Case: 3:20-cv-50153 As of: 05/24/2020 03:29 PM CDT 1 of 7
APPEAL,JOHNSTON
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.3.2 (Rockford)
CIVIL DOCKET FOR CASE #: 3:20−cv−50153

The Beloved Church et al v. Pritzker et al Assigned to: Honorable John Z. Lee Referred to: Honorable Iain D. Johnston Demand: $75,000 Case in other court: 20−01757 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 04/30/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Stephen Cassell

represented by Peter Christopher Breen Thomas More Society 309 W Washington St Ste 1250 Chicago, IL 60606 312 782 1680 Email: pbreen@thomasmoresociety.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas L. Brejcha , Jr. Thomas More Society 19 South LaSalle Street Suite 603 Chicago, IL 60603 (312)782−1680 Email: tbrejcha@thomasmoresociety.org ATTORNEY TO BE NOTICED

Martin J. Whittaker Thomas More Society 309 West Washintgon Suite 1250 Chicago, IL 60606 3127821680 Email: privatrecht@gmail.com ATTORNEY TO BE NOTICED

Plaintiff
The Beloved Church an Illinois Not−for−Profit Corporation

represented by Martin J. Whittaker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Christopher Breen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas L. Brejcha , Jr. (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
David Snyders Sheriff of Stephenson County, Illinois

represented by Benjamin Matthew Jacobi O'Halloran Kosoff Geitner & Cook, LLC 650 Dundee Road

Case: 3:20-cv-50153 As of: 05/24/2020 03:29 PM CDT 2 of 7

Defendant Jay Robert Pritzker Governor of the State of Illinois
Defendant Craig Beintema Administrator of the Department of Public Health of Stephenson County, Illinois Defendant

Suite 475 Northbrook, IL 60062 (847) 291−0200 Email: bjacobi@okgc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Graham Wells Office of the Attorney General of Illinois Chief, Public Interest Division 100 W. Randolph St. 12th Floor Chicago, IL 60601 (312) 814−1134 Email: cwells@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly C. Bauer Office of the Illinois Attorney General General Law Bureau − Civil Rights Unit 100 W. Randolph St. 13th Floor Chicago, IL 60601 (312) 814−3119 Email: kbauer@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hal Dworkin Office Of Illinois Attorney General 100 W. Randolph 13th Fl. Chicago, IL 60613 (312) 814−5159 Email: hdworkin@atg.state.il.us ATTORNEY TO BE NOTICED
R. Douglas Rees Office of the Illinois Attorney General 100 W. Randolph Street 12th Floor Chicago, IL 60601 (312) 814−3498 Email: drees@atg.state.il.us ATTORNEY TO BE NOTICED
Sarah Hughes Newman Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 (312) 814−6131 Email: snewman@atg.state.il.us ATTORNEY TO BE NOTICED
represented by Benjamin Matthew Jacobi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:20-cv-50153 As of: 05/24/2020 03:29 PM CDT 3 of 7

Steve Schaible Chief of Police of the Village of Lena, Illinois

represented by Robert C. Pottinger Barrick Switzer et al 6833 Stalter Drive 1st Floor Rockford, IL 61108 (815) 962−6611 Email: rcpottinger@bslbv.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darron M. Burke Barrick, Switzer, Long, Balsley & Van Evera, LLP 6833 Stalter Drive Rockford, IL 61108 (815) 962−6611 Email: dburke@bslbv.com ATTORNEY TO BE NOTICED
Dominick L Lanzito Peterson Johnson & Murray − Chicago LLC 200 West Adams Street Suite 2125 Chicago, IL 60606 312 724−8024 Email: dlanzito@pjmchicago.com ATTORNEY TO BE NOTICED
Jennifer Lynn Turiello Peterson, Johnson & Murray Chicago LLC 200 W. Adams Suite 2125 Chicago, IL 60606 (312)782−7150 Email: jturiello@pjmchicago.com ATTORNEY TO BE NOTICED
Kevin Mark Casey Peterson, Johnson & Murray Chicago LLC 200 West Adams Street Suite 2125 Chicago, IL 60606 (312)724−8032 Email: kcasey@pjmchicago.com ATTORNEY TO BE NOTICED
Paul A O'Grady Peterson Johnson and Murray Chicago LLC 200 West Adams Street Suite 2125 Chicago, IL 60606 312 782−7150 Email: pogrady@pjmchicago.com ATTORNEY TO BE NOTICED
Thomas A. Green Barrick, Switzer, Long, Balsley & Van Evera 6833 Stalter Drive Rockford, IL 61108 (815) 962−6611 Email: tgreen@bslbv.com ATTORNEY TO BE NOTICED

Case: 3:20-cv-50153 As of: 05/24/2020 03:29 PM CDT 4 of 7

Date Filed 04/30/2020 04/30/2020 04/30/2020 04/30/2020 04/30/2020 04/30/2020 04/30/2020
04/30/2020 04/30/2020 04/30/2020
04/30/2020
04/30/2020

# Docket Text
1 COMPLAINT filed by Stephen Cassell; Filing fee $ 400, receipt number 0752−16976245. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Whittaker, Martin) (Entered: 04/30/2020)
2 CIVIL Cover Sheet (Whittaker, Martin) (Entered: 04/30/2020)
3 ATTORNEY Appearance for Plaintiffs Stephen Cassell, The Beloved Church by Martin J. Whittaker (Whittaker, Martin) (Entered: 04/30/2020)
4 ATTORNEY Appearance for Plaintiffs Stephen Cassell, The Beloved Church by Martin J. Whittaker (Whittaker, Martin) (Entered: 04/30/2020)
5 ATTORNEY Appearance for Plaintiffs Stephen Cassell, The Beloved Church by Peter Christopher Breen (Breen, Peter) (Entered: 04/30/2020)
6 MOTION by Plaintiffs Stephen Cassell, The Beloved Church for temporary restraining order , MOTION by Plaintiffs Stephen Cassell, The Beloved Church for preliminary injunction (Breen, Peter) (Entered: 04/30/2020)
7 MEMORANDUM by Stephen Cassell, The Beloved Church in support of motion for temporary restraining order, motion for preliminary injunction 6 (Attachments: # 1 Exhibit A − Proclamation, 3−9−20, # 2 Exhibit B − Proclamation, 4−1−20, # 3 Exhibit C − EO 2020−18)(Breen, Peter) (Entered: 04/30/2020)
CASE ASSIGNED to the Honorable John Z. Lee and Honorable Iain D. Johnston. Designated as Magistrate Judge the Honorable Iain D. Johnston. Case assignment: Random assignment. (jp, ) (Entered: 04/30/2020)
8 Pursuant to the Fourth Amended General Order 19−0007, dated 6/27/2019, this case is assigned to the Honorable John Z. Lee and referred generally to the Honorable Iain D. Johnston. Signed by Executive Committee on 6/27/2019. (jp, ) (Entered: 04/30/2020)
9 ORDER Third Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 4/24/2020. Mailed notice (jp, ) (Entered: 04/30/2020)
10 MINUTE entry before the Honorable Robert M. Dow, Jr: This matter is before Judge Dow as emergency judge. Plaintiffs have filed a motion for temporary restraining order and preliminary injunction [docket number 592 on the emergency docket and docket number 6 on the regular civil docket in Case No. 3:20−cv−50153]. The motion will be handled by the assigned judge, Judge Lee. The Clerk is directed to terminate the motion on the emergency docket, as all further filings and rulings will be made on the regular civil docket. Mailed notice (cdh, ) (Entered: 04/30/2020)
11 MINUTE entry before the Honorable John Z. Lee: Plaintiffs have filed a complaint, a motion for temporary restraining order and for preliminary injunction 6 as well as a supporting memorandum and attachments 7 . Plaintiffs' counsel attests that the materials have been provided via email to Benjamin Jacobi (at a okgc.com email address), who (according to Plaintiffs' counsel) is an attorney for Defendants Snyders and Beintema; Defendant Schaible (at what appears to be a personal email address); and Sarah Hunger, a Deputy Solicitor General at the Office of the Illinois Attorney General. It is unclear, however, whether Plaintiffs have verified that that the recipients have received the materials. Accordingly, Plaintiffs' counsel is ordered to file a short statement no later than 5:00 p.m. today, Thursday, April 30, 2020, attesting that the intended recipients have received the materials. Plaintiffs' counsel also is ordered to meet and confer with Defendants and/or their counsel to explore ways of resolving this issue, including whether the parties would agree to a standstill agreement while the motion is briefed and considered. Plaintiffs also are ordered to effectuate service pursuant to Fed. R. Civ. P. 4, as soon as possible, but no later than 5:00 p.m., on Friday, May 1, 2020. Defendants are ordered to file a response to Plaintiffs' motion for temporary restraining order and for preliminary injunction 6 no later than 5:00 p.m. on

Case: 3:20-cv-50153 As of: 05/24/2020 03:29 PM CDT 5 of 7

04/30/2020 04/30/2020 05/01/2020 05/01/2020 05/01/2020
05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020

