Amicus Curiae Brief — Elim Romanian Pentecostal Church, et al., Petitioners v. J. B. Pritzker, Governor of Illinois

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No. 20-569

In the

Supreme Court of the United States

ELIM ROMANIAN PENTECOSTAL CHURCH, ET AL.,

Petitioners,

v.

J.B. PRITZKER,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICUS CURIAE CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONER

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Claremont Institute’s Center for

Constitutional Jurisprudence

c/o Dale E. Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

caso@chapman.edu

Counsel for Amicus Curiae

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT .....................................1

REASONS FOR GRANTING THE WRIT ..................2

I. This Court Should Grant Review to Decide

that a Claimed Emergency Does Not

Suspend the Constitution................................. 2

II. Review Should Be Granted to Decide

that the Level of Deference Granted at the

Beginning of a Claimed Emergency

Diminishes with the Passage of Time ............. 6

III.This Court Should Grant Review to Decide

that Neither State Officials nor Courts

Have the Power to Decide Whether a

Particular Religious Practice Is Necessary ..... 8

CONCLUSION .......................................................... 12

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TABLE OF AUTHORITIES

Cases

Arizona Free Enter. Club’s Freedom Club PAC v.

Bennett,

564 U.S. 721 (2011)..................................................6

Arlene’s Flowers v. Washington,

138 S.Ct. 2671 (2018)...............................................1

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)............................................ 1, 11

Calvary Chapel Dayton Valley v. Sisolak,

140 S.Ct. 2603 (2020)...............................................5

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993)..................................................7

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010)..................................................6

City of Boerne v. Flores,

521 U.S. 507 (1997).............................................. 4, 5

City of Richmond v. J. A. Croson Co.,

188 U.S. 469 (1989)..................................................3

Consol. Edison Co. of New York v. Pub. Serv.

Comm'n of New York,

447 U.S. 530 (1980)..................................................7

Elim Romanian Pentecostal Church v. Pritzker,

962 F.3d 341 (7th Cir. 2020) ...................................8

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004)......................................................8

Employment Division v. Smith,

494 U.S. 872 (1990)................................................ 11

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Frazee v. Illinois Dep’t of Employment Sec.,

489 U.S. 829 (1989)................................................ 11

Hosanna-Tabor Evangelical Lutheran Church and

School v. EEOC,

565 U.S. 171 (2012)................................................ 11

Korematsu v. United States,

323 U.S. 214 (1944)..................................................2

Little Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania,

140 S. Ct. 2367 (2020)..............................................7

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n,

138 S.Ct. 1719 (2018)...............................................1

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987)..................................................3

Roman Catholic Diocese of Brooklyn v. Cuomo,

-- S.Ct. --, 2020 WL 6948354 (2020) .................... 3, 6

Shaw v. Hunt,

517 U.S. 899 (1996)..................................................7

Thomas v. Review Bd. of Indiana Employment Sec.

Div.,

450 U.S. 707 (1981)................................................ 11

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ......8

Other Authorities

Isaac, Rhys, Religion and Authority: Problems of the

Anglican Establishment in Virginia in the Era of

the Great Awakening and the Parsons' Cause, 30

Wm. & Mary Q. 3 (1973) ....................................... 10

Madison, J., Memorial and Remonstrance Against

Religious Assessments (1785) .............................. 3, 5

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McConnell, Michael, Establishment &

Disestablishment at the Founding, Part I:

Establishment of Religion, 44 Wm. & Mary L. Rev

2105 (2003) ............................................................. 10

McConnell, Michael, The Origins and Historical

Understanding Of Free Exercise Of Religion, 103

Harv. L. Rev. 1409 (1990)........................................9

Penn, William, The Great Case for Liberty of

Conscience (1670) in WILLIAM PENN, THE POLITICAL

WRITINGS OF WILLIAM PENN ....................................5

S.C. Const. of 1778 art. XXXVIII, reprinted in 2 The

Federal and State Constitutions, Colonial

Charters, and Other Organic Laws of the United

States 1626 (Ben Perley Poore ed., The Lawbook

Exch. Ltd. 2d ed. 2001) (1878)............................... 10

Statutes

Decl. of Independence, ¶ 1, 1 Stat. 1 ..........................4

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INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the individual

right of Free Exercise of Religion. The Center has previously appeared before this Court as amicus curiae in

several cases addressing these issues, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n, 138 S.Ct. 1719 (2018); Arlene’s Flowers v.

