what remedy just the republican party seek and how is your remedy consistent with section eight of the executive order which seems to contemplate that if any part of that order has a problem that out among other things i mean there's actually a whole line of cases going back to my knowledge something like forty or fifty years where the supreme court says if you're looking for equality equality be can be can be the quality can be down and if the churches were to lose their ability to have gatherings of more than fifty then you and they and everyone else would be in exactly the same position and you wouldn't have any along i see no logical stopping point from your position certainly political speech whether it's the republican party the democratic party the green party the right to life association the you know save the planet people who never they're all engaged in speech that's protected by the st amendment and i think the logic of your position which may be where one has to go i don't rule that out but the logic of your position is that there can be asked the st question why why isn't you know under breed you just have to be the same but it doesn't necessarily mean the governor has to give up on his concern about very large indoor gatherings ahead go ahead judge bear i just i still don't understand your position because really you know it doesn't have to be about severability as judge wood said really what you're asking for is all or nothing in the churches here have an additional interest as you know the order of the motions panel and as the district quite pointed out it's not just speech it's also free exercise and so really the question seems to be that when the government has an admittedly admittedly compelling interest and stemming  ten demick can it carve out a very narrow exception this isn't one of those cases where the prohibition was riddled with exceptions i mean i would be very concerned if in fact the order actually had an exception for black lives much matter protests because then you're talking apples to apples you're talking political speech to political speech and it's the same right at issue here the exception that's been carved out for churches isn't just speech to speech it's not apples to apples but can you think of a single case in which the supreme court has struck down a provision intended to facilitate free exercise of religion that was not but under the free speech clause where would we draw the line what about said next protest that comes along that wants an exception they want to go out and express their st amendment rights how do we distinguish st amendment rights it's your job since you're the one who's attacking the government governors executive order for not drawing the line you think should been draw you should have some theory of right and you're challenging it you're the one where the supreme court has recognized no political party and you occupied a unique space you know our system and so it was that there might be baldly portable for instance you know the free exercise context and the free exercise the st amendment itself treats them as two distinct categories which is why religion isn't subsume simply within speech but has its own category and so the st amendment itself treats them a little bit as apples and oranges it says they're not the same thing and you keep saying they both live at the heart of the st amendment but you're in the free speech as and free exercise lives in a different part of the st amendment albeit an overlapping one a great  thing about all the cases i can think of read being one of them but one of many not of them and none of the cases that have reached the supreme court in in the emergency mode that said that to have are not situations where the state writ large is trying to accommodate free exercise interests they're all cases in which there's been some failure allegedly  free exercise is somehow disadvantaged and the question is is that ok in the court has said you know by these even rather evenly divided thoughts but the court has recognized the pandemic and has said that best and read the exception was so large you know for the signs and it called into question how compelling the interest wess here nobody doubts the compelling ness of the compelling interests everyone agrees that that interest is sound and here the exemption is really quite narrow i'm not even convinced i mean this is this is not a detailed executive order i'm not even convinced that in fact you know the state in its brief says that this would not be the case that all of the apples to apples activity that a church might have like a fundraiser you know or a church picnic that those kind of things would be counted as free exercise and those are analogous to some of the activities that the republican party intends to plaintiffs would like to meet in person in groups larger than fifty people during the pandemic but the governor's limit on the in person gathering seeks to preserve the spread of covert nineteen and the exemption the religious exercise does not render this effort to protect the public health and safety unconstitutional i have a question for you about the black slaves matter alleged exception you know the plaintiffs say that the governor has accepted in treated differently black lives matter from june in which the governor sympathized with the st amendment rights of the protesters and since then he has issued two executive orders and either of those carried an exemption for any type of protest so we d think that confirms that there was no quiet exemption to begin with and said we are dealing here with the exemption for religious exercise and the supreme court has long held that when the government removes a burden from religious exercise it may not accommodate other rights or activity in the same way and so we believe the order is constitutional under any standard ever you know mr goodnow wouldn't you say though i mean there are a lot of churches around and surely to the extent this order is permitting fifty says it doesn't move in the same direction as the compelling interest the governor has for the general restrictions that this court looked at in the l m k yes your honor but at the time these orders were entered l and i was seeing some relative progress in its fight against the virus and cyber gov made a reasonable policy choices start opening up the state for example now gathering with up to fifty people are allowed and that doesn't serve the interest as stopping the virus and the religious exercises look at move measures taken during a pandemic is the jacobson standard or view and there the supreme court recognise that a state need protect itself from the spread of the disease so long as this measure is substantially related to the public health and also does not roll in beit a constitutional right that you support me see just two different ways of looking at jacobson as i understand the republican party position there is looking only at the broader type of balancing that's going on in which the public health plays one part but the concern for freedom of religion and free exercise plays another part and so it's a somewhat more broad reading of jacobson where substantial relationship with the public health but because the pandemic has been going on with so many months a response of the public health will involve balancing other interests that maybe took a backseat to riggs the beginning of a pandemic and so that's why we believe jacob still now we're not asking for jacobson deference forever as long as code nineteen at last with the advent of vaccine or treatment or maybe a