Friday, May 1, 2020. The memorandum should address, among other things, whether the parties have met and conferred as ordered above and the results of those discussions, as well as what, if any, enforcement actions the Sheriff of Stephenson County and the Chief of Police of Stephenson County would take, in the event Plaintiffs convened for services this Sunday with or without observing the facial mask and social distancing restrictions. Plaintiffs need not, but may, file a reply memorandum no later than 2:00 p.m. on Saturday, May 2, 2020. Once the briefs have been received, the Court will take the motion under advisement and issue a ruling as soon as practicable. Furthermore, given that Plaintiffs waited a week after Governor Pritzker's extension of the stay−at−home order before filing this action and have not provided any reasons for their delay, Plaintiffs should not expect the Court to rule on the motion prior to this Sunday. To the extent that there are any exigent circumstances between today and this Sunday, much can be attributed to Plaintiffs' own actions. Mailed notice (ca, ) (Entered: 04/30/2020)
12 Counsel statement re actual, informal service STATEMENT by Stephen Cassell (Whittaker, Martin) (Entered: 04/30/2020)
13 ATTORNEY Appearance for Defendants Craig Beintema, David Snyders by Benjamin Matthew Jacobi (Jacobi, Benjamin) (Entered: 04/30/2020)
14 ATTORNEY Appearance for Defendant Steve Schaible by Robert C. Pottinger (Pottinger, Robert) (Entered: 05/01/2020)
15 ATTORNEY Appearance for Defendant Steve Schaible by Darron M. Burke (Burke, Darron) (Entered: 05/01/2020)
16 MINUTE entry before the Honorable John Z. Lee: Illinois Executive Order 2020−32, dated April 30, 2020, permits individuals to leave their residences "[t]o engage in the free exercise of religion, provided that such exercise [] comply with Social Distancing Requirements and the limit on gatherings of more than ten people in keeping with CDC guidelines for the protection of public health." The order continues, "Religious organizations and houses of worship are encouraged to use online or drive−in services to protect the health and safety of their congregants." It is clear that online services are not subject to the 10−person limitation. In their response to Plaintiffs' motion for temporary restraining order and preliminary injunction, Defendants should address how the State defines "drive−in services" and whether such services would be subject to the 10−person limitation. Mailed notice (ca, ) (Entered: 05/01/2020)
17 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Kelly C. Bauer (Bauer, Kelly) (Entered: 05/01/2020)
18 ATTORNEY Appearance for Defendant Steve Schaible by Dominick L Lanzito (Lanzito, Dominick) (Entered: 05/01/2020)
19 ATTORNEY Appearance for Defendant Steve Schaible by Paul A O'Grady (O'Grady, Paul) (Entered: 05/01/2020)
20 ATTORNEY Appearance for Defendant Steve Schaible by Kevin Mark Casey (Casey, Kevin) (Entered: 05/01/2020)
21 ATTORNEY Appearance for Defendant Steve Schaible by Jennifer Lynn Turiello (Turiello, Jennifer) (Entered: 05/01/2020)
22 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Hal Dworkin (Dworkin, Hal) (Entered: 05/01/2020)
23 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Christopher Graham Wells (Wells, Christopher) (Entered: 05/01/2020)
24 ATTORNEY Appearance for Defendant Steve Schaible by Thomas A. Green (Green, Thomas) (Entered: 05/01/2020)
25 ATTORNEY Appearance for Defendant Jay Robert Pritzker by R. Douglas Rees (Rees, R.) (Entered: 05/01/2020)
26 MEMORANDUM by Jay Robert Pritzker in Opposition to motion for temporary restraining order, motion for preliminary injunction 6 (Attachments: # 1 Exhibit Exhibit A − Current Executive Order (EO 2020−32))(Wells, Christopher) (Entered:

Case: 3:20-cv-50153 As of: 05/24/2020 03:29 PM CDT 6 of 7

05/01/2020
05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/02/2020
05/02/2020 05/02/2020 05/02/2020 05/02/2020
05/02/2020 05/03/2020 05/04/2020 05/04/2020 05/04/2020

05/01/2020)
27 RESPONSE by Craig Beintema, David Snydersin Opposition to MOTION by Plaintiffs Stephen Cassell, The Beloved Church for temporary restraining order MOTION by Plaintiffs Stephen Cassell, The Beloved Church for preliminary injunction 6 (Jacobi, Benjamin) (Entered: 05/01/2020)
28 MOTION by Defendant Jay Robert Pritzker for leave to file excess pages instanter (Bauer, Kelly) (Entered: 05/01/2020)
29 RESPONSE by Defendant Steve Schaible to motion for temporary restraining order, motion for preliminary injunction 6 (O'Grady, Paul) (Entered: 05/01/2020)
30 NOTICE by Steve Schaible re Response 29 (O'Grady, Paul) (Entered: 05/01/2020)
31 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Sarah Hughes Newman (Newman, Sarah) (Entered: 05/01/2020)
32 RESPONSE by Defendant Jay Robert Pritzker to text entry,,, 16 Response to the Court's Minute Order re: Drive−In Services (Wells, Christopher) (Entered: 05/01/2020)
33 REPLY by Stephen Cassell, The Beloved Church to memorandum in support of motion, 7 , MOTION by Plaintiffs Stephen Cassell, The Beloved Church for temporary restraining order MOTION by Plaintiffs Stephen Cassell, The Beloved Church for preliminary injunction 6 , memorandum in opposition to motion 26 , response in opposition to motion, 27 , Response 32 , Response 29 (Breen, Peter) (Entered: 05/02/2020)
34 DECLARATION of Stephen Cassell regarding reply to response to motion, 33 (Breen, Peter) (Entered: 05/02/2020)
35 MOTION by Plaintiff The Beloved ChurchLeave to file oversized Reply (Whittaker, Martin) (Entered: 05/02/2020)
36 EXHIBIT by Plaintiffs Stephen Cassell, The Beloved Church 5−2−20 Order of 6th Cir in Maryville Baptist Church, Inc, et al v. Andy Beshear, Case No. 20−5427 regarding reply to response to motion, 33 (Breen, Peter) (Entered: 05/02/2020)
37 MINUTE entry before the Honorable John Z. Lee: Plaintiffs The Beloved Church and Stephen Carrell filed a motion for temporary restraining order and preliminary injunction on 4/30/2020. In their motion, Plaintiffs seek injunctive relief to permit them to gather for worship at their church on Sunday, 5/3/20, despite Governor Pritzker's Executive Order 2020−32 (dated 4/30/2020). The Court ordered expedited briefing, and Defendants filed their responses at 5:00 p.m. on 5/1/20, and Plaintiffs filed their reply at 2:00 p.m. on 5/2/20. After due consideration, the Court denies Plaintiffs' motion for temporary restraining order and preliminary injunction 6 . The Court will issue a written opinion and order explaining its ruling shortly. Mailed notice (ca, ) (Entered: 05/02/2020)
38 MINUTE entry before the Honorable John Z. Lee: Motions to file oversized briefs 28 and 35 are granted.Mailed notice (ca, ) (Entered: 05/02/2020)
39 MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 5/3/20.Mailed notice(ca, ) (Entered: 05/03/2020)
40 WAIVER OF SERVICE returned executed by Stephen Cassell, The Beloved Church. Craig Beintema waiver sent on 4/30/2020, answer due 6/29/2020. (Whittaker, Martin) (Entered: 05/04/2020)
41 WAIVER OF SERVICE returned executed by Stephen Cassell, The Beloved Church. David Snyders waiver sent on 4/30/2020, answer due 6/29/2020. (Whittaker, Martin) (Entered: 05/04/2020)
42 WAIVER OF SERVICE returned executed by Stephen Cassell, The Beloved Church. Jay Robert Pritzker waiver sent on 4/30/2020, answer due 6/29/2020. (Whittaker, Martin) (Entered: 05/04/2020)

Case: 3:20-cv-50153 As of: 05/24/2020 03:29 PM CDT 7 of 7

05/04/2020 05/04/2020 05/04/2020 05/04/2020 05/05/2020 05/05/2020 05/05/2020 05/06/2020 05/06/2020 05/06/2020 05/06/2020 05/06/2020 05/06/2020
05/06/2020

43 ATTORNEY Appearance for Plaintiffs Stephen Cassell, The Beloved Church by Thomas L. Brejcha, Jr (Brejcha, Thomas) (Entered: 05/04/2020)
44 Western Division ADR Notification (jp, ) (Entered: 05/04/2020)
45 WAIVER OF SERVICE returned executed by Steve Schaible. Steve Schaible waiver sent on 4/30/2020, answer due 6/29/2020. (Pottinger, Robert) (Entered: 05/04/2020)
46 NOTICE of appeal by Stephen Cassell, The Beloved Church regarding orders 37 , 39 Filing fee $ 505, receipt number 0752−16986311. Receipt number: n (Whittaker, Martin) (Entered: 05/04/2020)
47 MOTION by Plaintiffs Stephen Cassell, The Beloved ChurchInjunction Pending Appeal (Whittaker, Martin) (Entered: 05/05/2020)
48 MINUTE entry before the Honorable John Z. Lee: Defendant's response to Plaintiffs' emergency motion for injunction pending appeal 47 is due by 3:00 p.m. on 5/6/20. The Court will issue a ruling once the response is filed.Mailed notice (ca, ) (Entered: 05/05/2020)
49 MINUTE entry before the Honorable John Z. Lee:Minute order 48 is amended: Defendants' response to Plaintiffs' emergency motion is limited to five pages.Mailed notice (ca, ) (Entered: 05/05/2020)
50 RESPONSE by Craig Beintema, David Snyders to MOTION by Plaintiffs Stephen Cassell, The Beloved ChurchInjunction Pending Appeal 47 (Jacobi, Benjamin) (Entered: 05/06/2020)
51 RESPONSE by Jay Robert Pritzkerin Opposition to MOTION by Plaintiffs Stephen Cassell, The Beloved ChurchInjunction Pending Appeal 47 (Wells, Christopher) (Entered: 05/06/2020)
52 RESPONSE by Steve Schaible to MOTION by Plaintiffs Stephen Cassell, The Beloved ChurchInjunction Pending Appeal 47 (O'Grady, Paul) (Entered: 05/06/2020)
53 NOTICE by Steve Schaible re response to motion 52 (O'Grady, Paul) (Entered: 05/06/2020)
54 TRANSMITTED to the 7th Circuit the short record on notice of appeal 46 . (jp, ) (Entered: 05/06/2020)
55 ORDER : The Court previously denied Plaintiffs' motion for a temporary restraining order and a preliminary injunction requesting that the Court enjoin Governor Pritzker from enforcing his latest stay−at−home order of April 30, 2020. See 5/3/2020 Memorandum Opinion and Order, ECF No. 39 ("May 3 Order"). Having filed a notice of appeal, Plaintiffs now urge the Court to enjoin enforcement of Pritzker's order while the appeal is pending. See Fed. R. Civ. P. 62. As the Seventh Circuit has explained, the standard for deciding motions for injunctions pending appeal is no different "from that applicable to a motion to stay the district court's judgment." Cavel Int'l, Inc. v. Madigan, 500 F.3d 544, 547 (7th Cir. 2007). In turn, "[t]he standard for granting a stay pending appeal mirrors that for granting a preliminary injunction." In re A & F Enterprises, Inc. II, 742 F.3d 763, 766 (7th Cir. 2014) (citation omitted). That means that courts "consider the moving party's likelihood of success on the merits, the irreparable harm that will result to each side if the stay is granted or denied in error, and whether the public interest favors one side or the other." Id. Given that the same standard applies, and that Plaintiffs have failed to introduce any new facts or arguments in support of the present motion, the Court denies Plaintiffs' request for an injunction pending appeal for the reasons explained in the May 3 Order denying Plaintiffs' motion for a temporary restraining order and a preliminary injunction. Signed by the Honorable John Z. Lee on 5/6/20. Mailed notice(ca, ) (Entered: 05/06/2020)
56 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 46 ; USCA Case No. 20−1757. (jp, ) (Entered: 05/06/2020)

 
 Case: 3:20-cv-50153 Document #: 1 Filed: 04/30/20 Page 1 of 33 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-forProfit Corporation, and PASTOR STEPHEN CASSELL, an individual,
Plaintiffs,
v.
JAY ROBERT PRITZKER, Governor of the State of Illinois, DAVID SNYDERS, Sheriff of Stephenson County, Illinois, STEVE SCHAIBLE, Chief of Police of the Village of Lena, Illinois, and CRAIG BEINTEMA, Administrator of the Department of Public Health of Stephenson County, Illinois, in their official capacities,
Defendants.

