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Tuesday, May 5, 2020

Religious Services and Stay at Home Orders

EO-32 and Religious Exercise

On April 30, 2020, Governor Pritzker issued Executive Order 2020-32 (EO 2020-32), which is effective from May 1, 2020 through the end of May 2020. Like the Governor's previous "stay at home" order, people are required to stay home unless they are engaging in essential activities such as working at essential businesses, conducting essential government functions, or engaging in essential activities. EO 2020-32 did modify certain provisions in the previous order, some of which we reported on last. One of the changes was to expressly allow people to engage in the free exercise of religion as an "essential activity," but with restrictions. 

EO-32 states that people may leave the home: 
f.  To engage in the free exercise of religion. To engage in the free exercise of religion, provided that such exercise must comply with Social Distancing Requirements and the limit on gatherings of more than ten people in keeping with CDC guidelines for the protection of public health. Religious organizations and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregations.
Under the new EO-32 that took effect on Friday, May 1st, religious institutions are encouraged to use online or drive-in services. Religious institutions can provide in-person services, however, if they meet social distancing requirements. That includes limiting the number of people to 10, and requiring people to maintain at least a six foot distance from others, wash hands with soap and water for at least 20 seconds or use hand sanitizer, and wear face coverings. 

Recent Lawsuit by Beloved Church

The addition of this language to EO-32 may have been in response to a recent lawsuit filed by the Beloved Church in Lena, Illinois against Governor Pritzker, the Administrator of the Stephenson County Health Department, the Stephenson County Sheriff, and the Village of Lena Police Chief, seeking an injunction to allow the church to conduct worship services. The Church's complaint claims that EO 2020-32 violated the church’s federal and state constitutional rights, including the First Amendment's Free Exercise Clause, the Illinois Religious Freedom Restoration Act, the Emergency Management Act, and the Illinois Department of Health Act. The Church had filed its complaint after being served with a cease and desist notice from the Stephenson County Department of Health.

On April 30th, the Church filed a motion for a temporary restraining order (TRO) asking for emergency relief. On May 3, 2020, Federal District Court Judge John Lee denied the church’s motion for a temporary restraining order (TRO) and ruled that EO 2020-32 is constitutional and does not target religious organizations for differential treatment. 

First, Judge Lee acknowledged the foundational rights secured by the First Amendment, but noted that these rights are not limitless and can be subject to restriction if necessary to further compelling government interests. Judge Lee cited two historical cases, which stated that the right to practice religion freely does not include liberty to expose the community to disease, since the community has a right to protect itself against disease epidemics. 

Next, Judge Lee found that EO-32 "undoubtedly advances the government's interest in protecting Illinoisans from the pandemic" and that the EO did not treat religious worship services differently than similar uses such as schools, movie theaters, and concert halls, rejecting the Church's argument that religious services should be treated the same as grocery stores, manufacturing plants, and other essential businesses. 

Judge Lee also rejected the Church's argument that the Governor exceeded his authority by declaring a disaster declaration that exceeds 30 days, finding that there may be disasters that "pose a threat that may persist for long periods of time and certainly beyond a single 30-day period." 

Judge Lee further rejected the argument that the order was, in effect, a "quarantine" under the meaning of the Illinois Department of Health Act, distinguishing between a "stay at home order" that allows people to leave their homes for essential services and a true "quarantine" that requires total isolation. 

Finally, Judge Lee determined that the EO allows alternative worship services such as small group worship or meetings of 10 or less persons and drive-in services, unlike the Kentucky order found invalid by the Sixth Circuit Court of Appeals.  

Lawsuits in Other States

Similar lawsuits have been filed in other states. For example, in Kansas, the state's Supreme Court upheld the Governor’s executive order banning religious services of more than 10 people. However, a federal judge in Kentucky granted a temporary restraining order filed by a church against Louisville’s Mayor, who banned an Easter Sunday drive-in service, declaring the mayor's decision "unconstitutional." Also, after issuing an arrest warrant for a Florida pastor who refused to cancel packed services and obey social distancing orders, Governor DeSantis issued a directive exempting religious gatherings from Florida’s stay-at-home-order.

Religious Exercise and the Federal Government
At the federal level, Attorney General William Barr has made it clear that the federal government will be investigating state and local orders or ordinances to determine whether they exceed state or local authority by infringing religious liberties. Barr issued a memo directing Department of Justice (DOJ) attorneys to monitor, investigate, and vigilantly safeguard those rights. He acknowledges that state and local government may impose temporary and reasonable restrictions on civil liberties to protect the public,  but reminds officials that the Constitution is not suspended during emergencies, and the First Amendment and federal statutes prohibit imposing special restrictions on religious activities that do not also apply to similar nonreligious activities.

The DOJ also recently filed a Statement of Interest in support of a Mississippi church that held worship services in the church parking lot where congregants sat in their cars with rolled-up windows listening to their pastor preach over their car radios. The City of Greenville, which allowed citizens to attend a drive-in restaurant with open windows, fined each congregant $500 for attending parking lot services. The DOJ argued that by singling out churches as the only essential service that may not operate despite following all social distancing guidelines, the City did not act evenhandedly, since local government social distancing restrictions on places of worship must be narrowly tailored to advance a compelling interest.
Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink


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