Illinois Republican Party v. J. B. Pritzker ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐2175
ILLINOIS REPUBLICAN PARTY, et al.,
Plaintiffs‐Appellants,
v.
J. B. PRITZKER, Governor of Illinois,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 20 C 3489 — Sara L. Ellis, Judge.
____________________
ARGUED AUGUST 11, 2020 — DECIDED SEPTEMBER 3, 2020
____________________
Before WOOD, BARRETT, and ST. EVE, Circuit Judges.
WOOD, Circuit Judge. As the coronavirus SARS‐CoV‐2 has
raged across the United States, public officials everywhere
have sought to implement measures to protect the public
health and welfare. Illinois is no exception: Governor J. B.
Pritzker has issued a series of executive orders designed to
limit the virus’s opportunities to spread. In the absence of bet‐
ter options, these measures principally rely on preventing the
2 No. 20‐2175
transmission of viral particles (known as virions) from one
person to the next.
Governor Pritzker’s orders are similar to many others
around the country. At one point or another, they have in‐
cluded stay‐at‐home directives; flat prohibitions of public
gatherings; caps on the number of people who may congre‐
gate; masking requirements; and strict limitations on bars,
restaurants, cultural venues, and the like. These orders, and
comparable ones in other states, have been attacked on a va‐
riety of grounds. Our concern here is somewhat unusual.
Governor Pritzker’s Executive Order 2020‐43 (EO43, issued
June 26, 2020) exhibits special solitude for the free exercise of
religion.1 It does so through the following exemption:
a. Free exercise of religion. This Executive Order
does not limit the free exercise of religion. To pro‐
tect the health and safety of faith leaders, staff, con‐
gregants and visitors, religious organizations and
houses of worship are encouraged to consult and
follow the recommended practices and guidelines
from the Illinois Department of Public Health. As
set forth in the IDPH guidelines, the safest practices
for religious organizations at this time are to
1 EO43 was set to expire by its own terms on August 22, 2020, but the
Governor issued EO52 on August 21, 2020. See https://www2.illinois.gov/
Pages/Executive‐Orders/ExecutiveOrder2020‐52.aspx. EO52 extends
EO43 in its entirety through September 19, 2020. For convenience, we refer
in this opinion to EO43.
No. 20‐2175 3
provide services online, in a drive‐in format, or out‐
doors (and consistent with social distancing re‐
quirements and guidance regarding wearing face
coverings), and to limit indoor services to 10 peo‐
ple. Religious organizations are encouraged to take
steps to ensure social distancing, the use of face
coverings, and implementation of other public
health measures.
See EO43, § 4(a), at https://www2.illinois.gov/Pages/Execu‐
tive‐Orders/ExecutiveOrder2020‐43.aspx. Emergency and
governmental functions enjoy the same exemption. Other‐
wise, EO43 imposes a mandatory 50‐person cap on gather‐
ings.
The Illinois Republican Party and some of its affiliates
(“the Republicans”) believe that the accommodation for free
exercise contained in the executive order violates the Free
Speech Clause of the First Amendment. In this action, they
seek a permanent injunction against EO43. In so doing, they
assume that such an injunction would permit them, too, to
congregate in groups larger than 50, rather than reinstate the
stricter ban for religion that some of the Governor’s earlier ex‐
ecutive orders included, though that is far from assured. Re‐
lying principally on Jacobson v. Massachusetts, 197 U.S. 11
(1905), the district court denied the Republicans’ request for
preliminary injunctive relief against EO43. See Illinois Repub‐
lican Party v. Pritzker, No. 20 C 3489, 2020 WL 3604106 (N.D.
Ill. July 2, 2020). The Republicans promptly sought interim re‐
lief from that ruling, see 28 U.S.C. § 1292(a)(1), but we de‐
clined to disturb the district court’s order, Illinois Republican
Party v. Pritzker, No. 20‐2175 (7th Cir. July 3, 2020), and Justice
Kavanaugh in turn refused to intervene. Illinois Republican
4 No. 20‐2175
Party v. Pritzker, No. 19A1068 (Kavanaugh, J., in chambers July
4, 2020).
