By Dave Simpson

Law360 (June 16, 2020, 9:15 PM EDT) -- The Seventh Circuit Tuesday backed an Illinois executive order limiting the size of religious gatherings to help slow the spread of COVID-19, ruling that churches are closer to concert halls and movie theaters, which are shuttered under the order, than to warehouses and grocery stores, which are less limited than religious institutions.

In a unanimous decision written by U.S. Circuit Judge Frank H. Easterbrook, the panel backed a lower court's decision not to tinker with Illinois Gov. J.B. Pritzker's executive order, which has now been softened along with other pandemic restrictions. Soup kitchens and housing for the homeless have been deemed essential because they keep people from starving or going without their medicine, the panel said, rejecting an argument by the two churches that are challenging the law.

"Those activities must be carried on in person, while concerts can be replaced by recorded music, movie-going by streaming video, and large in-person worship services by smaller gatherings, radio and TV worship services, drive-in worship services, and the Internet," the panel said. "Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways."

The order, which banned religious gatherings of more than 10 people, has since shifted to a recommendation, as the state deemed that the pandemic poses less of a threat than formerly, but the panel opted to consider the challenge from Elim Romanian Pentecostal Church and Logos Baptist Ministries anyway because it is still possible for the full order to be reinstated.

In any case, the state's argument, that churches are closer in many ways to the more-restricted movie theaters and concert halls, is better than the churches' argument that they are like grocery stores, warehouses, or soup kitchens, the panel said.

"It is not clear to us that warehouse workers engage in the sort of speech or singing that elevates the risk of transmitting the virus, or that they remain close to one another for extended periods, but some workplaces present both risks," it said "Meatpacking plants and nursing homes come to mind, and they have been centers of COVID-19 outbreaks. But it is hard to see how food production, care for the elderly, or the distribution of vital goods through warehouses could be halted."

In May, U.S. District Judge Robert W. Gettleman rejected the challenge, saying that the state's restrictions are rationally based on the need to slow the spread of COVID-19 in Illinois, and that there's no evidence Pritzker's order targeted religion.

The judge also scolded plaintiff Elim Romanian Pentecostal Church for holding services in violation of the order, saying its reply brief included photos of congregants failing to wear face coverings, against U.S. Centers for Disease Control and Prevention guidelines. The injunction the church seeks for the governor's order "would risk the lives of plaintiffs' congregants, as well as the lives of their family members, friends, co-workers and other members of their communities with whom they come in contact," he said.

Representatives for the parties did not immediately respond to requests for comment.

Other federal courts have taken a mixed approach to similar lawsuits. In April, a New Mexico federal judge ruled that an order barring places of worship from holding gatherings during the coronavirus pandemic does not violate an Albuquerque church's constitutional rights, but a Kentucky federal judge found a similar ban unconstitutional.

Texas Gov. Greg Abbott in late March issued an executive order classifying churches as "essential services" a day after a group of pastors challenged local government orders that prohibited in-person services to the Texas Supreme Court.

In May, the Trump administration threw its support behind a Virginia church's challenge to Gov. Ralph Northam's executive orders limiting in-person gatherings to help slow the spread of the coronavirus.

U.S. Circuit Judges Frank H. Easterbrook, Michael S. Kanne, and David F. Hamilton sat on the panel for the Seventh Circuit.

The churches are represented by Daniel Joseph Schmid, Horatio Gabriel Mihet and Roger K. Gannam of Liberty Counsel; and Sorin Adrian Leahu of Mauck & Baker LLC.

Pritzker is represented by Christopher Graham Wells, Hal Dworkin, Kelly C. Bauer, R. Douglas Rees, Sarah Jeanne Gallo and Sarah Hughes Newman of the Office of the Illinois Attorney General, Public Interest Division.

The case is Elim Romanian Pentecostal Church et al. v. Pritzker, case number 1:20-cv-02782, in the U.S. District Court for the Northern District of Illinois.

--Additional reporting by Celeste Bott, Michelle Casady, Khorri Atkinson, and Kevin Stawicki. Editing by Peter Rozovsky.

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