While a number of cases have reached the U.S. Supreme Court challenging government pandemic restrictions that limit churches’ and members free exercise of religion, Elim Romanian Pentecostal Church v. Pritzker presents direct legal conflict between jurisdictions (traditionally the primary basis for Supreme Court hearing) and raises crucial additional questions that need resolution by the U.S. Supreme Court, to re-protect and strengthen our first and most important liberty.

For these reasons, IFI has joined an Amicus Brief in support of Elim Romanian.

Until 1990, the U.S. Supreme Court had rightly afforded the highest level of protection to our first freedom, the free exercise of religion.  In order for actions of government to restrict free exercise of religion, the U.S. Supreme Court applied a standard called strict scrutiny, under which the government had to prove: 1) a compelling state interest, and 2) that any restriction was narrowly tailored to actually accomplish that interest.

Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports.  In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens.  ~George Washington.

In addition to other law, such as tax exemption, and housing allowance for “ministers of the gospel”, the Church’s freedom to gather and worship is protected no less than four times in the First Amendment alone, forbidding government from: establishment of religion, and prohibition of free exercise, speech and assembly.

However, in its decision in Employment Division v. Smith, the U.S. Supreme Court decided that the Constitution meant something different than it had for over a century, and reduced the standard to “facially neutral and generally applied,” which demoted free exercise of religion to the same level as any other government restriction on freedom.

In response, Congress and 21 states including Illinois (but not California, Nevada or New York, the subjects of the cases related to Elim) passed Religious Freedom Restoration Acts to restore the strict scrutiny standard.  In the following 30 years, these laws have been challenged and weakened, and the Church in 29 other states has gone without this important extra protection.

Several Justices; a potential majority, have recently signaled the desire to correct this error. Elim is the best current vehicle for the Court to restore this most important freedom.

Earlier in the pandemic, a number of challenges to government restriction on free exercise rights were presented in multiple federal circuits, and largely rejected (e.g., Calvary Chapel Dayton Valley, Nevada v. Sisolak).  Unwilling to intervene the U.S. Supreme Court denied appeals, even in an earlier version of Elim v. Pritzker (which has been renewed in this case).

“…this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School…Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”  ~Justice Antonin Scalia, Dissent in Obergefell v. Hodges

The make-up of the High Court has changed for the better since Justice Scalia’s assertion that there was “not a single evangelical Christian,” (including himself), and even since this recent unwillingness to defend the Church’s Constitutional liberty amidst often onerous COVID restrictions.  To God’s glory, President Donald J. Trump was able to make 3 apparently sound appointments, including one protestant (Gorsuch, Episcopal – replacing Scalia) and possibly even an evangelical Catholic, in Justice Amy Barrett.

Accordingly, the U.S. Supreme Court has changed course in Roman Catholic Diocese of Brooklyn vs. Cuomo and Southbay United Pentecostal Church v. Newsom, from owing “significant deference to politically accountable officials,” to now even Chief Justice John Roberts (for a 6-3 majority in Southbay) conceding that such “deference, though broad, has its limits.”

This change creates a conflict between rulings and federal jurisdictions, which is one of the primary reasons for the U.S. Supreme Court to grant a hearing (the request for the U.S. Supreme Court to hear a case is called a “Writ of Certiorari”).

The amicus meaning “friend,” (of the court) brief IFI has joined, encourages a ruling on several additional key issues, including:

• Religious liberty should be applied to the community, or the Church corporately, not just to individuals. This element of religious exercise has greatly eroded to the extent that the Court has been unwilling to even define “religion.”
• Churches must have the same exceptions as “essential” services.
• Exceptions to restrictions, even with a compelling interest (i.e., reducing COVID spread), must be no worse for religious practice and organizations than for comparable “secular” ones. (Really, such exceptions should be even greater for First Amendment protected classes. One might say that the U.S. Constitution has pre-determined them to be “essential.”)
• Limits on religious practices and institutions should require the least restrictive means possible, and that means should be rationally calculated to actually achieve the compelling state interest. This is a request to return completely to the strict scrutiny test.