Washington, 138 S.Ct. 2671 (2018); and Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

SUMMARY OF ARGUMENT

An emergency, especially one not involving an attack by foreign actors on United States soil, is not

grounds for suspending the Constitution. Courts have

sufficient tools to decide whether emergency orders interfere with constitutionally protected liberties without resort to blind deference. This is especially important where the orders do not result from the normal democratic procedures but are instead issued by

an official claiming to act as both legislator and executive.

While it might make sense to grant some breathing

space for an initial response to what appears to be an

emergency, that deference cannot continue indefi-

1 All parties were notified of and have consented to the filing of

this brief. In accordance with Rule 37.6, counsel affirms that no

counsel for any party authored this brief in whole or in part and

that no person or entity other than amicus made a monetary contribution to fund the preparation and submission of this brief.

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nitely. As time goes by, the officials claiming emergency authority to suspend constitutional rights must

be required to present evidence – subjected to normal

judicial procedures allowing for contrary evidence –

that the emergency exists and that the chosen means

of response are necessary to achieve a compelling interest.

Finally, the government may not justify the orders

on the basis of what the government believes is appropriate religious practice. The Establishment Clause

forbids government interference with religious practice.

REASONS FOR GRANTING THE WRIT

I.

This Court Should Grant Review to Decide

that a Claimed Emergency Does Not Suspend the Constitution

In his dissenting opinion in Korematsu, Justice

Jackson noted that an unconstitutional emergency order is likely to last only as long as the purported emergency. A judicial opinion that rationalizes such an order, however, creates a principle that “lies about like

a loaded weapon ready for the hand of any authority

that can bring forward a plausible claim of urgent

need.” Korematsu v. United States, 323 U.S. 214, 246

(1944) (Jackson, J., dissenting). In the wake of the

current global pandemic our jurisprudence is now littered with loaded weapons. It is time for this Court to

act and bring to a halt any notion that a claimed emergency – especially one not related to an attack by a

foreign power – does not nullify the Constitution.

“Blind judicial deference” has no place in the analysis

of constitutional claims. City of Richmond v. J. A.

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Croson Co., 188 U.S. 469, 501 (1989); see O’Lone v. Estate of Shabazz, 482 U.S. 342, 357-58 (1987) (Brennan,

J., dissenting).

The order under review clearly targets religious

worship. Religious services are specifically listed in

the order and are limited in ways that other gatherings are not. This disparate treatment demonstrates

a burden on the rights of Free Exercise of Religion.

Roman Catholic Diocese of Brooklyn v. Cuomo, -- S.Ct.

--, 2020 WL 6948354 at *2 (2020) (order granting applications for stay). “Because the challenged restrictions are not “neutral” and of “general applicability,” they must satisfy “strict scrutiny,” and this

means that they must be “narrowly tailored” to serve

a “compelling” state interest.” Id.

The Free Exercise of Religion protected by the

First Amendment reflects a recognition that citizens

owe a higher duty to the Creator that preexists duties

owed to secular society. James Madison articulated

the principal religious argument for the right to accommodation of religion in his famous attack on Patrick Henry’s general assessment bill, Memorial and

Remonstrance.

Madison defined religion in that text in the constitutional sense as “the duty we owe to our Creator.” J.

