Liberty Counsel posted this update for the Illinois parishes as of last night:
The U.S. Supreme Court has chosen not to give an opinion on behalf of Elim Romanian Pentecostal Church and Logos Baptist Ministries since Governor J.B. Pritzker removed all restrictions on churches and houses of worship in Illinois last night.Justice Kavanaugh “referred to the Court” for the motion for emergency injunction, meaning the case was considered by all nine Justices. The High Court stated, “The Illinois Department of Public Health issued new guidance on May 28. The denial is without prejudice to Applicants filing a new motion for appropriate relief if circumstances warrant.” In other words, the Court did not deny the motion based on the merits, but instead that the door remains open if Illinois imposes restrictions on houses of worship.
. . . Liberty Counsel Founder and Chairman Mat Staver said, “We are pleased that now there are no restrictions on houses of worship in Illinois. The Supreme Court made clear that if Gov. Pritzker changes course and reimposes restrictions on houses of worship, the doors of the Court remain open. The governor’s orders have been unconstitutional from the moment they were issued. It’s unfortunate that we had to drag Gov. Pritzker kicking and screaming to the High Court in order to make him remove these unconstitutional restrictions. Now justice has prevailed. This is a shot across the bow to any governors that if they violate the First Amendment right of houses of worship, the Supreme Court is watching and ready to remedy these unconstitutional actions.”
This is probably an appropriate move by the court, since the reason for injunctive relief is to remove an immediate harm to the plaintiff, and Gov Pritzker in fact removed this harm. The court has said that if the harm returns, the churches may reapply for relief.
The petition from the South Bay United Pentecostal Church in California is a slightly different matter, since although Gov Newsom issued relaxed restrictions for churches, they do continue and can at least theoretically be enforced.
As far as I can tell, almost every state has issued enforceable "guidelines for houses of worship" that impose additional requirements over and above restrictions for other, similar indoor activities, such as arenas and auditoriums. In some cases, they try to find ways to forbid communion in any form. The whole idea of separate "guidelines for houses of worship" issued by a state authority raises constitutional issues that could potentially be addressed in a case like this.
I received the following e-mail from the Thomas More Society, which is sponsoring that church's appeal, at 6:15 last night:
On Wednesday, the Supreme Court ordered California to file its response to our petition by Thursday evening, so we know they are considering our petition. Now we are waiting to learn whether they will give us relief tonight or tomorrow – or ever.So far, I haven't found any reference to the California petition's current status on the web. This went via Justice Kagan rather than Justice Kavanaugh, so it is apparently following a somewhat different path.
What's frustrating is that even though prominent bloggers like Glenn Reynolds and William A Jacobson are constitutional law professors, of all things, they've taken no interest in these cases, and the mainstream outlets have taken even less. Constitutional law professors at prestigious universities are, of course, members of the privileged elite, no matter how they profess they aren't.
UPDATE: The court rejected the request, with Chief Justice Roberts joining the liberal majority:
A divided supreme court on Friday rejected an emergency appeal by a California church that challenged state limits on attendance at services that have been imposed to contain the spread of the coronavirus.UPDATE: On further reflection, what happened here took place over the space of a week, and it boils down to two governors backing down on prohibitions against in-person celebrations, or highly restrictive provisions, in he face of appeals to the US Supreme Court. In both cases, the governors relaxed provisions to the extent that, in their judgment, the court would see fit to kick the can down the road. Their judgment turned out to be correct. But the bottom line is that secular authorities so far are recognizing they are vulnerable to legal redress, at least past a certain point.Over the dissent of the four more conservative justices, Chief Justice John Roberts joined the four liberals in turning away a request from the South Bay United Pentecostal church in Chula Vista, California, in the San Diego area.
. . . Roberts wrote in a brief opinion that the restriction allowing churches to reopen at 25% of their capacity, with no more than 100 worshipers at a time, “appears consistent” with the first amendment.
Roberts said similar or more severe limits apply to concerts, movies and sporting events “where large groups of people gather in close proximity for extended periods of time”.
Justice Brett Kavanaugh wrote in dissent that the restriction “discriminates against places of worship and in favor of comparable secular businesses. Such discrimination violates the first amendment.”
In a similar circumstance, Howard County, MD sought effectively to prohibit communion in church services, but backed down after two days in response to concerns from the Roman Catholic Archdiocese of Baltimore.
UPDATE: On yet further reflection, it seems to me that the attorneys for the churches got their clients what they needed in a highly successful strategy. The churches started the litigation unable to have in-person services, saying they were willing to abide by state regulations if they were able to have them. Under the threat of a Supreme Court case that could force the governors' hands, the governors backed down, and the churches got the ability to celebrate in-person services under the constraints they said they would accept.
Some people clearly hoped for a landmark Supreme Court action of some sort. But I don't see the court making a landmark ruling based on a week-old set of circumstances. The bottom line is that civil authorities see the downside of trying to restrict church services.