In the more recent COVID cases, the majority signaled a potential return to the historic strict scrutiny standard (maximum Constitutional protection) for free exercise of religion, requiring that New York and California prove their regulations, which obviously target religion for differential treatment, are narrowly tailored to achieving a compelling government interest (reducing COVID spread).

When the righteous are in authority, the people rejoice;
but when a wicked man rules, the people groan. ~Proverbs 29:2

While the 6-3 majority coalition in Southbay is very fragmented, with five different opinions on the outcome (4 separate concurrences from the majority: Roberts, Thomas, Gorsuch, Alito, Kavanaugh, and Barrett, and one dissent by the usual liberal justices: Kagan, Sotomayor, and Breyer), it appears that 5 to 6 Justices may favor a return to the strict scrutiny standard. 

In this case, these new Justices have already established a desperately needed check upon the ultra-liberal extremist control in the executive and legislative branches.  Also encouraging is the Chief Justice’s affirmation of his loyalty to the Constitutional text in refusal to preside over a proceeding to remove a former president from his former office.

Nonetheless, all but two of the members of this same Court have also shown a willingness to punt the Constitution in the face of pressure in the Texas v. Pennsylvania election challenge.

The Governor, using Illinois taxpayer dollars (i.e., the Attorney General’s office – they should be defending the people) to defend his restriction of their rights, has stalled this case at every turn by:

• delaying response until the last possible deadline (i.e., at 10:00 p.m. on the night before the Supreme Court was to rule on Elim Pentecostal Church’s emergency appeal to open for Easter)
• not responding to Elim’s petition for Certiorari, until the Court ordered him to file a response
• re-using arguments of mootness already rejected by the Court in Roman Catholic Diocese (the Governor changed his Executive Order at the last moment and then responded that Elim was no longer being harmed).

There will no doubt be numerous other attacks, both philosophical and political, every step of the way, against this Court, with a majority who has expressed a philosophy of solid textual interpretation of the Constitution, compatible with this Nation’s historic religious heritage.

This is major progress, but there is yet a long way to go for a Court which has for the past 48 (out of 245) years enshrined a right to murder children before they are born.

We must, must, must constantly uphold them in prayer.

Pray every day that:

• God will change the hearts of those Justices who have been unwilling to protect and defend the broad freedom of religion clearly given in the First Amendment,
• He will influence changes of bad legal reasoning,
• He will give great courage to stand to those on the Court who already agree,
• Elim will become the ultimate Religious Freedom Restoration Act, correcting previous wrong denial of freedom by the Court, and
• Such a reversal will lead to other reversals of bad law, such as Roe v. Wade.

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Written by James M. Odom, Esq.
Senior Policy Analyst, The Illinois Family Institute

Our founders were so sophisticated in their understanding of religion and civil government, that they secured this critical inalienable right given by the Creator to all mankind, as the very first freedom to be protected by the U.S. Government.

Our Constitution was made only for a moral and religious people.
It is wholly inadequate to the government of any other.
~John Adams, 2^nd President of the U.S.A.

This is why the Illinois Family Institute has joined a friend of the court (“amicus”) brief supporting Catholic Social Services in Fulton v. City of Philadelphia, 922 F.3d 140 (3d Cir. 2019), just argued before the Supreme Court of the United States.

The City of Philadelphia wants same sex relationships to be universally accepted, regardless of religious belief, and has therefore prohibited foster children from being placed with a Catholic organization that has been serving children in this way for 223 years, because their religious practice prevents them from placing children with same-sex couples.  Though, incidentally the organization never actually refused a same-sex placement. They refer them elsewhere.