We did, however, expedite the briefing and oral argument
of the merits of the preliminary injunction, and we heard ar‐
gument on August 11, 2020. Guided primarily by the Supreme
Court’s decision in Winter v. Natural Resources Defense Council,
555 U.S. 7 (2008), we conclude that the district court did not
abuse its discretion in denying the requested preliminary in‐
junction, and so we affirm its order.
I
Before we turn to the heart of our analysis, a word or two
about the standard of review for preliminary injunctions is in
order. The Supreme Court’s last discussion of the subject oc‐
curred in Winter, where the Court reviewed a preliminary in‐
junction against the U.S. Navy’s use of a sonar‐training pro‐
gram. Id. at 12. It expressed the standard succinctly: “A plain‐
tiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irrep‐
arable harm in the absence of preliminary relief, that the bal‐
ance of equities tips in his favor, and that an injunction is in
the public interest.” Id. at 20. The question in Winter, however,
just as in our case, is one of degree: how likely must success on
the merits be in order to satisfy this standard? We infer from
Winter that a mere possibility of success is not enough. Id. at
22.
In the related context of a court’s power to stay its own
judgment (or that of a lower tribunal), the Court returned to
this subject in Nken v. Holder, 556 U.S. 418 (2009). There, while
noting the “substantial overlap” between the analysis of stays
and that of preliminary injunctions, id. at 434, the Court
No. 20‐2175 5
stopped short of treating them identically. It pointed out that,
unlike a preliminary injunction, which is an order directed at
someone and that governs that party’s conduct, “a stay oper‐
ates upon the judicial proceeding itself.” Id. at 428. Before
such an order should issue, the Court said, the applicant must
make a strong showing that she is likely to succeed on the
merits. Id. at 434. At the same time, following Winter, the
Court said that a possibility of success is not enough. Neither
is a “better than negligible” chance: the Court expressly dis‐
approved that formula, see id., which appears in many of our
decisions, including one the Court singled out, Sofinet v. INS,
188 F.3d 703, 707 (7th Cir. 1999). See also, e.g., Whitaker by
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d
1034, 1046 (7th Cir. 2017); Girl Scouts of Manitou Council, Inc. v.
Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1096 (7th Cir.
2008); Int’l Kennel Club of Chi., Inc. v. Mighty Star, Inc., 846 F.2d
1079, 1084 (7th Cir. 1988). We note this to remind both the dis‐
trict courts and ourselves that the “better than negligible”
standard was retired by the Supreme Court.
We understand from both Winter and Nken that an appli‐
cant for preliminary relief bears a significant burden, even
though the Court recognizes that, at such a preliminary stage,
the applicant need not show that it definitely will win the
case. A “strong” showing thus does not mean proof by a pre‐
ponderance—once again, that would spill too far into the ul‐
timate merits for something designed to protect both the par‐
ties and the process while the case is pending. But it normally
includes a demonstration of how the applicant proposes to
prove the key elements of its case. And it is worth recalling
that the likelihood of success factor plays only one part in the
analysis. The applicant must also demonstrate that “irrepara‐
ble injury is likely in the absence of an injunction,” see Winter,
6 No. 20‐2175
555 U.S. at 22. In addition, the balance of equities must “tip[]
in [the applicant’s] favor,” and the “injunction [must be] in
the public interest.” Id. at 20.
II
With this standard in mind, we are ready to turn to the
case at hand. We begin by confirming, as we did in Elim Ro‐
manian Pentecostal Church v. Pritzker, 962 F.3d 341 (7th Cir.
2020), that the possibility that EO43 may change in the coming
days or weeks does not moot this case. The Governor has
made clear that the virus is a moving target: if possible, he
will open up the state (or certain regions of the state) further,
but if the criteria to which the state is committed take a turn
for the worse, he could reinstate more stringent measures. See
id. at 344–45. Our mootness analysis in Elim thus applies with
full force to this case.
The next question relates to the overall validity of EO43
and orders like it, which have been issued in the midst of a
general pandemic. As we noted in Elim, the Supreme Court
addressed this type of measure more than a century ago, in
Jacobson v. Massachusetts, 197 U.S. 11 (1905). The district court
appropriately looked to Jacobson for guidance, and so do we.