Madison, Memorial and Remonstrance Against Religious Assessments (1785), ¶ 11 reprinted in 5 The

Founders Constitution 83 (Phillip Kurland and Ralph

Lerner, eds.) (Univ. of Chicago Press 1987). Because

beliefs cannot be compelled, he wrote, the “[r]elgion…

of every man must be left to the conviction and conscience of every man; and it is the right of every man

to exercise it, as these may dictate.” Id. According to

Madison, the free exercise of religion is, by its nature,

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an inalienable right because a person’s beliefs “cannot

follow the dictates of other men” and because religion

involves a “duty towards the Creator.” Id. He went

on to implicitly express the doctrine of inalienable

rights contained in the Declaration of Independence,

explaining, “This duty [towards the Creator] is precedent both in order of time and in degree of obligation,

to the claims of Civil Society” and, therefore, “in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly

exempt from its cognizance.” Id.

The right to Free Exercise of Religion, Madison

reasoned, precedes civil society and is superior even to

legitimate government. Importantly, taking issue

with Smith in City of Boerne v. Flores, Justice O’Connor pointed out that “Madison did not say that duties

to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to

prevent deliberate acts of persecution or discrimination. The idea that civil obligations are subordinate

to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law.” City of

Boerne v. Flores, 521 U.S. 507, 561 (1997) (O’Connor,

J., dissenting). The Founders appealed to “the Laws

of Nature and Nature’s God” to justify signing the

Declaration of Independence. Decl. of Independence,

¶ 1, 1 Stat. 1. Free Exercise claims likewise entail duties to a higher authority. Because the Founders operated on the belief that God was real, the consequence of refusing to exempt Free Exercise claimants

from even facially benign laws would have been to unjustly require people of faith to “sin and incur divine

wrath.” William Penn, The Great Case for Liberty of

Conscience (1670) in WILLIAM PENN, THE POLITICAL

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WRITINGS OF WILLIAM PENN, introduction and annotations by Andrew R. Murphy (Indianapolis: Liberty

Fund, 2002).

Madison, therefore, did not conceive “of a secular

society in which religious expression is tolerated only

when it does not conflict with a generally applicable

law,” City of Boerne, 521 U.S. at 564 (O’Connor, J., dissenting), but rather he likely conceived of a society in

which citizens have the individual liberty under the

Free Exercise Clause to live out their faith. Madison

observed that a man’s religion “cannot follow the dictates of other men.” Memorial and Remonstrance, 5

THE FOUNDERS CONSTITUTION 83. Such trespasses on

the actual Free Exercise of Religion by the majority

are an illegitimate interference with that inalienable

right and would effectively write the Free Exercise

Clause out of the Constitution.

The First Amendment protects religious exercise,

not just religious belief. Indeed, a review of the writings of the founders and ratifiers of the Constitution

demonstrate that exercise of religion was meant to be

an unqualified right. At the very least, this Court

must test government limits on religious exercise under the strict scrutiny test.

This Court has “a duty to defend the Constitution,

and even a public health emergency does not absolve

us of that responsibility.” Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 2603, 2604 (2020) (Alito, J.,

dissenting from denial of injunctive relief). The Court

can uphold this duty by application of strict scrutiny

to the challenged regulation. This test gives the Court

all the tools that it needs to review the challenged order. If the Governor can prove that the restrictions at

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issue are necessary to achieve a compelling state interest, and are narrowly tailored to accomplish that

goal, then the restrictions will be upheld. As explained in Part II, supra, the type of proof necessary

for showing a compelling interest will necessarily vary

based on the need for intervention at the early stages

of the claimed emergency as opposed to orders issued

months after the claimed emergency was first declared. However, the narrow tailoring analysis will

remain the same as an important check government

power.

II.

Review Should Be Granted to Decide that

the Level of Deference Granted at the Beginning of a Claimed Emergency Diminishes with the Passage of Time

This Court has noted that “[s]temming the spread

of COVID-19 is unquestionably a compelling interest.”

Roman Catholic Diocese of Brooklyn, at *2. But that

is only the beginning of the inquiry under strict scrutiny. Strict scrutiny requires the government to prove

that the challenged order furthers the compelling interest and is narrowly tailored. Arizona Free Enter.