At the federal level, the courts generally enforce the First Amendment by requiring 1) a compelling government interest, and 2) the least restrictive means narrowly tailored to actually achieve that interest before allowing a government to infringe Constitutional rights. This is referred to as the strict scrutiny test.

While it has generally been accepted since the ratification of the 14^th Amendment that the federal government would also defend rights enumerated in the U.S. Constitution against the actions of State and local governments, the U.S. Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990), reduced this protection by ruling that government actions not targeted specifically against religion, or those called “generally applicable,” do not prohibit the free exercise of religion.

This has enabled state and local governments to tailor laws to limit the free exercise of religion by simply outlawing religious practices that they dislike, for everyone, rather than just those who are acting based upon their faith. This has resulted in numerous states passing “Religious Freedom Restoration” laws to reinstate the previous level of judicial scrutiny.

Such limitation of religious liberty is exactly what happened in Fulton.

This is also why Illinois churches’ federal lawsuits against being forced to close during the COVID-19 pandemic fell on deaf ears in the federal courts.

With the new Court make-up (already relevant, as it had refused to even hear similar cases prior to the appointment of Justice Amy Coney Barrett), there is a possibility of overturning Employment Division, and reinstating a test which would prevent such government prohibitions of exercising religious faith.

What this case is really all about, is giving government the ability to silence the Church, and thereby God, and the Word of God on issues of right and wrong.

The political left desires to replace the current United States Republican form of government with the political philosophies of Karl Marx in the Communist Manifesto (referred to more gently as “socialism” by Democrat politicians such as Bernie Sanders).  Removing the Church’s ability to influence the culture’s understanding of right and wrong is a key element needed to effectively marginalize true religion and make it irrelevant.

This is why Democrats appoint activist judges who will re-write the Constitution to suit their contemporary ideology, and why they now desire to continue that practice by adding more judges to the High Court.

Pray with us that our Creator who holds this Court and this Country in His mighty hand, will guide the Court to protect true religion and His Church, the indispensable foundation of this great Nation!

PLEASE PRAY: Pray for God’s mercy on our nation as we await the results of President Trump’s legal challenges to election results. In 2000, it took 37 days to figure out the “hanging chad” dilemma. We must be patient. In the meantime, please pray that any and all corruption would be exposed. 

Please consider a donation to IFI as we stand boldly in the public square.

Written by Dr. John A. Sparks

Among recent actions by the U.S. Supreme Court, a four-sentence order may set the stage for the court to eventually address the collision between free speech and religious freedom on one hand and gay rights on the other. The order voided a judgment by the state of Oregon that had imposed a $135,000 fine on Portland-area bakery owners—the Kleins—for refusing to bake a wedding cake for a lesbian couple. Oregon maintained that its anti-discrimination law condemned such a rebuff even when the bakery owners’ religious convictions run counter to participating in a same-sex wedding.

Besides vacating the fine, the court sent the case back to the Oregon Court of Appeals to be reconsidered in light of the Masterpiece Cakeshop decision. Masterpiece involved a similar situation in Colorado for Christian baker, Jack Phillips, when he refused, on religious grounds, to bake a wedding cake for a gay couple’s marriage. In Masterpiece, Colorado’s case against Phillips had relied on language in an earlier case, Employment Division v. Smith (1990), which said that religious liberty claims could not be used as a defense against “generally applicable” laws that were “neutrally” enforced. However, the U.S. Supreme Court found that the Colorado proceedings against Phillips were far from “neutral.” In fact, they were rife with religious hostility toward him. Besides that, the court found that Colorado had selectively enforced its anti-discrimination laws, making them less than “generally applicable.”  Now the court is ordering the Oregon court to review the Klein case looking for the same examples of unfairness it had discovered in Masterpiece.

