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Liberty Counsel presented oral argument last Friday to a three-judge panel of the Seventh Circuit Court of Appeals on behalf of Elim Romanian Pentecostal Church and Logos Baptist Ministries in their federal lawsuit against Illinois Gov. J.B. Pritzker for his unconstitutional executive orders discriminating against churches. The judges did not say when a decision on the preliminary injunction would be issued. 

Judges David Hamilton, Frank Easterbrook and Michael Kanne questioned Liberty Counsel Vice President of Legal Affairs and Chief Litigation Counsel Horatio Mihet and Illinois Assistant Attorney General Priyanka Gupta for 40 minutes. 

The two main issues before the Court of Appeals is whether the case is moot since Gov. Pritzker repealed ALL restrictions on churches a few hours before having to respond to the U.S. Supreme Court, and the merits of the case under the First Amendment. 

On the mootness issue, the Assistant Attorney General for the State of Illinois was asked twice Friday by the judicial panel of the Seventh Circuit whether Illinois Governor J.B. Pritzker would never again restrict or ban church meetings…  

“Is the governor willing to make an iron-clad commitment not to rescind the current order [allowing churches to open and operate unfettered by government restriction]?” asked one of the judges in Friday’s oral arguments. 

“No, your honor, we are not,” replied Gov. Pritzker’s attorney. 

Then later, one judge asked the governor’s attorney: 

“Would you be willing to agree and to say that you will not enforce or go back to the original order, [restricting churches] without coming to this court to seek permission?” 

Again, Assistant Attorney General Gupta responded,  

“We are not willing to do this at this time.” 

The assistant attorney general’s comments before the court on behalf of Gov. Pritzker confirm what Liberty Counsel has long feared. The governor can and will impose the same or harsher church restrictions at his own discretion in the future if he is not restrained by a court. On this issue, the argument could not have gone better for Liberty Counsel’s presentation to the court.  

On the First Amendment claim, Liberty Counsel pointed out that the governor’s executive order clearly discriminated against religion. Under the order, there is no limit on the number of people a church may feed, shelter overnight, or provide the “necessities of life,” which could include helping them to apply for unemployment. 

Incredibly, the churches could feed and shelter 500 people in the sanctuary, but as soon as the pastor conducted a short worship service, or even prayed over the meal, the 10-person limit applies.  When one of the judges asked Assistant AG Gupta about this provision, the attorney did not have a good answer – because there is none! 

An outright ban on church services, or a restriction on the number of people allowed to attend a religious service, while not having a cap on the number that can attend a non-religious gathering in the same building, violates the First Amendment.  

In reference to comparing churches to other non-religious commercial operations, Mihet argued employees in warehouses, supermarkets, and box centers work together all day in close quarters. Mihet stated, “The employees are there for hours and hours of time. There’s no restrictions on them. These places are actually more dangerous than a properly distanced church service. The basic error that is being made in these comparisons is that some people assume that people are willing to change their behavior at Walmart but not at these church services. People at church are the same people that go to Walmart. The virus doesn’t know what people are there for. There’s no reason why people can’t be distanced in a church the same as anywhere else,” said Mihet.  

While Gov. Pritzker removed ALL restrictions on churches and houses of worship when he was called to account to the Supreme Court, the danger is he could easily reimpose the same, or even harsher, restrictions. The governor needs to be restrained by the court. 

Liberty Counsel Founder and Chairman Mat Staver said, “The oral argument went well for the churches and not so well for Gov. J.B. Pritzker. It was clear that the governor was not willing to disavow his unconstitutional executive order. And it is also clear the state has no reason for allowing non-religious meetings with an unlimited number of people in churches but then restricting the number in attendance to only 10 when a religious service is conducted.”