The question the Court faced there concerned vaccination re‐
quirements that the City of Cambridge had put in place in re‐
sponse to a smallpox epidemic. The law made an exception
for children who had a physician’s certificate stating that they
were “unfit subjects for vaccination,” id. at 12, but it was oth‐
erwise comprehensive. Faced with a lawsuit by a man who
did not wish to be vaccinated, and who contended that the
City’s requirement violated his Fourteenth Amendment right
to liberty, the Court ruled for the City. In so doing, it held that
it was appropriate to defer to the City’s assessment of the
No. 20‐2175 7
value of vaccinations—an assessment, it noted, that was
shared “by the mass of the people, as well as by most mem‐
bers of the medical profession … and in most civilized na‐
tions.” Id. at 34. It thus held that “[t]he safety and the health
of the people of Massachusetts are, in the first instance, for
that commonwealth to guard and protect,” and that it “[did]
not perceive that this legislation has invaded any right se‐
cured by the Federal Constitution.” Id. at 38.
At least at this stage of the pandemic, Jacobson takes off the
table any general challenge to EO43 based on the Fourteenth
Amendment’s protection of liberty. Like the order designed
to combat the smallpox epidemic, EO43 is an order designed
to address a serious public‐health crisis. At this stage in the
present litigation, no one is alleging that the Governor lacks
the power to issue such orders as a matter of state law. In‐
stead, our case presents a more granular challenge to the Gov‐
ernor’s action—one that focuses on his decision to subject the
exercise of religion only to recommended measures, rather
than mandatory ones. We must decide whether that distinc‐
tion is permissible.
Normally, parties challenging a state measure that ap‐
pears to advantage religion invoke the Establishment Clause
of the First Amendment (assuming for the sake of discussion
that the challengers can establish standing to sue). That is em‐
phatically not the theory that the Republicans are pursuing.
We eliminated any doubt on that score at oral argument,
where counsel assured us that this was not their position. As
we explain in more detail below, the Republicans argue in‐
stead that preferential treatment for religious exercise con‐
flicts with the interpretation in Reed v. Gilbert, 576 U.S. 155
(2015), of the Free Speech Clause of the same amendment. A
8 No. 20‐2175
group of 100 people may gather in a church, a mosque, or a
synagogue to worship, but the same sized group may not
gather to discuss the upcoming presidential election. The Re‐
publicans urge that only the content of the speech distin‐
guishes these two hypothetical groups, and as they see it, Reed
prohibits such a line.
Our response is to say, “not so fast.” A careful look at the
Supreme Court’s Religion Clause cases, coupled with the fact
that EO43 is designed to give greater leeway to the exercise of
religion, convinces us that the speech that accompanies reli‐
gious exercise has a privileged position under the First
Amendment, and that EO43 permissibly accommodates reli‐
gious activities. In explaining that conclusion, we begin with
a look at the more conventional cases examining the interac‐
tion of the two Religion Clauses. We then take a close look at
Reed, and we conclude by explaining that a comparison be‐
tween ordinary speech (including political speech, which all
agree lies at the core of the First Amendment) and the speech
aspect of religious activity reveals something more than an
“apples to apples” matching. What we see instead is “speech”
being compared to “speech plus,” where the “plus” is the pro‐
tection that the First Amendment guarantees to religious ex‐
ercise. Even though we held in Elim that the Governor was not
compelled to make this accommodation to religion, nothing
in Elim, and nothing in the Justices’ brief writings on the effect
of coronavirus measures on religion, says that he was forbid‐
den to carve out some space for religious activities. See South
Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020);
Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070, 2020 WL
4251360 (U.S. July 24, 2020).
No. 20‐2175 9
A
Although there is a long history and rich literature dealing
with the two Religion Clauses, it is enough here for us to
begin with the Supreme Court’s more recent decisions up‐
holding legislation that gives religion a preferred position. We
start with Corporation of the Presiding Bishop of the Church of Je‐
sus Christ of Latter‐Day Saints v. Amos, 483 U.S. 327 (1987). In
that case, several people who were fired from church‐owned
corporations solely because they were not church members
sued the church under Title VII of the Civil Rights Act of 1964;
their theory was that the church had engaged in impermissi‐
ble discrimination on the basis of religion. The case would
have had some legs if an ordinary employer had decided to
sack all its Catholic, or Jewish, or Presbyterian employees. Af‐
ter all, section 703(a) of Title VII specifies that it is “an unlaw‐
ful employment practice for an employer—(1) to fail or refuse
to hire or to discharge any individual, or otherwise to discrim‐
inate against any individual [in a variety of ways] because of
such individual’s … religion … .” 42 U.S.C. § 2000e‐2(a).