Club’s Freedom Club PAC v. Bennett, 564 U.S. 721,

734 (2011); Citizens United v. Fed. Election Comm’n,

558 U.S. 310, 340 (2010).

In the early stages of the pandemic, there was an

understandable willingness on the part of some to defer to orders issued by governors because there was so

little known about the disease. Roman Catholic Diocese of Brooklyn, at *5 (Gorsuch, J., concurring). But

that deference has an expiration date. Once the initial stages of the claimed emergency have passed, the

Court must “resume applying the Free Exercise

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Clause” and apply strict scrutiny to edicts that interfere with religious liberty. Id.

As noted, strict scrutiny requires proof, not speculation, that the restriction is necessary to achieve the

claimed compelling interest. See Consol. Edison Co.

of New York v. Pub. Serv. Comm'n of New York, 447

U.S. 530, 543 (1980). This requires a “strong basis in

evidence” that the restriction is necessary to achieve

the government’s interest. Shaw v. Hunt, 517 U.S.

899, 909-10 (1996). Necessity in this context requires

the government to prove that the challenged edict

“would substantially address, if not achieve, the

avowed purpose.” Id. at 915.

In Free Exercise cases, such as the instant action,

the government has a particularly high bar to clear in

order to justify its restrictions. Little Sisters of the

Poor Saints Peter & Paul Home v. Pennsylvania, 140

S. Ct. 2367, 2392 (2020) (Alito, J., concurring). The

Governor here must prove that he is protecting an interest “of the highest order.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 547 (1993).

But exempting other activities from the restrictions

imposed on religious worship defeat the Governor’s

claims. “‘[A] law cannot be regarded as protecting an

interest “of the highest order” ... when it leaves appreciable damage to that supposedly vital interest unprohibited.’” Id.; Little Sisters of the Poor, 140 S.Ct. at

2392 (Alito, J., concurring).

The Free Exercise Clause does not require the

Court to ignore the pandemic and it does not deprive

the government of the tools it needs to address the

pandemic. However, blind judicial deference to edicts

issued by governors claiming emergency powers is not

permitted. We are well-past the initial stages of the

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pandemic. Sufficient time has elapsed for the governors claiming emergency powers to come forward with

scientific evidence that their edicts are truly necessary to achieve a compelling government interest and

they are narrowly tailored to achieve that interest.

III.

This Court Should Grant Review to Decide

that Neither State Officials nor Courts

Have the Power to Decide Whether a Particular Religious Practice Is Necessary

Underlying the order at issue in this case is the

Governor’s claim that he can decide which religious

practices are or are not necessary. It seems that the

Governor believes that he can limit attendance because not everybody needs to attend a worship service

in order to practice their religion. Similarly, the court

below ruled that the Governor was free to treat grocery stores and soup kitchens more favorably than

houses of worship because “[f]eeding the body requires

teams of people to work together in physical spaces,

but churches can feed the spirit in other ways.” Elim

Romanian Pentecostal Church v. Pritzker, 962 F.3d

341, 347 (7th Cir. 2020). The Establishment Clause,

however, denies any authority to states or federal

courts to dictate how a church can “feed the spirit.”

Beyond its federalism component, the Establishment Clause protects an individual liberty of religion.

Zelman v. Simmons-Harris, 536 U.S. 639, 679 (2002)

(Thomas, J., concurring); Elk Grove Unified Sch. Dist.

v. Newdow, 542 U.S. 1, 52 (2004) (Thomas, J., concurring). It protects the individual’s right to engage in

religious worship without coercion. And it protects

against government interference with the internal op-

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eration of religions entities. It helps here to understand what the founding generation meant by the

term “establishment of religion.”

In colonial America, state establishments of religion were ubiquitous. While the Puritans ruled New

England to advance their vision of a Christian commonwealth, the Church of England held the allegiances of colonies like Virginia and Georgia. Michael

McConnell, The Origins and Historical Understanding Of Free Exercise Of Religion, 103 Harv. L. Rev.