Klein is the second case of this type that the U.S. Supreme Court has sent back to the courts below for reconsideration in light of the Masterpiece decision. Earlier, the Washington Supreme Court was ordered to make such a review in a case involving a florist, Barronelle Stutzman, and her business, Arlene Flowers. Stutzman had refused to provide wedding flowers for a gay couple’s ceremony. Just recently (June 6, 2019), the Washington court found that proceedings were not conducted with “religious animus.” The Washington court closed that review by repeating its conclusions that neither free speech, free exercise, nor freedom of expression were infringed upon by the anti-discrimination law in question.

It seems likely that the Oregon court will make similar findings of the absence of religious hostility. Once the Oregon court has spoken on the matter in the way it is expected to rule, the questions of religiously hostile proceedings and selective enforcement will have been disposed of. That will leave the central constitutional questions of free speech and free exercise of religion for the U.S. Supreme Court to face which it effectively avoided in Masterpiece. The arguments on those issues made by the Kleins and Mrs. Stutzman in their existing court filings will be brought up again.

What are the Constitutional claims supporting the positions of faith-guided commercial providers who are asked to set aside their religious beliefs by customers who ask them to offer services contrary to their convictions?

The first basis for relief from the reach of the anti-discrimination laws is the claim that such laws violate the freedom of speech of the providers. At first blush, it may seem a stretch to regard baking a cake or arranging flowers as “speech.” However, federal Constitutional cases have long recognized that protecting speech is not limited to “the spoken or written word.” Engaging in conduct that expresses a point of view or idea is speech, and that expressive conduct is protected by the First Amendment.

In addition, and important for these cases, citizens cannot be forced to deliver a message provided by the government or another person. The oldest and best-known case recognizing this idea—called the “compelled speech doctrine”—is W. Va. State Board of Education v. Barnett. There the court said that public school children could not be required to salute the American flag or say the pledge of allegiance when to do so was against their religion’s teaching. The case, though it involved religious convictions, is usually viewed as a free speech case in which the court forbade the government from making citizens express a message contrary to their beliefs. Both wedding providers—the Kleins and Stutzman—maintain that Washington and Oregon laws are, in effect, requiring them to use their artistic expression to further a conjugal union against which they have serious religious reservations, or face a legal penalty. When their only other choice is to abandon the means to make a livelihood that they have chosen, the burden placed upon them is unconstitutional.

The second constitutional claim asserted by the two wedding providers is that their religious liberty under the Free Exercise clause of the First Amendment has been denied to them by the anti-discrimination laws. Employment Division v. Smith, as already mentioned above, makes that claim more difficult. The Smith defendants consumed an illegal drug—peyote—as part of a Native American religious ceremony. They were dismissed from their jobs with a drug rehabilitation organization and lost a claim for unemployment compensation. They argued that their free exercise of religion was being infringed upon by Oregon.

The U.S. Supreme Court disagreed, maintaining that “neutral” and “generally applicable” regulations could not be avoided by religious liberty claims. The result was probably right: religious ceremonies do not give participants the right to use controlled substances. But, unfortunately, the court’s opinion needlessly swept away an almost three-decades-old case which had established a sensible legal formula for addressing those instances in which religious convictions clash with existing legislation. That formula, called the Sherbert test after Sherbert v. Verner (1963), protected religious believers when the court found that a law or regulation “substantially burdened” their “free exercise of religion,” and that the government had no “compelling interest” at stake, or that it overlooked a “less restrictive” way to further its interest. Congress vigorously sought to counter the Smith decision by passing the Religious Freedom Restoration Act (RFRA), which required the restoration of the Sherbert test. However, the RFRA was ruled as only applicable to federal laws and regulations and not to the states and therefore does not help the Kleins and Stutzman.

Given the clear facts of these cases, and the uncertainty that remains for religious providers, it is high time for the court to hear and decide them. For the most part, the reasoning of Smith should be discarded and Sherbert reinstated. The court should not avoid these fundamental questions of free speech and free exercise of religion any longer. Rather, it must courageously set the cases for oral argument and address these key issues head on.

This article was originally published by The Institute for Faith & Freedom.