) ) No. ) ) ) ) ) ) ) ) JURY TRIAL DEMANDED ) ) ) ) ) ) ) )

VERIFIED COMPLAINT Plaintiffs, The Beloved Church of Lena, Illinois, and Pastor Stephen Cassell, by and through their counsel, the Thomas More Society, complain of Defendants Jay Robert Pritzker, David Snyders, Steve Schaible, and Craig Beintema, as follows: I. Introduction 1. Fear of the coronavirus epidemic has gripped Illinois, the nation, and the world. In response to the initial surge in coronavirus cases, numerous states imposed “stay-at-home” orders, in order to “flatten the curve” of the spread of the virus. Due to the unified efforts of the American people, the curve has flattened nationally, and in Illinois.

1

Case: 3:20-cv-50153 Document #: 1 Filed: 04/30/20 Page 2 of 33 PageID #:2
2. In many states, these stay-at-home orders protected the constitutional rights of churches and religious believers during the coronavirus epidemic, but not so in the Land of Lincoln.
3. Defendant Pritzker in his orders declared churches and church ministries “nonessential” and commanded them to shut down.1 Pritzker has forbidden congregants from leaving their homes to attend church or church ministries. On the eve of Easter, the holiest day on the Christian calendar, Pritzker expressly prohibited even no-contact, drive-in services in Illinois church parking lots. At the same time, he declared a laundry list of businesses to be “essential,” from liquor stores to lawyers to landscapers.
4. Pritzker’s statements and actions during the coronavirus epidemic demonstrate an illegal and discriminatory hostility to religious practice, churches, and people of faith. He has flagrantly violated the fundamental religious liberties of Illinoisans, in violation of the First Amendment’s Free Exercise clause and parallel provisions of the Illinois Constitution and statute.
5. In recent days, a number of law enforcement officials (e.g., Douglas County Sheriff Joshua Blackwell, Energy Police Chief Shawn Ladd, Woodford County State's Attorney Greg Minger, Tazewell County Sheriff Jeff Lower) have publicly announced they will refuse to enforce Pritzker’s orders, some going so far as to state they are unconstitutional, such that enforcement would be a violation of their oath of office.2
1 Defendant Pritzker’s stay-at-home orders divide businesses into “essential” and “nonessential,” with essential businesses allowed to operate with minimal alterations while nonessential businesses are closed to the public. 2 And even Chicago Mayor Lori Lightfoot, a former federal prosecutor, recently stated that her police force would not enforce Pritzker’s impending mask requirement. See, https://www.nbcchicago.com/news/local/what-to-know-about-the-new-mask-requirement-whendo-you-need-one-how-will-it-be-enforced/2261209/ (“Chicago Mayor Lori Lightfoot said she
2

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6. At least one of these law enforcers cited as support a widely circulated and reported memo recently sent by the Chief Deputy Director of the Illinois Appellate Prosecutor’s Office to the Director, for use in that Office’s role as advisor to Illinois State’s Attorneys, casting substantial doubt on the constitutionality of numerous provisions of Pritzker’s executive orders. The Chief Deputy Director’s memo specifically references the restrictions on religious activity therein, noting that “the EO is very broad and does not appear to meet strict scrutiny -- this is not to mention the EO appears to be beyond the framework of the specific Act it cites as support.” See, https://www.policeone.com/coronavirus-covid-19/articles/ill-chief-police-hold-no-interestin-enforcing-stay-at-home-order-DNteArzdzYDmvGh2/ (citing Memo found at https://edgarcountywatchdogs.com/wp-content/uploads/2020/04/COVID-19-Memo-4.21.20003.pdf).
7. On Tuesday, April 27, an Illinois Circuit Court agreed with this assessment and issued a temporary restraining order to a local state legislator against the current executive order. See, Bailey v. Pritzker, Clay Co. No. 20-CH-6. On Wednesday, April 28, another lawsuit was filed by a state legislator in Winnebago County Circuit Court, alleging Pritzker’s orders exceeded his statutory and constitutional power. See, Cabello v. Pritzker, Winnebago Co. No. 2020-CH-210.
8. Despite the deep statewide concerns about the shaky legal foundations of his orders, Pritzker has not yielded to those concerns, but instead doubled down, announcing he will extend his orders to the end of May and beyond. Throughout, the Illinois State Police has threatened criminal enforcement of the orders statewide, even when local law enforcement decides not to do so. See, e.g., https://newschannel20.com/news/local/isp-clarifies-enforcement-
opposed making masks a requirement . . . . she doesn't plan on arresting or citing people who don't wear a mask . . . .”)
3

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of-stay-at-home-order (“‘While the goal is voluntary compliance, citizens should be aware that non-compliance with the Executive Order can result in criminal and civil sanctions,’ said an Illinois State Police spokesperson.”) & https://www.wglt.org/post/pekin-country-club-golfcourse-closes-after-state-police-intervene#stream/0 (“Illinois State Police delivered a cease-anddesist letter to the private venue to force compliance with Gov. J.B. Pritzker's stay-at-home executive order. . . . Tazewell County Sheriff's Office had expressed ‘no issue’ with continued golfing at the Pekin Country Club”).
9. It has also been publicly reported that prominent government officials have violated Pritzker’s orders, without consequence. Mayor Lightfoot famously violated the orders and got a haircut, despite the hair stylists and barbers of the state being shut down, with no income and still being unable to access unemployment benefits nearly 6 weeks into the mandatory shutdown.3
10. Plaintiffs believe that, in these dark times, Illinoisans need the Spirit of Almighty God, but Pritzker’s orders have left them to settle for the lesser spirits dispensed out of the state’s liquor stores. The churches and pastors of Illinois are no less “essential” than its liquor stores to the health and well-being of its residents. Defendants have thus intentionally denigrated Illinois churches and pastors and people of faith by relegating them to second-class citizenship. Defendants have no compelling justification for their discriminatory treatment of churches and
3 The First Lady of Illinois has also been reported to be in residence at Pritzker’s vacation home in Florida, which would be a violation of Pritzker’s travel orders, if she did not leave before their effective date almost a month and a half ago. See, https://ilrisingaction.org/first-lady-mkpritzker-violates-stay-at-home-order-by-traveling-to-familys-florida-compound/ (citing https://patch.com/illinois/chicago/does-all-illinois-slogan-apply-billionaire-govs-family). Pritzker refused to answer questions related to the issue at his April 29 press conference. See, https://twitter.com/MarkMaxwellTV/status/1255590975826808833.
4

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pastors and people of faith, nor have they attempted in any way to tailor their regulations to the least restrictive means necessary to meet any arguable compelling interest.
11. Plaintiffs intend to reopen and hold public worship services this Sunday, May 3. They justifiably fear arrest and prosecution if they do so, without immediate relief from this Court.
12. Plaintiffs seek temporary and permanent injunctive relief against Pritzker’s orders shuttering their church, church ministries, and pastoral activities, as illegal and unconstitutional on their face and as applied to Plaintiffs. II. Parties
13. The Beloved Church (“the Church”) is an evangelical Christian church, organized as an Illinois not-for-profit corporation, located in the Village of Lena, Stephenson County, Illinois. Its principal asset is a church building located in the Village of Lena. The Church sues in its own capacity and on behalf of its congregants.
14. Plaintiff, Stephen Cassell, is pastor of the Church and a resident of Pearl City, Stephenson County, Illinois.
15. Defendant, Jay Robert Pritzker, is the governor of the state of Illinois. 16. Defendant, David Snyders, is the Sheriff of Stephenson County, Illinois, and has been serving in that office at all times relevant to this Complaint. 17. Defendant, Steve Schaible, is the Police Chief of the Village of Lena, in Stephenson County, Illinois, and has been serving in that office at all times relevant to this Complaint. 18. Defendant, Craig Beintema, is the Public Health Administrator of Stephenson County, Illinois, and has been serving in that office at all times relevant to this Complaint. III. Venue
5