But that is not all the statute says. Section 702 states that
the law does not apply to “a religious corporation, associa‐
tion, educational institution or society with respect to the em‐
ployment of individuals of a particular religion to perform
[the institution’s work].” 42 U.S.C. § 2000e‐1(a); see also Civil
Rights Act of 1964, Title VII, § 703(e), 42 U.S.C. § 2000e‐2(e).
The plaintiffs in Amos contended that the exemption permit‐
ting religious employers to discriminate on religious grounds
violates the Establishment Clause. The Supreme Court re‐
jected this theory and held that the Establishment Clause per‐
mits accommodations designed to allow free exercise of reli‐
gion. The Court’s opinion stresses that it is permissible for the
10 No. 20‐2175
government to grant a benefit to religion when the purpose of
the benefit is simply to facilitate noninterference with free ex‐
ercise:
This Court has long recognized that the govern‐
ment may (and sometimes must) accommodate reli‐
gious practices and that it may do so without violating
the Establishment Clause. It is well established, too,
that the limits of permissible state accommodation to
religion are by no means co‐extensive with the nonin‐
terference mandated by the Free Exercise Clause.
There is ample room under the Establishment Clause
for benevolent neutrality which will permit religious
exercise to exist without sponsorship and without in‐
terference.
483 U.S. at 334 (cleaned up).
Lest there be any doubt, the Court repeated that it had
“never indicated that statutes that give special consideration
to religious groups are per se invalid.” Id. at 338. Using the ru‐
bric of Lemon v. Kurtzman, 403 U.S. 602 (1971), which was then
widely accepted, the Court found that the legislature was en‐
titled to enact a measure designed to alleviate governmental
interference with the internal affairs of religious institutions,
and that such a law did not have a forbidden primary effect
of advancing religion. Finally, and interestingly for our case,
the Court rejected Amos’s assertion that the religious exemp‐
tion violated the Equal Protection Clause. A statute otherwise
compatible with the Establishment Clause that “is neutral on
its face and motivated by a permissible purpose of limiting
governmental interference with the exercise of religion,” 483
U.S. at 339, had to satisfy only rational‐basis scrutiny for
No. 20‐2175 11
Equal Protection purposes. Section 702, the Court held, easily
passed that bar.
Another case in which the Court addressed measures that
give special solicitude to the free exercise of religion was Cut‐
ter v. Wilkinson, 544 U.S. 709 (2005). That case involved a clash
between state prisoners who alleged infringements of their
right to practice their religion—guaranteed by both the Free
Exercise Clause and the Religious Land Use and Institution‐
alized Persons Act (RLUIPA), 42 U.S.C. § 2000cc‐1(a)(1)–(2)—
and prison officials, who asserted that the accommodations
required by RLUIPA violated the Establishment Clause.
RLUIPA was passed in response to Employment Division, De‐
partment of Human Resources of Oregon v. Smith, 494 U.S. 872
(1990), which held that the Free Exercise Clause does not pro‐
hibit states from enforcing laws of general applicability that
incidentally burden religion.2 Congress first struck back with
the Religious Freedom Restoration Act (RFRA), Pub. L. No.
103‐141, 107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb–
2000bb‐4), in an effort to require a more robust justification
for laws burdening religious exercise, but the Supreme Court
held in City of Boerne v. Flores, 521 U.S. 507 (1997), that RFRA
could not be applied to the states. Congress’s next answer was
RLUIPA, which affects only land‐use and institutionalized
persons, but because of the tie to federal funding, avoids the
2 We are aware that the Supreme Court has granted certiorari in Ful‐
ton v. City of Philadelphia, No. 19‐123, 140 S. Ct. 1104 (2020), and that one of
the questions presented in that case is whether Smith should be reconsid‐
ered. We doubt that the outcome of Fulton will have any effect on this case,
and in any event, we remain bound by Smith until the Supreme Court in‐
structs otherwise.
