A day after a federal judge ruled Illinois Gov. JB Pritzker could constitutionally use emergency powers to restrict religious gatherings, the northwestern Illinois church that challenged the governor’s authority has indicated it will appeal.

On May 4, The Beloved Church, of Lena, filed a notice of appeal in Chicago federal court, indicating the congregation will ask the U.S. Seventh Circuit Court of Appeals to weigh in on questions of whether Pritzker’s actions in response to the COVID-19 pandemic violate Illinoisans’ constitutional rights.

“Governor Pritzker’s arbitrary 10-person limit applies only to churches but not to the many other businesses open in Illinois today, from liquor stores to lawyers to pet groomers,” said Peter Breen, attorney for the church, in a prepared statement. “Our constitution requires that churches receive at least equal treatment as any secular enterprise.

“Pritzker’s latest threat of jail for people of faith is outrageous, and we will seek immediate relief from the court of appeals to defend our clients.”

Breen referenced comments made by Pritzker on May 4 during his daily COVID-19 press briefing. During the briefing, Pritzker indicated he would defer to local police agencies to enforce his executive orders, and said it was not his intent for people to “go to jail.” But he added that those who are “persistently defiant” could risk being “put in jail.” The governor did not specifically reference church members or pastors, but his comments did closely follow a discussion of the church’s lawsuit.

The church’s notice of appeal came a day after U.S. District Judge John Z. Lee on May 3 rejected their arguments that Pritzker’s stay at home order discriminated against Christian churchgoers and other people of faith and violated their constitutional rights.

The church had sued Pritzker a few days earlier, asserting the governor’s executive orders, including his stay at home order and orders limiting the size of gatherings to fewer than 10 people, ran afoul of the First Amendment and other legal rights granted to churches and those practicing their faith.

Pritzker had ordered church buildings closed, along with theaters and other gathering places, as well as many businesses across the state, saying the closures are necessary to slow the spread of the novel coronavirus that causes COVID-19. He claimed he had the authority to enforce the closures under the state’s emergency management act.

The stay at home order divided activities within the state into “essential” and “non-essential” categories. Religious exercise was initially considered “non-essential” in both of the first iterations of the order.

Lee said the orders should be allowed because the governor’s oft-repeated goal of “saving lives” from COVID-19 takes precedence over a congregation’s right to gather and practice their religion.

“While Plaintiffs’ interest in holding large, communal in-person worship services is undoubtedly important, it does not outweigh the government’s interest in protecting the residents of Illinois from a pandemic,” Lee said. “Certainly, the restrictions imposed by the Order curtail the ability of the congregants of Beloved Church to worship in whatever way they would like. But this is not a case where the government has ‘ban[ned]’ worshippers from practicing their religion altogether, as Plaintiffs insist.”

The judge gave particular weight to Pritzker’s revision of the stay at home order, to specifically allow religious gatherings of 10 or fewer and to encourage online worship services or “drive in” services in church parking lots.

“Such allowances go a long way towards mitigating the harms Plaintiffs identify,” Judge Lee wrote.

The judge also specifically rejected the church’s comparison of itself to big box retailers.

He said a more apt comparison would be to schools or theaters, which Pritzker also ordered closed.

“This reinforces the conclusion that the order is not meant to single out religious people or communities of faith for adverse treatment,” Judge Lee wrote.

Since the impact of the order cuts across every level of society, Lee wrote churches should not expect special treatment.

The judge also specifically rejected the church’s contention Pritzker had overstepped his legal authority, by extending his emergency declaration – and thus his emergency powers – beyond 30 days. The church and other plaintiffs in other challenges have argued the Illinois Emergency Management Act only allows the governor to wield emergency powers for 30 days. Beyond that, they argue, the law requires the governor to secure permission from the state legislature.

The governor, however, has asserted the law gives him the power to declare emergencies and wield broad emergency powers for as long as he deems an emergency still exists, provided he reevaluates the emergency every 30 days.

Judge Lee sided with the governor. He said the governor’s emergency powers will end when “facts on the ground … no longer justify such findings.”

“… Even the foundational rights secured by the First Amendment are not without limits; they are subject to restriction if necessary to further compelling government interests – and, certainly, the prevention of mass infections and deaths qualifies,” Lee wrote.  “After all, without life, there can be no liberty or pursuit of happiness.”

The church is represented in the action by Breen and other attorneys from the Thomas More Society, of Chicago.