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19. Plaintiffs and the local Defendants (Snyders, Schaible, and Beintema) are resident in the Northern District, Western Division. Many of the acts and omissions, and the effects of the acts and omissions, giving rise to this case occurred in Stephenson County, which is in the Northern District, Western Division. Venue is thus proper in this District under 28 U.S.C. § 1391. IV. Jurisdiction
20. This court has jurisdiction over the federal claims asserted here under the federal question provision of the Judicial Code, 28 U.S.C. § 1331.
21. This court has jurisdiction over the claims asserting violations of the Illinois Constitution and Religious Freedom Restoration Act, 775 ILCS 35/1, et seq., under the supplemental jurisdiction provision of the Judicial Code, 28 U.S.C. § 1367(a).
22. As alleged more fully below, all of Defendants’ actions that have deprived Plaintiffs of rights under the U.S. Constitution have been taken under color of law.
23. This Court has the authority to grant the requested injunctive relief under 28 U.S.C. § 1343(3), declaratory relief under 28 U.S.C. §§ 2201 and 2202, the claim for damages under 42 U.S.C. § 1983, and to grant costs, including reasonable attorney’s fees, under 42 U.S.C. § 1988 and 28 U.S.C. § 1920. V. Facts
A. Plaintiffs Sincerely Believe, Teach, and Preach the Gospel of Jesus Christ 24. Pastor Cassell founded the Church on the truths of God's unconditional Love, amazing Grace and majestic Restoration available through the completed work of Jesus Christ. Plaintiffs hold firm to these life-changing foundations as they joyfully undertake their mission to the community.
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25. Among other beliefs, Plaintiffs believe that the entire bible, Old and New Testaments, are a completed and infallible work called the Word of God. This work contains a completed revelation of God for mankind and the final authority for all Christian faith and practice. See, 2 Timothy 3:15-17, Psalms 19:7-11.
26. Plaintiffs are passionate to share the love of God with their congregants, who form what they believe is their Church family. Plaintiffs believe that through connecting with those in need, they can assist them in building a Godly and rock-solid foundation that cannot be shaken under any circumstance. To that end, Plaintiffs bring their understanding and personal experience with the issues and problems facing us all in today's world, including the coronavirus epidemic. Pastor Cassell lives, works, and ministers among and alongside his Church family. Plaintiffs are dedicated to being available to congregants and community members for counsel and assistance in any area of their lives. Plaintiffs believe there is no problem or situation too big or small for their gracious Savior to overcome.
27. From the time that he first founded the Church, Pastor Cassell has presided over Sunday religious services at the Church, as well as other religious services, to which all members of the Church are invited and strongly encouraged to attend. Those services have been held for the last five years in the Church’s building in Lena, Illinois. Approximately 80 people attend Sunday services at the Church.
28. These weekly Sunday services include the proclamation of portions of scripture by Pastor Cassell to the assembled congregation; a message preached on the chosen scriptural passage by Pastor Cassell to the assembled congregation; oral, communal proclamation of prayers by both Pastor Cassell and the assembled congregation; and communal singing of praise and worship by Pastor Cassell and the assembled congregation.
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29. During and after each Sunday service, the assembled members of the congregation are encouraged by Pastor Cassell to converse in, and on the grounds adjacent to, the church building to build fellowship and morale, individually and collectively, among congregation members so they may better perform the congregation’s scripturally mandated evangelical function.
30. The assembly of members of the congregation at these Sunday services, the communal prayer and singing, the communal preaching and fellowship, and the informal conversation and fellowship among congregation members after the services are all essential parts of a functioning Christian congregation.
31. The weekly Sunday worship and prayer services are the central religious rites of the Church congregation. See, e.g., James 5:14 (“Is any sick among you? Let him call for the elders of the church; and let them pray over him, anointing him with oil in the name of the Lord . . . .”) & Hebrews 10:24-25 (“And let us consider how we may spur one another on toward love and good deeds, not giving up meeting together, as some are in the habit of doing, but encouraging one another—and all the more as you see the Day approaching.”). The congregation cannot truly “work from home,” without forfeiting many of the great spiritual and religious benefits and comforts they receive from Plaintiffs.
32. From the time that he founded the Church, Pastor Cassell has also engaged in visits to and meetings with his congregants and community members for the purpose of prayer and spiritual counseling and support. See, e.g., Matthew 18:20 (“For where two or three are gathered in my name, there am I in the midst of them.”). In today’s crisis, with many in Stephenson County and surrounding areas out of work or suffering other economic, psychological, or emotional distress, Pastor Cassell’s spiritual visits and counseling are vitally necessary to the health and well-being of the community. For a father out of work, a young
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person at risk for suicide, or a mom dealing with substance abuse, a “Zoom meeting” just doesn’t cut it.
33. Pastor Cassell’s organization of Sunday services, his role as senior pastor and preacher, and his prayer and spiritual counseling visits and meetings are central functions of his leadership of the Church. Pastor Cassell believes and teaches these functions are scripturally mandated for anyone claiming to hold the office of pastor of a Christian congregation. They are, therefore, religiously required for Pastor Cassell to perform.
B. Defendants Have Illegally Shuttered Illinois’ Churches By Declaring Them “Non-Essential” And Forbidden Residents From Leaving Their Homes For Church Or Religious Purposes.
34. On March 9, 2020, Defendant Pritzker declared the entire State of Illinois a “disaster area” due to the coronavirus epidemic and invoked his powers under the Illinois Emergency Management Agency Act (“IEMA Act”). (linked at https://coronavirus.illinois.gov/ s/resources-for-executive-orders).
35. The IEMA Act, at 20 ILCS 3305/7, provides that, “In the event of a disaster, as defined in Section 4, the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers.” The Act defines “disaster” to mean “an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to . . . epidemic . . . .”
36. On April 2, 2020, Defendant Pritzker issued another proclamation in relation to the coronavirus epidemic purporting to extend his powers another 30 days under IEMA Act, and stating that, “I find that a continuing disaster exists . . . . This proclamation continues the Governor’s authority to exercise all of the emergency powers provided in” the Act. (linked at https://coronavirus.illinois.gov/s/resources-for-executive-orders).
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37. On or about April 23, 2020, Defendant Pritzker stated his intent to issue another disaster proclamation in relation to the coronavirus epidemic purporting to extend his powers an additional 30 days.
38. Defendant Pritzker has issued a number of executive orders in relation to the coronavirus epidemic and purporting to exercise his authority under the IEMA Act, including his first “stay-at-home order” in Executive Order (“EO”) 2020-10, issued March 20, 2020, which is attached hereto as Exhibit A. He purported to extend that stay-at-home order, in relevant part, in EO 2020-18. On or about April 23, 2020, he stated his intent to extend that purported stay-athome order until May 30, 2020. The intended new stay-at-home order released to the media by the Pritzker Administration, which is attached hereto as Exhibit B, adds dog grooming, golfing, and fishing to the list of “essentials.” (Found at https://chicago.suntimes.com/2020/4/24/ 21235051/extended-say-at-home-order-illinois-full-text-pritzker-read-masks). Under the new order, while congregants will be able to travel to take their pets for grooming, they will still be forbidden to travel for religious purposes and their churches will continue to be shut down as “non-essential,” until at least May 30.
39. EO 2020-104 commands that, “With exceptions as outlined below, all individuals currently living within the State of Illinois are ordered to stay at home or at their place of residence except as allowed in this Executive Order….All persons may leave their homes or place of residence only for Essential Activities, Essential Governmental Functions, or to operate Essential Businesses and Operations, all as defined below.” Sec. 1, par. 1.
4 All citations are to EO 2020-10 as the model for the relevant executive orders. EO 2020-18 purported to extend 2020-10 until the end of April without changes. See, https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-18.aspx (“Executive Order 2020-10 is continued and extended in its entirety for the duration of the Gubernatorial Disaster Proclamations, which currently extends through April 30, 2020.”) The upcoming announced EO inserts a new section 1 and moves the current section 1 into new EO section 2.
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40. EO 2020-10 further prohibits “all public and private gatherings of any number of people outside a single household.” Sec. 1, par. 3.
41. EO 2020-10 sweeps within its ambit any “non-profit … entities,” including the Church (and all Illinois churches), in its definition section, as follows: “Businesses covered by this Executive Order. For the purposes of this Executive Order, covered businesses include any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function it performs, or its corporate or entity structure.” Sec. 1, par. 11.
42. EO 2020-10 separates all businesses into one of two categories, “essential” and “non-essential,” commanding that, “Non-essential business and operations must cease. All businesses and operations in the State, except Essential Businesses and Operations as defined below, are required to cease all activities within the State except Minimum Basic Operations, as defined below.” Sec. 1, par. 2.
43. EO 2020-10 expressly recognizes religious nonprofits and allows for them to operate as “essential businesses,” but only “when providing food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.” Sec. 1 par. 12(c).
44. Under a plain reading of EO 2020-10, the Church is subject to its regulations as a “business.” But Plaintiffs’ prayer and worship services, ministries, and pastoral and spiritual visits are entirely prohibited, insofar as they do not involve the provision of “food, shelter, and social services,” etc.5 Further, while the Church’s congregants may leave their homes for alleged
5 EO 2020-10 allows an exception for “non-essential businesses” to continue “Minimum Basic Operations,” which it defines as including in relevant part, “The minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related
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“essential” purposes, they and Pastor Cassell are barred from leaving their homes to attend the Church’s services and ministries.
45. Defendant Pritzker has further expressed official hostility to religious exercise, going so far as to reaffirm his ban on even drive-in parking lot church services. See, https://www.news-gazette.com/coronavirus/saturdays-coronavirus-updates-pritzker-cautionsagainst-easter-drive-in-services-3-new-cases-in-champaign/article_b02a195c-7c10-11ea-abff0b35a3b4cc97.html (“On Easter eve, Gov. J.B. Pritzker cautioned against churches holding drive-in services in their parking lots.”). Local officials in Illinois have enforced Pritzker’s ban on drive-in church services. (See, e.g., Peoria County ( https://www.centralillinoisproud.com/ news/local-news/peoria-county-officers-break-up-parking-lot-church-service-remind-people-notto-attend-religious-services-to-prevent-possible-covid-19-spread/) & Sangamon County (https://www.illinoistimes.com/springfield/going-to-church-or-pot/Content?oid=12070231).
46. Defendant Pritzker has repeatedly confirmed that criminal enforcement and penalties attach to violations of his orders. See, e.g., https://newschannel20.com/news/local/ pritzker-police-can-charge-violators-of-stay-at-home-order (“If they refuse and if they repeatedly refuse, there is the ability by the police officers to charge them with reckless conduct and take them into custody.”).
C. Defendants Forcibly Closed The Church And Threatened To Prosecute Pastor Cassell
47. On or about March 31, 2020, Defendant Beintema delivered a “Cease and Desist Notice” to Pastor Cassell, a true and accurate copy of which is attached hereto as Exhibit C.
functions.” Sec. 1, par. 13. Church prayer and worship services, pastoral ministries, and other church ministries do not fall within this exception.
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48. On March 31, 2020, the “Cease and Desist Notice” was personally served on Pastor Cassell by deputies employed by Defendant Snyders’ office.
49. The Notice instructed Pastor Cassell that “your establishment, The Beloved Church, is required to adhere to [EO 2020-10].” And further that “[i]f you do not adhere to this Executive Order, the Illinois Department of Public Health has the authority to order that a place be closed and made off limits to the public.” It also stated, “[i]n addition to such order of closure issued … you may be subject to additional civil and criminal penalties.” And “[f]urthermore, police officers, sheriffs and all other officers in Illinois are authorized to enforce such orders.” The Notice specifically states that “Essential Businesses and Operations have not been defined to include religious gatherings of 10 or more people” (emphasis supplied).
50. In view of this Notice and Pritzker’s orders, Plaintiffs have suspended all communal activities at the Church building, including the Sunday services. Plaintiffs justifiably fear arrest, prosecution, fines, and jail time if they open their church building or hold religious services of any kind.
D. Pritzker’s Orders Allow Gatherings At Liquor Stores And Other Businesses Deemed “Essential,” While Entirely Forbidding Church Worship And Religious Gatherings
51. Pritzker’s Executive Orders allow so-called “Essential” businesses to operate with no limit on the number of individuals gathered therein, while every religious gathering of any number is prohibited. See, EO 2020-10, passim.
52. For instance, based on personal observation, Pastor Cassell has observed that local Menards and Walmart stores in Stephenson County routinely assemble many more than 10 customers in their facilities. He has further observed that neither store requires those customers to observe 6-foot social distancing as required by Pritzker’s Executive Orders. Defendants, however, have not threatened those businesses with forcible closure or criminal prosecution.
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53. Pastor Cassell observes that Snak King, one of the largest snack food manufacturers in the country, operates a plant in Stephenson County that routinely has dozens if not hundreds of persons on site.
54. Pastor Cassell observes that “mental health and substance use providers” remain open for in-person counseling and services, under the “Healthcare and Public Health Operations” section of EO 2020-10. Defendant Pritzker recognizes the benefit of providing mental health and substance abuse support services—as long as they are not provided by pastors and churches.
55. Pastor Cassell is also aware of liquor stores and all manner of other businesses being open to the public in his community. These alleged “Essential Businesses” operate, while his Church, which he had understood before this epidemic stood in high regard and enjoyed special protection under the United States and Illinois Constitutions, remains shuttered. Plaintiffs contend the notion of regulating churches as “businesses” is already insulting—going further and declaring churches to then be “non-essential businesses” reeks of rank bigotry. Without relief from this Court, the churches of this State will remain shuttered for an indefinite future, subject to the unchallenged, unexplained, and unreasonable whim of one man: Defendant Pritzker.
E. Pritzker Lacks Statutory Authority To Extend His Emergency Powers Past 30 Days And Issue EO 2020-18 And His Announced Upcoming Order
56. The express terms of the Emergency Management Agency Act, the authority Pritzker invoked as the basis for his authority to impose EO 2020-10 and to extend it as set forth in EO 2020-18, limit the duration of the Governor’s power to thirty days per disaster. The Act provides:
In the event of a disaster ... the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days [his] … emergency powers. 20 ILCS 3305/7.
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57. On March 9, 2020, Defendant Pritzker first declared all counties in the State of Illinois as a disaster area due to the COVID-19 epidemic. Accordingly, his authority to invoke and exercise his emergency powers terminated on April 8, 2020. There is only one disaster: the current COVID-19 epidemic.
58. Pritzker promulgated EO 2020-10 on March 9, 2020 and its term explicitly extended only to April 7, 2020.
59. Notwithstanding the explicit statutory temporal limitation on his emergency powers imposed by the Emergency Management Agency Act, on April 1, 2020, Defendant Pritzker again declared all counties in the State of Illinois as a disaster area due to COVID-19. Based on the alleged authority deriving from that April 1, 2020 disaster proclamation, Defendant Pritzker, subsequently issued EO 2020-18, by which he purported to “continue” and “extend” EO 2020-10 through April 30, 2020.
60. Defendant Pritzker’s emergency powers, including the power to “extend and continue” EO 2020-10 for thirty (30) days, by issuing EO 2020-18, do not extend beyond the 30 days beginning with his original March 9, 2020 COVID-19 disaster proclamation.
61. Outside of the 30-day period in which the Governor may exercise emergency powers, the Department of Public Health “has general supervision of the interests of the health and lives of the people of the State. It has supreme authority in matters of quarantine and isolation.” 20 ILCS 2305/2(a). When it exercises that isolation authority to order the forcible closure of premises to the public, however, it must give the owners of such premises the right to insist on proof of the necessity for closure in a court of law within 48 hours. 20 ILCS 2305/2(c).
62. Because Defendant Pritzker has arrogated that authority to himself by an unlawful purported enlargement of his emergency powers, Plaintiffs have been deprived of the protection
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of the mandated procedures and protections that must attend closure of private premises— including the right for prompt judicial review.
F. Pritzker Lacks Statutory Authority To Quarantine or Isolate Residents or To Shut Down Churches
63. Defendant Pritzker lacks authority under the IEMA Act to impose a quarantine or isolation on Illinois residents, or to order shutdowns of Illinois churches. The Illinois Department of Public Health Act (“IDPH Act”) provides that IDPH has “supreme authority in matters of quarantine and isolation.” 20 ILCS 2305/2(a).
64. IDPH alone may order quarantines and isolations of individuals or groups or closures of places, “to prevent the probable spread of a dangerously contagious or infectious disease.” 20 ILCS 2305/2(b).
65. The IDPH Act provides the exclusive remedy for quarantine and isolation and closures, along with ensuring the due process rights of those who are subject to such measures. See, 20 ILCS 2305/2(c) (“Except as provided in this Section, no person or a group of persons may be ordered to be quarantined or isolated and no place may be ordered to be closed and made off limits to the public except with the consent of the person or owner of the place or upon the prior order of a court of competent jurisdiction.”) & 77 Ill.Adm.Code 690.1330 (describing process for quarantine, isolation, and closure).
66. In shutting down Plaintiffs, Defendant Pritzker has not followed the strictures of the IDPH Act and the relevant sections of the Administrative Code. He has not provided Plaintiffs notice and a meaningful opportunity to be heard, nor any due process at all.
G. Pritzker’s Executive Orders Are Facially Unconstitutional In Violation Of The Constitutional Rights to Free Exercise of Religion, Free Speech, and Freedom of Assembly
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67. EO 2020-10 and EO 2020-18, and the announced upcoming executive order, are facially unconstitutional because they discriminate against religious practice, speech and assembly, while giving favored status to numerous private businesses, including liquor stores, by designating them “Essential Businesses and Operations,” even though those favored businesses are certainly no more “essential” as evidenced by the protections afforded religious practice, speech and assembly by the First Amendment of the U.S. Constitution and sections 3, 4, and 5 of Article 1 of the Illinois Constitution, and pose an equivalent or even greater threat of the spread of COVID-19.