12 No. 20‐2175
constitutional flaws the Court found in RFRA as applied to
state institutions.
The Cutter plaintiffs were Ohio prisoners who adhered to
a variety of nonmainstream religions, such as Satanism,
Wicca, and Asatru. They complained that the prison was im‐
peding their religious practices in a number of ways, includ‐
ing by denying access to religious literature, restricting op‐
portunities for group worship, withholding the right to fol‐
low dress and appearance rules, and not engaging the ser‐
vices of a chaplain. The defendants did not deny these allega‐
tions; they argued instead that they were under no obligation
to deviate from their general policies. RLUIPA, they said, im‐
properly advances religion to the extent that it required these
types of affirmative measures.
As in Amos, the Supreme Court held that the state “may …
accommodate religious practices … without violating the Es‐
tablishment Clause.” Id. at 713 (alterations in original) (inter‐
nal quotation omitted). It reiterated its comment in Walz v. Tax
Commission of City of New York, 397 U.S. 664, 669 (1970), that
“there is room for play in the joints” between the Free Exercise
and Establishment Clauses. 544 U.S. at 713, 719. RLUIPA, it
then said, lies within the “space for legislative action neither
compelled by the Free Exercise Clause nor prohibited by the
Establishment Clause.” Id. at 719. It offered this explanation
for its holding:
Foremost, we find RLUIPA’s institutionalized‐per‐
sons provision compatible with the Establishment
Clause because it alleviates exceptional government‐
created burdens on private religious exercise.
See Board of Ed. of Kiryas Joel Vill. Sch. Dist. v. Gru‐
met, 512 U.S. 687, 705 (1994) (government need not “be
No. 20‐2175 13
oblivious to impositions that legitimate exercises of
state power may place on religious belief and prac‐
tice”) … .
544 U.S. at 720. It is noteworthy in this connection that the
predicate for the religious accommodation is a legitimate exer‐
cise of state power, albeit one that burdens religion. Much the
same can be said of the coronavirus measures now before us.
The third case we find helpful is Hosanna‐Tabor Evangelical
Lutheran Church & School v. Equal Employment Opportunity
Commission, 565 U.S. 171 (2012). There the Court returned to
the employment setting, this time examining an action
brought by the EEOC against a church and its associated
school. The EEOC asserted that the school had fired a teacher
in retaliation for her threat to file a lawsuit under disability‐
discrimination laws; the school responded that its reason for
firing her was that her threat to sue was a breach of the tenets
of its faith. The central issue, however, involved the teacher’s
status: if she was properly characterized as a “minister” of the
faith, then the First Amendment barred the EEOC’s suit; if she
was instead a lay employee, the parties assumed that the case
could go forward. See also Our Lady of Guadalupe Sch. v. Mor‐
rissey‐Berru, 140 S. Ct. 2049 (2020) (extending Hosanna‐Tabor to
teachers responsible for instruction in the faith, regardless of
their specific title or training).
In this instance, the Court found that the Free Exercise
Clause and the Establishment Clause pointed in the same di‐
rection—both mandate noninterference “with the decision of
a religious group to fire one of its ministers.” 565 U.S. at 181.
It endorsed the idea of a “ministerial exception” to the other‐
wise applicable laws regulating employment relationships.
Id. at 188. But, in responding to the EEOC’s argument that no
14 No. 20‐2175
ministerial exception is needed, because religious organiza‐
tions enjoy the right to freedom of association under the First
Amendment, the Court offered guidance on the way the dif‐
ferent branches of the First Amendment interact:
We find this position [i.e., that the general right to
freedom of association takes care of everything] unten‐
able. The right to freedom of association is a right en‐
joyed by religious and secular groups alike. It follows
under the EEOC’s and Perich’s view that the First
Amendment analysis should be the same, whether the
association in question is the Lutheran Church, a labor
union, or a social club. … That result is hard to square
with the text of the First Amendment itself, which
gives special solicitude to the rights of religious organ‐
izations. We cannot accept the remarkable view that
the Religion Clauses have nothing to say about a reli‐
gious organizationʹs freedom to select its own minis‐
ters.
