s decision to make his restrictions mere guidelines. And second, they had to overcome the Supreme Court’s reasoning in the South Bay case. While the churches were able to overcome the first hurdle, they were not able to overcome the second. The three judge panel of Seventh Circuit Judges Easterbrook, Kanne, and Hamilton followed the Supreme Court’s lead and wrote “[w]e line up with Chief Justice Roberts.” Chief Justice Roberts had written the 5-4 decision in the California case and had concluded that churches are not entitled to the same treatment as grocery stores, banks, and laundromats because people do not congregate in large groups or remain in close proximity to each other in them. And because Governor Pritzker’s executive order treated religious gatherings like other public gatherings such as funerals and weddings, the Seventh Circuit held that the executive order did not violate the churches’ claims under the First Amendment.
It is clear that the Supreme Court’s decision in the South Bay case will continue to affect the viability of other free exercise claims which churches have filed to challenge COVID orders in other states. The South Bay decision is also reminder that the Free Exercise clause, as currently interpreted, does not provide religious exercise the robust protection many (including some current Supreme Court justices) believe its text demands. Ever since the Supreme Court decided Employment Division v. Smith in 1990, the courts have generally interpreted the Free Exercise Clause as not providing religious people or institutions any special right to be exempt from neutral laws of general applicability. And as a result, the Free Exercise Clause has been applied simply to ensure that religious people and institutions are treated on an equal basis with their secular counterparts. This is why statutes like the Religious Freedom Restoration Act (RFRA) and the Religious Land Use & Institutionalized Persons Act (RLUIPA) were necessary and remain so important.
In fact, yesterday the Supreme Court issued a landmark decision in a Title VII (employment discrimination) case that has major religious liberty implications. Justice Gorsuch, writing for the majority, called RFRA a “super statute” that supersedes the normal operation of other federal laws. The same is true of RLUIPA and state RFRA’s. It is clear that these statutes are only going to grow in their importance to religious institutions, business, and assemblies.
At Dalton & Tomich, our goal is to help religious institutions better understand and assert both their constitutional and statutory rights. In many cases, statutory claims may prevail when constitutional claims fail. If you want to better understand what rights you may have under these super statutes, please contact us.