68. At least one other district court has protected religious exercise against another governor’s executive orders, recognizing that, “While these executive orders begin with a broad prohibition against mass gatherings, they proceed to carve out broad exemptions for a host of secular activities, many of which bear similarities to the sort of personal contact that will occur during in-person religious services. Lukumi [Babalu Aye v. Hialeah, 508 U.S. 520 (1993)] indicates that a court should evaluate these exemptions in assessing a law’s neutrality.” First Baptist Church v. Laura Kelly, Gov’r of Kansas, No. 10-1102 (D. Kan., April 18, 2020) (A copy of the opinion is attached as Exhibit D.).
69. Moreover, the epidemic is in a much different place today than it was on March 9, 2020. At this point, it is widely reported that the coronavirus epidemic “curve” has been substantially “flattened” statewide. See, e.g., https://wgntv.com/news/coronavirus/over-2000new-cases-of-covid-19-in-illinois-59-additional-deaths/ (“As infection rates seem to suggest a “flattening” of the coronavirus curve in Illinois, officials are scaling back the number of beds available at McCormick Place. Only 1,000 of the original 3,000 hospital beds at the alternate care facility will remain operational.”). With the temporary hospital at McCormick Place now being significantly scaled back, hospital and ICU capacity have clearly proven sufficient to meet
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the coronavirus challenge. See, e.g., http://www.dph.illinois.gov/covid19/hospitalizationutilization. “Flattening the curve” to preserve hospital capacity was the principal reason for Pritzker’s orders: that aim has now been achieved. See, e.g., https://www.nbcchicago.com/news/ local/pritzker-says-illinois-needs-38000-more-beds-for-covid-19/2243800/?_osource= SocialFlowTwt_CHBrand. Yet Pritzker’s orders as to churches and religious activities have not changed one iota from the early days of the coronavirus epidemic—when COVID-19 cases were growing exponentially, and policymakers feared millions would die—to today—when the level of coronavirus infections is stable. See, e.g., rt.live (Illinois Rate of transmission, “Rt,” at .88, where “Values over 1.0 mean we should expect more cases in that area, values under 1.0 mean we should expect fewer.”).
70. There is no attempt at tailoring in the executive orders, much less narrow tailoring. Every church in the state has been shuttered, and every pastor and congregant placed under house arrest, save for “essential” non-religious activities. This has now gone on for almost a month and a half, with another month to come, and with no end in sight. No thought has been given to regional differences in these orders. No consideration has been made for church size. No allowance has been made in relation to particular individuals’ risk factors for coronavirus. No explanation has been offered to tie any spread of the coronavirus to a particular community. These orders cannot meet strict scrutiny.
H. Pritzker’s Executive Orders Are Unconstitutional As Applied to Plaintiffs 71. The executive orders are not narrowly tailored to the coronavirus situation in Stephenson County, Illinois. Numerous elected officials in Stephenson County, including the Mayor of Lena, Illinois, have begged Defendant Pritzker for localized relief from his orders, and they have expressed their readiness to address the issues presented by the coronavirus at the local level. See, e.g., https://cityoffreeport.org/press-release-city-and-stephenson-county-villages-
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letter-to-gov-pritzker/ (“we strongly request that you allow each community or region, that knows their businesses, their people, and the COVID impact on their community to make the proper decisions on reopening businesses. . . . we feel that a one-size-fits-all set of restrictions isn’t feasible for the entire state of Illinois. Stephenson County is not Cook County, and quite frankly, counties like ours have a different culture that, by nature, normally utilizes social distancing.”) & https://wrex.com/2020/04/28/stephenson-co-board-members-send-letter-topritzker-urging-different-approach-to-covid-19/ (“. . . the current one-size-fits all top down authoritarian approach to combating this health crisis is unrealistic. We believe the protection of public health can occur simultaneously with the preservation of freedom and liberty by focusing on personal responsibility, and by also allowing local officials to address the problem at the local level.”). The people of Stephenson County deserve relief, and an executive order that responds to their particular spiritual needs.
72. Nor are Pritzker’s orders narrowly tailored to Plaintiffs, their 80-person Sunday services, or their pastoral activities, nor has any tailoring been attempted. Plaintiffs are fully willing to comply with proper constitutional guidelines, provided by government officials with authority to issue those guidelines. But they cannot abide an indefinite shut down of their church.
COUNT I VIOLATIONS OF THE FIRST AND FOURTEENTH AMENDMENTS OF
THE U.S. CONSTITUTION – FREE EXERCISE (42 U.S.C. § 1983)
73. Plaintiffs incorporate paragraphs 1 through 72. 74. Plaintiffs’ religious activities are protected by the Free Exercise Clause of the First Amendment of the Constitution of the United States. Those protections constrain Defendants through the Due Process Clause of the Fourteenth Amendment.
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75. The actions of Defendants in threatening forcible closure, prosecution, and fine under the “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, interfere with Plaintiffs’ free exercise by prohibiting any religious activity in the church building and otherwise prohibiting and interfering with the Church’s religious practices.
76. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, interfere with Plaintiffs’ ability to carry out their religious doctrine, faith, and mission.
77. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, do not serve any compelling government interest, and are not narrowly tailored to accomplish any government interest, compelling or otherwise, in the least restrictive manner.
78. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, violate the Free Exercise Clause of the First Amendment on their face and as applied to Plaintiffs.
79. Plaintiffs are entitled to at least nominal damages for this infringement of their rights.
80. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing the notice and orders.
81. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to declaratory relief and temporary, preliminary, and permanent injunctive relief invalidating and restraining enforcement of the notice and orders.
82. Plaintiffs found it necessary to engage the services of private counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an award of attorneys’ fees pursuant to 42 U.S.C. § 1988.
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COUNT II VIOLATIONS OF ARTICLE 1, SECTION 3 OF THE ILLINOIS CONSTITUTION – FREE EXERCISE 83. Plaintiffs incorporate paragraphs 1 through 82. 84. Plaintiffs’ religious activities are protected by the Free Exercise Clause of Article 1 of the Illinois Constitution. 85. The actions of Defendants in threatening forcible closure, prosecution, and fine under the “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, interfere with Plaintiffs’ free exercise by prohibiting any religious activity in the church building and otherwise prohibiting and interfering with the Church’s religious practices. 86. The “Cease and Desist Notice” and EO 2020-10 and EO 2020-18, and the upcoming announced EO, interfere with Plaintiffs’ ability to carry out their religious doctrine, faith, and mission. 87. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO do not serve any compelling government interest and are not narrowly tailored to accomplish any government interest, compelling or otherwise, in the least restrictive manner. 88. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, violate the Free Exercise Clause of the Illinois Constitution, on their face and as applied to Plaintiffs. 89. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing the notice and orders.
COUNT III VIOLATIONS OF THE FIRST AND FOURTEENTH AMENDMENTS OF
THE U.S. CONSTITUTION – FREE SPEECH (42 U.S.C. § 1983)
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90. Plaintiffs incorporate paragraphs 1 through 89. 91. Plaintiffs’ rights to speak freely and peaceably assemble are protected by the Free Speech Clause of the First Amendment of the Constitution of the United States. Those protections constrain Defendants through the Due Process Clause of the Fourteenth Amendment. 92. The actions of Defendants in threatening forcible closure, prosecution, and fine under the “Cease and Desist Notice”, EO 2020-10 and 2020-18 interfere with Plaintiffs’ free speech by targeting and burdening their religious expression, including prohibiting any communal prayer and singing. 93. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, do not serve any compelling government interest, and are not narrowly tailored to accomplish any government interest, compelling or otherwise, in the least restrictive manner. They are not reasonable time, place, or manner restrictions because they burden substantially more speech than necessary to achieve the government’s interests and do not leave open ample alternative channels of communication. 94. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, violate the Free Speech Clause of the First Amendment on their face and as applied to Plaintiffs. 95. Plaintiffs are entitled to at least nominal damages for this infringement of their rights. 96. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing the notice and orders.
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97. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to declaratory relief and temporary, preliminary, and permanent injunctive relief invalidating and restraining enforcement of the notice and orders.
98. Plaintiffs found it necessary to engage the services of private counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an award of attorneys’ fees pursuant to 42 U.S.C. § 1988.
COUNT IV VIOLATIONS OF ARTICLE 1, SECTION 4 OF THE ILLINOIS CONSTITUTION – FREE SPEECH 99. Plaintiffs incorporate paragraphs 1 through 98. 100. Plaintiffs’ rights to speak freely are protected by the Free Speech clause of Article 1 of the Illinois Constitution. 101. The actions of Defendants in threatening forcible closure, prosecution, and fine under the “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, interfere with Plaintiffs’ free speech by targeting and burdening their religious expression, including prohibiting any communal prayer and singing. 102. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, do not serve any compelling government interest, and are not narrowly tailored to accomplish any government interest, compelling or otherwise, in the least restrictive manner. They are not valid time, place, or manner restrictions on Plaintiffs’ speech because they burden substantially more speech than necessary to achieve the government’s interests and do not leave open ample alternative channels of communication. 103. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, violate the Free Speech Clause of the Illinois Constitution both on their face and as applied to Plaintiffs.
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104. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing the notice and orders.
COUNT V VIOLATIONS OF THE FIRST AND FOURTEENTH AMENDMENTS OF
THE U.S. CONSTITUTION – FREEDOM TO ASSEMBLE (42 U.S.C. § 1983)
105. Plaintiffs incorporate paragraphs 1 through 104. 106. Plaintiffs’ rights to peaceably assemble are protected by the First Amendment of the Constitution of the United States. Those protections constrain Defendants through the Due Process Clause of the Fourteenth Amendment. 107. The actions of Defendants in threatening forcible closure, prosecution, and fine under the “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, interfere with Plaintiffs’ freedom to assemble by prohibiting any communal activity in the church building. 108. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, do not serve any compelling government interest, and are not narrowly tailored to accomplish any government interest, compelling or otherwise, in the least restrictive manner. They also are not reasonable time, place, and manner restrictions because they burden substantially more speech than necessary to achieve the government’s interests and do not leave open ample alternative channels of communication. 109. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, violate the freedom to peaceably assemble protected by the First Amendment both on their face and as applied to Plaintiffs.
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110. Plaintiffs are entitled to at least nominal damages for this infringement of their rights.
111. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing the notice and orders.
112. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to declaratory relief and temporary, preliminary, and permanent injunctive relief invalidating and restraining enforcement of the notice and orders.
113. Plaintiffs found it necessary to engage the services of private counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an award of attorneys’ fees pursuant to 42 U.S.C. § 1988.
COUNT VI VIOLATIONS OF ARTICLE 1., SECTION 5 OF THE ILLINOIS CONSTITUTION – FREEDOM TO ASSEMBLE 114. Plaintiffs incorporate paragraphs 1 through 113. 115. Plaintiffs’ rights to peaceably assemble are protected by the Freedom to Assemble clause of Article 1. of the Illinois Constitution. 116. The actions of Defendants in threatening forcible closure, prosecution, and fine under the “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, interfere with Plaintiffs’ freedom to peaceably assemble by prohibiting any communal activity in the church building. 117. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, do not serve any compelling government interest, and are not narrowly tailored to accomplish any government interest, compelling or otherwise, in the least restrictive manner. They also are not reasonable time, place, and manner restrictions because they burden
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substantially more speech than necessary to achieve the government’s interests and do not leave open ample alternative channels of communication.
118. The “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, violate the Freedom to Assemble Clause of the Illinois Constitution both on their face and as applied to the Plaintiffs.
119. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing the notice and orders.
COUNT VII VIOLATIONS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
(42 U.S.C. § 1983) 120. Plaintiffs incorporate paragraphs 1 through 119. 121. EO 2020-10 and EO 2020-18, and the upcoming announced EO, and Defendants’ enforcement thereof violate Plaintiffs’ substantive due process rights secured by the Fourteenth Amendment to the U.S. Constitution. Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See, Duncan v. Louisiana, 391 U.S. 145, 147–149 (1968). In addition, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v. Connecticut, 381 U.S. 479, 484–486 (1965).
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122. Plaintiffs’ rights to freedom of religion, assembly, speech, and travel are fundamental rights protected by the U.S. Constitution. See, e.g., Aptheker v. Secretary of State, 378 U.S. 500, 520 (1964); Kent v. Dulles, 357 U.S. 116, 127 (1958).
123. When a government practice restricts fundamental rights such as the right to practice religion freely, assemble peacefully, speak, and travel, it is subject to “strict scrutiny” and can be justified only if it furthers a compelling government purpose, and, even then, only if no less restrictive alternative is available. See, e.g. Memorial Hospital v. Maricopa County, 415 U.S. 250, 257-258 (1974); Dunn v. Blumstein, 405 U.S. 330, 339-341 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 (1969), Maher v. Roe, 432 U.S. 464, 488 (1977). The Due Process Clause of the Fourteenth Amendment includes the right to be free from any purported normative, legal guidelines bestowing unfettered discretion on government officials about interpretation or enforcement.
124. Strict scrutiny applies to Plaintiffs’ claims because the EO 2020-10 and EO 202018, and the upcoming announced EO, mandate that Plaintiffs stay at home, impinging on their fundamental rights to freedom of religion, assembly, speech, and travel. These orders do not permit Plaintiffs to exercise these rights, unless Defendants deem them “essential” or as participating in “essential” activities.
125. Defendants’ mandates are not “narrowly tailored” to further any compelling governmental interest. Defendants’ have granted numerous exemptions for purportedly “essential” businesses and activities. Since these gatherings can be permitted, there can be no doubt that Defendants may, and therefore must, permit Plaintiffs to engage in equivalent constitutionally protected activities on the same or similar terms.
126. Plaintiffs are entitled to at least nominal damages for this infringement of their rights.
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127. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing the notice and orders.
128. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to declaratory relief and temporary, preliminary, and permanent injunctive relief invalidating and restraining enforcement of the notice and orders.
129. Plaintiffs found it necessary to engage the services of private counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an award of attorneys’ fees pursuant to 42 U.S.C. § 1988.
COUNT VIII ILLINOIS RELIGIOUS FREEDOM RESTORATION ACT (775 ILCS 35) 130. Plaintiffs incorporate paragraphs 1 through 129. 131. Illinois’ Religious Freedom Restoration Act (“RFRA”) commands that Illinois government “may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest.” 775 ILCS 35/15. 132. Defendants, who are agents of Illinois government and therefore subject to the RFRA, have violated RFRA by substantially burdening Plaintiffs’ exercise of their religion without any valid justification. 133. Defendants’ “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, do not further a compelling governmental interest, and are not the least restrictive means of furthering any governmental interest, compelling or otherwise.
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134. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing the orders.
135. Pursuant to 775 ILCS 35/20, Plaintiffs are entitled to declaratory relief and temporary, preliminary, and permanent injunctive relief invalidating and restraining enforcement of the notice and orders.
136. Plaintiffs found it necessary to engage the services of private counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an award of attorneys’ fees pursuant to 775 ILCS 35/20.
COUNT IX DECLARATORY JUDGMENT (28 USC § 2201) 137. Plaintiffs incorporate paragraphs 1 through 136. 138. As set forth herein, Defendants have and continue to and will enforce against Plaintiffs the provisions of EO 2020-10 and EO 2020-18, and the upcoming announced EO; 139. An actual controversy exists between Plaintiffs and Defendants as to whether Defendant Pritzker possesses the power and authority to issue EO 2020-18, by which he purported to extend the prohibitions set forth in EO 2020-10 through April 30, 2020. 140. An actual controversy exists between Plaintiffs and Defendants as to whether Defendant Pritzker possesses the power and authority to issue an executive order providing for any additional extension of the prohibitions set forth in EO 2020-10 and EO 2020-18 as he has publicly announced he intends to do. 141. An actual controversy exists between Plaintiffs and Defendants whether Defendant Pritzker possesses the power and authority to impose under the IEMA Act to impose a quarantine or isolation on Illinois residents, or to order shutdowns of Illinois churches, without
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following the strictures of the IDPH Act and allowing residents and churches the due process provided them under the IDPH Act and related administrative rules.
142. Plaintiffs seek a declaration that Pritzker was without the power or authority to issue EO 2020-18, by which Defendant Pritzker purported to extend the prohibitions set forth in EO 2020-10 through April 30, 2020; that he is without the power or authority to issue any additional extension of the prohibitions set forth in EO 2020-18 and EO 2020-18 as he has publicly announced he intends to do; and that he is without the power or authority to quarantine or isolate Illinois residents or order shutdowns of Illinois churches, without following the strictures of the IDPH Act and allowing residents and churches the due process provided them under the IDPH Act and related administrative rules.
WHEREFORE, under Counts I through VIII, Plaintiffs, Stephen Cassell and The Beloved Church, pray for judgment in their favor against Defendants and ask that the Court grant:
A. A temporary restraining order restraining Defendants from preventing or interfering with communal religious activities at the Lena church building and the pastoral activities of Plaintiffs wherever they occur;
B. A preliminary injunction restraining Defendants from preventing or interfering with communal religious activities at the Lena church building and the pastoral activities of Plaintiffs wherever they occur;
C. A permanent injunction restraining Defendants from preventing or interfering with communal religious activities at the Lena church building and the pastoral activities of Plaintiffs wherever they occur;
D. A declaration that the “Cease and Desist Notice”, EO 2020-10 and EO 2020-18, and the upcoming announced EO, are illegal and unconstitutional facially and as applied to Plaintiffs; 30