Id. at 189. In other words, the Religion Clauses are doing some
work that the rest of the First Amendment does not. Whether
that extra work pertains only to the implied right to freedom
of association (not mentioned in so many words in the text of
the amendment) or if it applies also to the right to freedom of
speech, is the question before us. In order to answer it, we
must examine the primary free‐speech case on which the Re‐
publicans rely, Reed v. Gilbert.
B
Reed involved the regulation of signs in the town of Gil‐
bert, Arizona. 576 U.S. at 159. Gilbert’s municipal code regu‐
lated signs based on the type of information they conveyed,
No. 20‐2175 15
and this turned out to be its fatal flaw. Signs designated as
“Temporary Directional Signs Relating to a Qualifying Event”
were regulated more restrictively than signs conveying other
messages, including signs that were deemed to be “Ideologi‐
cal Signs” or “Political Signs.” Id. at 159–60. The case arose
when a small church and its pastor wanted to erect temporary
signs around the town on Saturdays. Because the church had
no permanent building, it needed a way to inform interested
persons each week about where it would hold its Sunday ser‐
vices. Id. at 161.
The problem was that the church’s signs did not comply
with the Code, which dictated size, permissible placement
spots, number per single property, and display duration. This
prompted the Town’s Sign Czar to cite the church twice for
Code violations. After efforts at a mutually satisfactory ap‐
proach failed, the church sued the Town, claiming that the
Code abridged its right to free speech in violation of the First
Amendment, made applicable to the states through the Four‐
teenth Amendment. Both the district court and the court of
appeals (over the course of a couple of rounds) ruled in favor
of the Town, because as they saw it, the Code “did not regu‐
late speech on the basis of content.” Id. at 162. The Supreme
Court reversed.
The Court recognized two types of content‐based regula‐
tions: first, regulation based on the content of the topic dis‐
cussed or the idea or message expressed, id. at 163; and sec‐
ond, regulation that is facially content neutral, but that “can‐
not be justified without reference to the content of the regu‐
lated speech,” id. at 164 (cleaned up). The Town’s Code, the
Court held, fell in the first category because it treated signs
differently depending on their communicative content:
16 No. 20‐2175
If a sign informs its reader of the time and place a
book club will discuss John Locke’s Two Treatises of
Government, that sign will be treated differently from
a sign expressing the view that one should vote for one
of Locke’s followers in an upcoming election, and both
signs will be treated differently from a sign expressing
an ideological view rooted in Locke’s theory of govern‐
ment. More to the point, the Church’s signs inviting
people to attend its worship services are treated differ‐
ently from signs conveying other types of ideas. On its
face, the Sign Code is a content‐based regulation of
speech.
Id.
Entirely missing from Reed is any argument about, or dis‐
cussion of, the way in which these principles apply to Free
Exercise cases. That is probably because if the Town was do‐
ing anything, it was disadvantaging the church’s effort to pro‐
vide useful information to its parishioners, not lifting a bur‐
den from religious practice. The only governmental interests
the Town offered in support of its Code were “preserving the
Town’s aesthetic appeal and traffic safety.” Id. at 171. The
Court found those interests to be woefully lacking, falling far
short of a compelling state interest and a narrowly tailored
response. Id. at 172. In order to make Reed comparable to the
case before us, we would need to postulate a Sign Code that
restricted temporary directional signs for everyone except
places of worship, and that left the latter free to use whatever
signs they wanted. But that is not what Reed was about, and
so we must break new ground here.
