Cites memo from appellate prosecutor’s office casting doubt on order’s constitutionality
By PETER HANCOCK
Capitol News Illinois
phancock@capitolnewsillinois.com
SPRINGFIELD – A church in northern Illinois has filed a federal lawsuit seeking to block part of Gov. JB Pritzker’s stay-at-home executive order, and especially its restrictions on public worship services.
The suit was filed by the Thomas More Society, a conservative legal advocacy group, on behalf of Pastor Steve Cassell of Most Beloved Church in Lena, in Stephenson County. The complaint argues that the order violates several provisions of both the state and federal constitutions.
“The spiritual well-being of the people of Illinois is just as important as their temporal well-being during these dark times,” Peter Breen, vice president and senior counsel at the Thomas More Society, said in a news release. “Keeping liquor stores open but indefinitely shutting down churches and religious ministries violates our constitution and our most basic liberties. If liquor stores are ‘essential,’ so are churches.”
The church has said it plans on holding services Sunday, despite the order, although details of how that service will take place were still being worked out Friday.
The latest stay-at-home order that went into effect Friday has been amended to allow for small church services – limiting gatherings to 10 or fewer people and requiring social distancing.
The lawsuit cites an April 21 memo from David J. Robinson, chief deputy director of the Illinois Appellate Prosecutor’s Office, to Director Patrick Delfino, in which he argues that any local prosecutors who try to enforce the order, especially as it applies to worship services, would likely lose in court.
“It appears that the stay-at-home recommendations and social distancing are great recommendations,” Robinson stated in the memo. “Those things should be practiced; but criminal enforcement of the EO is a different question. My research leaves me less than confident that a reviewing court will hold that the Governor has the authority close businesses, bar attendance at church services and assemblies in excess of ten citizens (particularly if they are assembling to redress grievances).”
Pritzker issued the first stay-at-home order on March 9 directing people to stay home as much as possible except for conducting essential business. That order also closed what were deemed nonessential businesses.
That order was originally set to expire April 7, but on April 1 he issued a second order extending it through the end of that month, and last week he announced he would extend the order further, with some modifications, through May 30.
Pritzker has said that he will leave it up to local law enforcement and local prosecutors to enforce the order at their discretion. But the Robinson memo notes that the Illinois Emergency Management Act, which is the basis of the executive orders, specifically states that the law may not be used to affect the responsibilities of police forces or firefighting forces, and therefore the orders may go beyond the governor’s statutory authority.
The church lawsuit argues that the order infringes on rights guaranteed by both the Illinois and U.S. Constitutions – specifically the free exercise of religion, freedom of speech, freedom to assemble and the guaranty of due process of law.
Those are all considered “fundamental rights” under the law, which means any attempt to restrict them will be judged under a “strict scrutiny” standard. Under that standard, the government must show that its actions are based on a compelling state interest, that the action is narrowly tailored to achieve that interest and that the action is the least restrictive means of accomplishing the stated interest.
The lawsuit concedes that the state has a compelling interest in preventing the spread of COVID-19, but it argues that the executive orders are not narrowly tailored, nor are they the least restrictive means of achieving the state’s objective.
Asked about the lawsuit Thursday during his daily COVID-19 media briefing, Pritzker said most faith leaders in Illinois have found creative ways to hold services by video or telephone conferences, and that the lawsuit was “a bit of an outlier.”
“But everybody has the right to sue and, you know, we’ve seen in multiple states now, people have filed lawsuits on various things having to do with the stay at home order, but we’re going to keep doing what we need to do to keep people safe,” Pritzker said.