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E. An award of nominal and actual damages against each of the Defendants; F. An award of costs and reasonable attorneys’ fees incurred in the prosecution of
this action; and, G. Any other relief the Court deems just and proper. Under Count IX, Plaintiffs, Stephen Cassell and The Beloved Church pray for judgment in their favor against all Defendants and ask that the Court grant: A. A declaration that Defendant Pritzker was without the power or authority to issue
EO 2020-18, by which Defendant Pritzker purported to extend the prohibitions set forth in EO 2020-10 through April 30, 2020; B. A declaration that Defendant Pritzker is without the power or authority to exercise his emergency powers beyond the 30 days permitted by the express terms of the Illinois Emergency Management Agency Act, including his announced but as yet unissued new COVID-19 executive order; C. A declaration that Defendant Pritzker is without the power or authority to quarantine or isolate Illinois residents or order shutdowns of Illinois churches, without following the strictures of the IDPH Act and allowing residents and churches the due process provided them under the IDPH Act and related administrative rules; D. A temporary restraining order restraining Defendants from seeking to enforce EO 2020-18 or any executive order or action undertaken by Defendant Pritzker by which he purports to further extend the prohibitions set forth in EO 2020-10 and EO 2020-18; E. A preliminary injunction further restraining Defendants from seeking to enforce EO 2020-18 or any executive order or action undertaken by Defendant Pritzker by
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which he purports to further extend the prohibitions set forth in EO 2020-10 and EO 2020-18; F. A permanent injunction restraining Defendants from seeking to enforce EO 202018 or any executive order or action undertaken by Defendant Pritzker by which he purports to further extend the prohibitions set forth in EO 2020-10 and EO 202018; and, G. For such further relief as the Court may deem just and proper.
/s/ Martin Whittaker /s/Peter Breen Peter Breen Thomas Brejcha Martin Whittaker THE THOMAS MORE SOCIETY 309 West Washington, Suite 1250 Chicago IL 60606 312 782 1680 pbreen@thomasmoresociety.org tbrejcha@thomasmoresociety.org mwhittaker@thomasmoresociety.org Attorneys for Plaintiffs
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I, Stephen Cassell, declare that I have personal knowledge of the factual matters set out in this Complaint and declare under penalty of perjury that the foregoing is true and correct. Executed on April 30, 2020.
______________________ Stephen Cassell
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Exhibit B – Announced Upcoming Executive Order