significant change in social behavior as some other countries have seen illinois will hopefully be able to curb the spread of this virus for a longer period of time and to a greater extent it's going to how should the fact that this is an election year and the election is quickly approaching how should that impact the court's analysis your honor we don't think that changes the analysis because we agree that political speech is a very important interest if especially during an election year at the supreme court has emphasized such as in a cutter against wilkinson that the protections for fundamental rights do not need to march in lockstep so for example the court pointed out in that case that the state of ohio allowed prisoners to meet for religious reasons for not political ones and that was ok because of th an election year religion is entitled to a special solicitude which is considered the best of our traditions are a nation so i don't think it changes the ultimate outcome of this case should it be a consideration for us in the balancing of the harms your honor i think it could be a factor but the balance thing about harms would still weigh in favor of not granting the injunction here and that's for a couple of reasons st plaintiffs are still able to meet in groups of up to fifty people and so we not prohibiting their speech completely but rather just limiting in person gatherings to fifty people so they can so accomplish many of the goals they outlined such as press conferences and go in banks and the like and  would like to conduct in groups larger than fifty people such as house parties luncheons that's taurus in rallies just to name a few and that's just plain to if they're all political gatherings who are allowed this would greatly endangered the public health and  the injunction here regardless of whether it's an election year or not so there's some discussion about whether we are approaching this under a strict scrutiny lens or whether intermediate scrutiny and you argued in your brief for me but why isn't it the case that just as in read against gilbert you really don't know d what kind of event you have until you listen to the speech you know it's either candidate x s stump speech or it's pastor wives religious service and that makes it sound like a content restriction and it makes it sound now that i understand everybody concedes compelling interest it makes it sound as though the strict narrow tailoring has to be so how is this narrowly tailored your  honor so to answer the st part of your question the court's an unfortunate officials would not necessarily need to listen to the speech as the activity for example if an an authority went to a church and there was a service being held  clearly a religious exercise so there are other aspects of the activity officials can list to determine whether it's religious exercise or not but even at those courts applies church scrutiny we believe that the order is there really tailored because it involve involves balancing two compelling interests and lead the government had only less than two interests traffic safety and aesthetic appeal and a regulation of fines that treated sometimes different than other did not serve these two interests like your interests are protecting the public health and safety from the buyers as well as protecting the exercise of religion and the or is it just serve a balance of those two interests do you think right was just family lawyer to me maybe they should have said inguish between directional signs versus i don't logically or political and so i believe that perhaps the area there do not have that strong of an interest and and regulating this is designed so i wouldn't say that it was babri lawyer but just based upon the decision that we have it looks to clear the courts reasoning said you've only articulated two interests in the court pointed that out and this regulation does not serve those two interests but here we have articulated two different interests which can be know we've talked before and in the you are getting me to identify some of the statutes which treat religion give it a place of special solicitude the governor choose to balance things differently and say the republican party and the political speech the exemption and religious worship not the exception and him and the justification that he was trying to balance well public health and safety and political expression but that be  i think that would be a more difficult argument to make because there is not that same tradition of we need treatment there's nothing in the st amendment that says political activity is especially protected on its own inside the st amendment has these two clauses directed towards counsel noted at a couple of points and the lines up the governor has chosen to draw lies or he hands on like is reasonable and he returned to judge once a question for a pope in council should this court find out the exemption should be  stretched more broadly that i think that would only apply to the executive order in place which expires on august nd and we have no way of knowing whether the next order would then continue to chip carry the exemptions religious exercise given the potential to the public if the exemption were stretched more broadly i would also push back on opposing counsel's point that the exemption would only need to stop a political speech because we they've already shown that that's not their position they try to consolidate this case w a right to life committee case in which they made the exact same arguments for expresses associations talking on matters of social concerns so we have already seen from the procedural history of the case there's not really a logical stopping point to granting  honor i think there could be a scenario where a governor after the no way to create a policy exemption but that's a far cry from what happened here it made sense for the governor to make these political statements sympathizing with the rights of these protesters given the social strike that erupted across our nation inside our position is that when these political statements are made they don't necessarily create a policy exemption and there wasn't one here given that the subsequent executive orders if not  an explicit exemption which would have been the logical next step and so we do think again that the only exemption here is religious exercise and that's i would just reiterate that even if this court were to apply strict scrutiny we think that  for protection whereas you know a family about the ten commandments in the context of a religious service what so when i was speaking with those in council i said it's not clear to me that the church fundraiser or the church any activity undertaken by a place of worship and so i do agree with the way your honor has characterized it as this court has no other questions we'd like to rest on the arguments made in our brief i see that i'm almost out of time and we would a you have consequences and in create policy there why do the religious expression of illinois is very broad i would venture to say that more people in illinois each week and spend church services than attend republican rallies if they were permitted this idea that it's a narrow exception i would want you to read remember the government as the court assumed a compelling interest for the government and said it wasn't merely tailored because it was under inclusive and that's the same problem we have here it's hundreds of city and took the finally of the balance of harms i just remind you of the six circuits decision in roberts vs nice that it's about the relative balance