Pressing pause on pandemic powers

The Supreme Court has another chance to reckon with how much states can infringe on First Amendment rights during the pandemic. Two Chicago-area churches on Wednesday asked the justices to review a federal appeals court decision that upheld Democratic Gov. J.B. Pritzker’s COVID-19 orders restricting the size of worship services. It could make a difference for rulings in lower courts across the country.

Elim Romanian Pentecostal Church and Logos Baptist Ministries’ petition asks the justices to resolve a conflict among federal appellate circuits over how to weigh governors’ lockdown orders in response to the pandemic. Pritzker’s order restricted worship gatherings to 10 people while giving many retail and manufacturing businesses much more leeway. He later rescinded the order but could renew it at any time.

Two circuits have ruled that treating religious gatherings differently violates the First Amendment. In Roberts v. Neace, the 6th U.S. Circuit Court of Appeals paused a ban on in-person services in Kentucky. And in First Pentecostal Church v. City of Holly Springs, the 5th Circuit granted similar emergency relief from a Mississippi city’s COVID-19 restrictions.

But two other circuits took a more deferential approach toward state governors. In Elim Romanian Pentecostal Church v. Pritzker, the 7th Circuit this summer upheld Pritzker’s orders. Similarly, in the cases of two churches, South Bay United Pentecostal Church and Harvest Rock Church, the 9th Circuit backed California Gov. Gavin Newsom’s health rules barring indoor worship for most state residents. Neither decision was unanimous.

While the Supreme Court often reviews cases with contradictory circuit decisions, there’s no guarantee it will hear this case. In late May, the court narrowly declined to take up South Bay United Pentecostal Church v. Newsom. Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas would have blocked California from enforcing its limits on corporate worship while the appeal moved forward. Chief Justice John Roberts sided with the liberal wing of the court, comparing restrictions on worship to those on lectures, concerts, movie showings, and spectator sports.

But circumstances have changed since then, said Liberty Counsel’s Mat Staver, who represents the Romanian churches. In addition to the disagreement among appellate circuits, at least 73 trial courts have split over the question of balancing executive powers with religious liberty, he said.

Staver noted the South Bay church in California requested an emergency injunction, which carries a heavy legal burden. But the Romanian churches are appealing a court’s final ruling, meaning the justices will decide whether to take it based on the circuit split and the issues at stake.

“Some courts have read too much into the South Bay decision,” Staver said, noting it holds no precedent for lower courts.

The city’s charges of disorderly conduct and threats of public nuisance actions have not daunted the pastors, Staver said. They’ve known worse: Both experienced persecution in communist Romania before emigrating to the United States.

“They’ve seen this pattern happen, so when they made the decision to open, they put their hand to the plow,” Staver said. “They’re not looking back.”