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April 30, 2020

Executive Order 2020-XX

EXECUTIVE ORDER IN RESPONSE TO COVID-19 (COVID-19 EXECUTIVE ORDER NO. XX)1
WHEREAS, Coronavirus 2019 (COVID-19) is a novel severe acute respiratory illness that can spread among people through respiratory transmissions and present with symptoms similar to those of influenza; and,
WHEREAS, on March 11, 2020, the World Health Organization characterized the COVID-19 outbreak as a pandemic; and,
WHEREAS, despite efforts to contain COVID-19, the World Health Organization (WHO) and the federal Centers for Disease Control and Prevention (CDC) have declared that it is expected to continue spreading; and,
WHEREAS, certain populations are at higher risk of experiencing more severe illness as a result of COVID-19, including older adults and people who have serious chronic medical conditions such as heart disease, diabetes, or lung disease; and,
WHEREAS, in a short period of time, COVID-19 has rapidly spread throughout Illinois, necessitating updated and more stringent guidance from federal, state, and local public health officials; and,
WHEREAS, social distancing, which requires maintaining at least a six-foot distance between people, continues to be a paramount strategy for minimizing the spread of COVID-19 in our communities; and,
WHEREAS, current testing availability has identified further spread of confirmed cases throughout the State of Illinois, and it is expected that increased testing capacity would demonstrate that COVID-19 is circulating in communities across Illinois that currently have not identified a confirmed case; and,
WHEREAS, until testing and contact tracing become more widespread, it is critical to minimize the potential exposure of Illinoisans to COVID-19; and,
WHEREAS, the number of suspected COVID-19 cases in Illinois is increasing exponentially and across more locations in Illinois, indicating that drastic social distancing measures are needed, even in communities where confirmed cases have not yet been identified, to reduce the number of people who become sick at any given time and the possibility of exhausting our health care resources; and,

1

This Executive Order will be filed on April 30, 2020. This pre-filing copy is being provided to media and

the public in order to inform the public about the changes to expect as of May 1, 2020. The underlining and strike

outs identify the changes to the current Executive Order.