No. 20‐2175 17
C
We will assume for the sake of argument that free exercise
of religion involves speech, at least most of the time. One can
imagine religious practices that do not involve words, such as
a silent prayer vigil, or a pilgrimage or hajj to a sacred shrine,
or even the act of wearing religiously prescribed clothing. Per‐
haps in some instances those actions would qualify as sym‐
bolic speech, see, e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989),
but others would not. Nonetheless, we recognize the im‐
portance of words to most religious exercise, whether those
words appear in a liturgy, or in the lyrics to sacred music, or
in a homily or sermon. And we understand the point the Re‐
publicans are making: EO43 draws lines based on the purpose
of the gathering, and the type of speech that is taking place
sheds light on that purpose. Someone sitting in a place of wor‐
ship for weekly services is allowed to be part of a group larger
than 50, but if the person in the front of the room is talking
about a get‐out‐the‐vote effort or is giving a lecture on the Im‐
pressionists, no more than 50 attendees are permitted. (Some
of the Republicans’ other hypotheticals are a little more
strained: if the 23rd Psalm is the scriptural passage for the
Sabbath or a Sunday service for one group, and another group
wants to use the identical text for a discussion of ancient po‐
etry, is the different treatment based on content or something
else?)
But the Free Exercise Clause has always been about more
than speech. Otherwise, why bother to include it at all—the
First Amendment already protects freedom of speech, and we
know that speech with a religious message is entitled to just
as much protection as other speech. See Rosenberger v. Rector
and Visitors of the Univ. of Va., 515 U.S. 819, 837 (1995).
18 No. 20‐2175
Moreover, the Rosenberger Court held, nondiscriminatory fi‐
nancial support for religious organizations would not run
afoul of the Establishment Clause, because the program was
neutral toward religion. Id. at 840. Indeed, the Court acknowl‐
edged, it was “something of an understatement to speak of
religious thought and discussion as just a viewpoint, as dis‐
tinct from a comprehensive body of thought.” Id. at 831.
However one wishes to characterize religion (including
the decision to refrain from identifying with any religion),
there can be no doubt that the First Amendment singles out
the free exercise of religion for special treatment. Rather than
being a mechanism for expressing views, as the speech, press,
assembly, and petition guarantees are, the Free Exercise
Clause is content based. The mixture of speech, music, ritual,
readings, and dress that contribute to the exercise of religions
the world over is greater than the sum of its parts.
The Supreme Court made much the same point in Ho‐
sanna‐Tabor, as we noted earlier, when it responded to the ar‐
gument that the general right to freedom of association suf‐
ficed to protect religious groups, and thus there was no need
for a ministerial exception to the employment discrimination
rules. If that were true, the Court said, then there would be no
difference between the associational rights of a social club and
those of the Lutheran Church. 565 U.S. at 189. “That result,”
the Court wrote, “is hard to square with the text of the First
Amendment itself, which gives special solicitude to the rights
of religious organizations.” Id.
Just so here. The free exercise of religion covers more than
the utterance of the words that are part of it. And, while in the
face of a pandemic the Governor of Illinois was not compelled
to make a special dispensation for religious activities, see
No. 20‐2175 19
Elim, nothing in the Free Speech Clause of the First Amend‐
ment barred him from doing so. As in the cases reconciling
the Free Exercise and Establishment Clauses, all that the Gov‐
ernor did was to limit to a certain degree the burden on reli‐
gious exercise that EO43 imposed.
We stress that this does not mean that anything a church
announces that it wants to do is necessarily protected. If the
church wants to hold a Labor Day picnic, or a synagogue
wants to sponsor a “Wednesday night at the movies” event,
or a church decides to host a “battle of the bands,” the church
or synagogue would be subject to the normal restrictions of
50 people or fewer. We have no occasion here to opine on
where the line should be drawn between religious activities
and more casual gatherings, but such a line surely exists. And
it is important to recall that EO43 does not say that all activi‐
ties of religious organizations are exempt from its strictures.
Only the “free exercise of religion” is covered, and those
words, taken directly from the First Amendment, provide a
limiting principle.
Because the exercise of religion involves more than simple
speech, the equivalency urged on us by the Republicans be‐
tween political speech and religious exercise is a false one.
Reed therefore does not compel the Governor to treat all gath‐
erings alike, whether they be of Catholics, Lutherans, Ortho‐
dox Jews, Republicans, Democrats, University of Illinois
alumni, Chicago Bears fans, or others. Free exercise of religion
enjoys express constitutional protection, and the Governor
was entitled to carve out some room for religion, even while
he declined to do so for other activities.