1409, 1422-23 (1990) [hereinafter McConnell, Origins

of Free Exercise]. New York and New Jersey welcomed those that did not fit into the Puritan or Anglican tradition. Id. Pennsylvania and Delaware were

founded as safe havens for Quakers, while Maryland

was founded as a refuge for English Catholics who suffered persecution in Britain. Id. Most notably, Roger

Williams founded Rhode Island as a colony for

Protestant dissenters after the General Court banished him from Massachusetts. Id. Thus, when Congress proposed an amendment banning the federal

government from making any law “respecting the establishment of religion” it had something very specific

in mind.

The key term is “establishment.” The Congress

that proposed the First Amendment and the states

that ratified it had significant experience with the

concept of religious establishments. Some establishments involved governmental coercion that compelled

a form of religious observance. Thus, some states

sought to control the doctrines and structure of the

church. South Carolina did this through its 1778

Constitution requiring a church to ascribe to five articles of faith before being incorporated as a state

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church. S.C. Const. of 1778 art. XXXVIII, reprinted

in 2 The Federal and State Constitutions, Colonial

Charters, and Other Organic Laws of the United

States 1626 (Ben Perley Poore ed., The Lawbook

Exch. Ltd. 2d ed. 2001) (1878). Other states, like Virginia, sought to control the personnel of the church

and vested the power of appointing ministers of the

Anglican Church in local governing bodies known as

vestries. Rhys Isaac, Religion and Authority: Problems of the Anglican Establishment in Virginia in the

Era of the Great Awakening and the Parsons' Cause,

30 Wm. & Mary Q. 3 (1973).

The other type of government coercion at play in

religious establishments involved coercion of the individual in his or her religious practice. Massachusetts,

for instance, prosecuted Baptists who refused to baptize their children or attend Congregationalist services. Michael McConnell, Establishment & Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev 2105, 2145 (2003)[hereinafter McConnell, Establishment & Disestablishment]. Georgia supported the state church through a

liquor tax. Id. at 2154. Other states limited political

participation to members of the state church. Id. at

2178.

The order in this case dictates how many people

may attend a religious service, regardless of the size

of the building in which the service is held. The state

claims the power to decide whether it is necessary for

an individual to be able to attend communal prayer, a

praise and worship service, a Shabbat service, a khutbah, or the Holy Sacrifice of the Mass. The Court below agrees because in its view, there are other ways to

feed the spirit. Yet the decision of how to feed the soul

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is one that the Constitution reserves to the church,

synagogue, mosque, or other religious entity. Government simply has no role in determining what is a sufficient exercise of religious worship. See Hosanna-Tabor Evangelical Lutheran Church and School v.

EEOC, 565 U.S. 171, 199-200 (2012) (Alito, J., concurring); see e.g., Frazee v. Illinois Dep’t of Employment

Sec., 489 U.S. 829, 833 (1989), Thomas v. Review Bd.

of Indiana Employment Sec. Div., 450 U.S. 707, 716

(1981), and Burwell v. Hobby Lobby Stores, Inc., 573

U.S. at 725.

Review should be granted to decide that even in a

claimed emergency government has no role in deciding what types of worship are “sufficient.” See Employment Division v. Smith, 494 U.S. 872, 887 (1990)

(“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or

the validity of particular litigants' interpretations of

those creeds.”)

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CONCLUSION

Searching judicial review is especially important

at this time because the orders at issue in this case,

and similar orders in other states, are not imposed by

the normal democratic process. Instead, governors,

mayors, and local health officials have claimed emergency power to suspend constitutional liberties of

speech, assembly, and, in this case, free exercise of religion. This Court should grant review to decide that

such autocratic exercises of authority are not beyond

the review of the judiciary.

November 2020

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

The Claremont Institute’s Center for

Constitutional Jurisprudence

c/o Chapman University Fowler

School of Law

One University Drive

Orange, CA 92866

(877) 855-3330

caso@chapman.edu

Counsel for Amicus Curiae