20 No. 20‐2175
III
Before concluding, we must also comment on the Repub‐
licans’ alternative argument: that the Governor is allowing
Black Lives Matter protestors to gather in groups of far more
than 50, but he is not allowing the Republicans to do so. They
concede that their argument depends on practice, not the text
of the executive order. The text contains no such exemption,
whether for Black Lives Matter, Americans for Trump, Save
the Planet, or anyone else. Should the Governor begin picking
and choosing among those groups, then we would have little
trouble saying that Reed would come into play, and he would
either have to impose the 50‐person limit on all of them, or on
none of them.
The fact that the Governor expressed sympathy for the
people who were protesting police violence after the deaths
of George Floyd and others, and even participated in one pro‐
test, does not change the text of the order. Nonetheless, the
Republicans counter, there are de facto changes, even if not de
jure changes. Essentially, they charge that the state should not
be leaving enforcement up to the local authorities, and that
they are aggrieved by the lax or even discriminatory levels of
enforcement that they see. Underenforcement claims are hard
to win, however, as we know from cases such as DeShaney v.
Winnebago County Department of Social Services, 489 U.S. 189
(1989). It is also difficult to prevail in a case accusing the police
of racial profiling. See, e.g., Chavez v. Ill. State Police, 251 F.3d
612 (7th Cir. 2001). Although we do not rule out the possibility
that someone might be able to prove this type of favoritism in
the enforcement of an otherwise valid response to the
COVID‐19 pandemic, the record in this case falls short.
No. 20‐2175 21
Indeed, the problems of late have centered on ordinary crim‐
inal mobs looting stores, not on peaceful protestors.
The Republicans’ brief offers only slim support for the
proposition that the 50‐person ban on gatherings does not ap‐
ply to the Black Lives Matters speakers. It first points out that
the Governor issued a press release expressing sympathy for
the protests. But such a document, untethered to any legisla‐
tive or executive rule‐making process, cannot change the law.
Cf. Medellin v. Texas, 552 U.S. 491, 523–32 (2008) (holding that
President George W. Bush’s memorandum in response to an
international court’s decision was “not a rule of domestic law
binding in state and federal courts”). The Republicans also
complain that the Chicago police stood by idly while the Black
Lives Matters protests took place, but that they dispersed “Re‐
open Illinois” gatherings. Notably absent from these allega‐
tions, however, is any proposed proof that state actors, not
municipal actors, were engaged in this de facto discrimination.
Finally, the Republicans contend that the Governor prom‐
ised that the National Guard troops he deployed to Chicago
would not “interfere with peaceful protesters’ first amend‐
ment rights.” Aside from the fact that this argument appears
for the first time in their Reply Brief and is thus waived, it is
unpersuasive. The Governor made clear that the National
Guard was deployed to protect property against unrest, not
to enforce the COVID‐19 order. He did not single out any cat‐
egory of protester by message. We conclude that the district
court did not abuse its discretion when it found that none of
these allegations sufficed to undermine the Governor’s likeli‐
hood of success on the merits, or for that matter to undercut
his showing that the state would suffer irreparable harm if
EO43 were set aside.
22 No. 20‐2175
IV
We conclude with some final thoughts. The entire premise
of the Republicans’ suit is that if the exemption from the 50‐
person cap on gatherings for free‐exercise activities were
found to be unconstitutional (or if it were to be struck down
based on the allegedly ideologically driven enforcement strat‐
egy), they would then be free to gather in whatever numbers
they wished. But when disparate treatment of two groups oc‐
curs, the state is free to erase that discrepancy in any way that
it wishes. See, e.g., Stanton v. Stanton, 429 U.S. 501, 504 n.4
(1977) (“[W]e emphasize that Utah is free to adopt either 18 or
21 as the age of majority for both males and females for child‐
support purposes. The only constraint on its power to choose
is … that the two sexes must be treated equally.”). In other
words, the state is free to “equalize up” or to “equalize
down.” If there were a problem with the religious exercise
carve‐out (and we emphasize that we find no such problem),
the state would be entitled to return to a regime in which even
religious gatherings are subject to the mandatory cap. See
Elim, 962 F.3d 341. This would leave the Republicans no better
off than they are today.
We AFFIRM the district court’s order denying preliminary
injunctive relief to the appellants.