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WHEREAS, the CDC now recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain in order to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others; and,
WHEREAS, I, JB Pritzker, Governor of Illinois, declared all counties in the State of Illinois as a disaster area on March 9, 2020 (the First Gubernatorial Disaster Proclamation) in response to the outbreak of COVID-19; and,
WHEREAS, I again declared all counties in the State of Illinois as a disaster area on April 1, 2020 (the Second Gubernatorial Disaster Proclamation) in response to the exponential spread of COVID-19; and,
WHEREAS, I again declared all counties in the State of Illinois as a disaster area on April XX, 2020 (the Third Gubernatorial Disaster Proclamation, and, together with the First Gubernatorial Disaster Proclamation and the Second Gubernatorial Disaster Proclamation, the Gubernatorial Disaster Proclamations) in response to the exponential spread of COVID-19; and,
WHEREAS, for the preservation of public health and safety throughout the entire State of Illinois, and to ensure that our healthcare delivery system is capable of serving those who are sick, I find it necessary to take additional measures consistent with public health guidance to slow and stop the spread of COVID-19;
THEREFORE, by the powers vested in me as the Governor of the State of Illinois, pursuant to Sections 7(1), 7(2), 7(3), 7(8), 7(9), and 7(12) of the Illinois Emergency Management Agency Act, 20 ILCS 3305, and consistent with the powers in public health laws, I hereby order the following:
The Stay at Home Order (Executive Order 2020-10; COVID-19 Executive Order No. 8), hereby is extended through the duration of the Gubernatorial Disaster Proclamations, with modifications to the original Stay at Home Order reflected below. This Executive Order is effective as of May 1, 2020:
Section 1. Public Health Requirements for Individuals Leaving Home and for Businesses
1. Wearing a face covering in public places or when working. Any individual who is over age two and able to medically tolerate a face-covering (a mask or cloth facecovering) shall be required to cover their nose and mouth with a face-covering when in a public place and unable to maintain a six-foot social distance. Face-coverings are required in public indoor spaces such as stores.
2. Requirements for essential stores. Retail stores (including, but not limited to, stores that sell groceries and medicine, hardware stores, and greenhouses, garden centers, and nurseries) designated as Essential Businesses and Operations under this Order shall to the greatest extent possible:
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• provide face coverings to all employees who are not able to maintain a minimum six-foot social distance at all times;
• cap occupancy at 50 percent of store capacity, or, alternatively, at the occupancy limits based on store square footage set by the Department of Commerce and Economic Opportunity;
• set up store aisles to be one-way where practicable to maximize spacing between customers and identify the one-way aisles with conspicuous signage and/or floor markings;
• communicate with customers through in-store signage, and public service announcements and advertisements, about the social distancing requirements set forth in this Order (Social Distancing Requirements); and
• discontinue use of reusable bags.
Households must limit the number of members who enter stores to the minimum necessary.
3. Requirements for non-essential stores. Retail stores not designated as Essential Businesses and Operations may re-open for the limited purposes of fulfilling telephone and online orders through pick-up outside the store and delivery – which are deemed to be Minimum Basic Operations. Employees working in the store must follow the social Distancing Requirements, and must wear a face covering when they may come within six feet of another employee or a customer.
4. Requirements for manufacturers. Manufacturers that continue to operate pursuant to this Order must follow Social Distancing Requirements and take appropriate precautions, which may include: • providing face coverings to all employees who are not able to maintain a minimum six-foot social distance at all times; • staggering shifts; • reducing line speeds; • operating only essential lines, while shutting down non-essential lines; • ensuring that all spaces where employees may gather, including locker rooms and lunchrooms, allow for social distancing; and • downsizing operations to the extent necessary to allow for social distancing and to provide a safe workplace in response to the COVID-19 emergency.
5. Requirements for all businesses. All businesses must evaluate which employees are able to work from home, and are encouraged to facilitate remote work from home when possible. All businesses that have employees physically reporting to a worksite must post the attached guidance from the Illinois Department of Public Health (IDPH) regarding workplace safety during the COVID-19 emergency.
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Section 2. Stay at Home; Social Distancing Requirements; and Essential Businesses and Operations
1. Stay at home or place of residence. With exceptions as outlined below, all individuals currently living within the State of Illinois are ordered to stay at home or at their place of residence except as allowed in this Executive Order. To the extent individuals are using shared or outdoor spaces when outside their residence, they must at all times and as much as reasonably possible maintain social distancing of at least six feet from any other person, consistent with the Social Distancing Requirements set forth in this Executive Order. All persons may leave their homes or place of residence only for Essential Activities, Essential Governmental Functions, or to operate Essential Businesses and Operations, all as defined below.
Individuals experiencing homelessness are exempt from this directive, but are strongly urged to obtain shelter, and governmental and other entities are strongly urged to make such shelter available as soon as possible and to the maximum extent practicable (and to use in their operation COVID-19 risk mitigation practices recommended by the U.S. Centers for Disease Control and Prevention (CDC) and the Illinois Department of Public Health (IDPH)). Individuals whose residences are unsafe or become unsafe, such as victims of domestic violence, are permitted and urged to leave their home and stay at a safe alternative location. For purposes of this Executive Order, homes or residences include hotels, motels, shared rental units, shelters, and similar facilities.
2. Non-essential business and operations must cease. All businesses and operations in the State, except Essential Businesses and Operations as defined below, are required to cease all activities within the State except Minimum Basic Operations, as defined below. For clarity, businesses may also continue operations consisting exclusively of employees or contractors performing activities at their own residences (i.e., working from home).
All Essential Businesses and Operations are encouraged to may remain open consistent with the express provisions of this Order and the intent of this Order as set forth in Section 1, Paragraph 16 below. To the greatest extent feasible, Essential Businesses and Operations shall comply with Social Distancing Requirements as defined in this Executive Order, including by maintaining six-foot social distancing for both employees and members of the public at all times, including, but not limited to, when any customers are standing in line.
3. Prohibited activities. All public and private gatherings of any number of people occurring outside a single household or living unit are prohibited, except for the limited purposes permitted by this Executive Order. Pursuant to current guidance from the CDC, any gathering of more than ten people is prohibited unless exempted by this Executive Order. Nothing in this Executive Order prohibits the gathering of members of a household or residence.
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All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, museums, arcades, fairs, children’s play centers, playgrounds, funplexes, theme parks, bowling alleys, movie and other theaters, concert and music halls, and country clubs or social clubs shall be closed to the public.
This Executive Order supersedes Section 2 of Executive Order 2020-07 (COVID-19 Executive Order No. 5), which prohibited gatherings of 50 people or more.
4. Prohibited and permitted travel. All travel, including, but not limited to, travel by automobile, motorcycle, scooter, bicycle, train, plane, or public transit, except Essential Travel and Essential Activities as defined herein, is prohibited. People riding on public transit must comply with Social Distancing Requirements to the greatest extent feasible. This Executive Order allows travel into or out of the State to maintain Essential Businesses and Operations and Minimum Basic Operations.
5. Leaving the home for essential activities is permitted. For purposes of this Executive Order, individuals may leave their residence only to perform any of the following Essential Activities, and must follow the Social Distancing Requirements set forth in this Order, including wearing face coverings when in public or at work:
a. For health and safety. To engage in activities or perform tasks essential to their health and safety, or to the health and safety of their family or household members (including, but not limited to, pets), such as, by way of example only and without limitation, seeking emergency services, obtaining medical supplies or medication, or visiting a health care professional.
b. For necessary supplies and services. To obtain necessary services or supplies for themselves and their family or household members, or to deliver those services or supplies to others, such as, by way of example only and without limitation, groceries and food, household consumer products, supplies they need to work from home, and products necessary to maintain the safety, sanitation, and essential operation of residences.
c. For outdoor activity. To engage in outdoor activity, provided the individuals comply with Social Distancing Requirements, as defined below, such as, by way of example and without limitation, walking, hiking, running, and biking. Individuals may go to public parks and open outdoor recreation areas, including specific State parks that remain open for certain activities, as designated by the Illinois Department of Natural Resources. Fishing and boating in groups of no more than two people are permitted. Golf is permitted only when following the guidelines provided by the Illinois Department of Commerce
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and Economic Opportunity (DCEO). However, Playgrounds may increase spread of COVID-19, and therefore shall be closed.
d. For certain types of work. To perform work providing essential products and services at Essential Businesses or Operations (which, as defined below, includes Healthcare and Public Health Operations, Human Services Operations, Essential Governmental Functions, and Essential Infrastructure) or to otherwise carry out activities specifically permitted in this Executive Order, including Minimum Basic Operations.
e. To take care of others. To care for a family member, friend, or pet in another household, and to transport family members, friends, or pets as allowed by this Executive Order.
6. Elderly people and those who are vulnerable as a result of illness should take additional precautions. People at high risk of severe illness from COVID-19, including elderly people and those who are sick, are urged to stay in their residence to the extent possible except as necessary to seek medical care. Nothing in this Executive Order prevents the Illinois Department of Public Health or local public health departments from issuing and enforcing isolation and quarantine orders pursuant to the Department of Public Health Act, 20 ILCS 2305.
7. Healthcare and Public Health Operations. For purposes of this Executive Order, individuals may leave their residence to work for or obtain services through Healthcare and Public Health Operations.
Healthcare and Public Health Operations includes, but is not limited to: hospitals; clinics; dental offices; pharmacies; public health entities, including those that compile, model, analyze and communicate public health information; pharmaceutical, pharmacy, medical device and equipment, and biotechnology companies (including operations, research and development, manufacture, and supply chain); organizations collecting blood, platelets, plasma, and other necessary materials; licensed medical cannabis dispensaries and licensed cannabis cultivation centers; reproductive health care providers; eye care centers, including those that sell glasses and contact lenses; home healthcare services providers; mental health and substance use providers; other healthcare facilities and suppliers and providers of any related and/or ancillary healthcare services; and entities that transport and dispose of medical materials and remains.
Specifically included in Healthcare and Public Health Operations are manufacturers, technicians, logistics, and warehouse operators and distributors of medical equipment, personal protective equipment (PPE), medical gases, pharmaceuticals, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products.
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Healthcare and Public Health Operations also includes veterinary care and all healthcare and grooming services provided to animals.
Healthcare and Public Health Operations shall be construed broadly to avoid any impacts to the delivery of healthcare, broadly defined. Healthcare and Public Health Operations does not include fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, and similar facilities.
8. Human Services Operations. For purposes of this Executive Order, individuals may leave their residence to work for or obtain services at any Human Services Operations, including any provider funded by the Illinois Department of Human Services, Illinois Department of Children and Family Services, or Medicaid that is providing services to the public and including state-operated, institutional, or community-based settings providing human services to the public.
Human Services Operations includes, but is not limited to: long-term care facilities; all entities licensed pursuant to the Child Care Act, 225 ILCS 10, except for day care centers, day care homes, and group day care homes; day care centers licensed as specified in Section 2, Paragraph 12(s) of this of this Executive Order; day programs exempt from licensure under Title 89 of the Illinois Administrative Code, Sections 377.3(a)(1)-(a)(4), (b)(2), and (c); day programs exempt from licensure under Title 89 of the Illinois Administrative Code, Section 377.3(d) (subject to the conditions governing exempt day care homes set forth in Section 1, Paragraph 12(s) of this Executive Order); residential settings and shelters for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness; transitional facilities; home-based settings to provide services to individuals with physical, intellectual, and/or developmental disabilities, seniors, adults, and children; field offices that provide and help to determine eligibility for basic needs including food, cash assistance, medical coverage, child care, vocational services, rehabilitation services; developmental centers; adoption agencies; businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged individuals, individuals with physical, intellectual, and/or developmental disabilities, or otherwise needy individuals.
Human Services Operations shall be construed broadly to avoid any impacts to the delivery of human services, broadly defined.
9. Essential Infrastructure. For purposes of this Executive Order, individuals may leave their residence to provide any services or perform any work necessary to offer, provision, operate, maintain and repair Essential Infrastructure.
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Essential Infrastructure includes, but is not limited to: food production, distribution, and sale; construction (including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, and housing construction); building management and maintenance; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical (including power generation, distribution, and production of raw materials); distribution centers; oil and biofuel refining; roads, highways, railroads, and public transportation; ports; cybersecurity operations; flood control; solid waste and recycling collection and removal; and internet, video, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).
Essential Infrastructure shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined.
10. Essential Governmental Functions. For purposes of this Executive Order, all first responders, emergency management personnel, emergency dispatchers, court personnel, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support Essential Businesses and Operations are categorically exempt from this Executive Order.
Essential Government Functions means all services provided by the State or any municipal, township, county, subdivision or agency of government and needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety and welfare of the public, and including contractors performing Essential Government Functions. Each government body shall determine its Essential Governmental Functions and identify employees and/or contractors necessary to the performance of those functions.
This Executive Order does not apply to the United States government. Nothing in this Executive Order shall prohibit any individual from performing or accessing Essential Governmental Functions.
11. Businesses covered by this Executive Order. For the purposes of this Executive Order, covered businesses include any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function it performs, or its corporate or entity structure.
12. Essential Businesses and Operations. For the purposes of this Executive Order, Essential Businesses and Operations means Healthcare and Public Health Operations,
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Case: 3:20-cv-50153 Document #: 1-2 Filed: 04/30/20 Page 10 of 16 PageID #:53
Human Services Operations, Essential Governmental Functions, and Essential Infrastructure, and the following:2
a. Stores that sell groceries and medicine. Grocery stores, pharmacies, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, and other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, alcoholic and non-alcoholic beverages, and any other household consumer products (such as cleaning and personal care products). This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, and also that sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and Essential Businesses and Operations;
b. Food, beverage, and cannabis production and agriculture. Food and beverage manufacturing, production, processing, and cultivation, including farming, livestock, fishing, baking, and other production agriculture, including cultivation, marketing, production, and distribution of animals and goods for consumption; licensed medical and adult use cannabis dispensaries and licensed cannabis cultivation centers; and businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, shelters, kennels, and adoption facilities;
c. Organizations that provide charitable and social services. Businesses and religious and secular nonprofit organizations, including food banks, when providing food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities;
d. Media. Newspapers, television, radio, and other media services;
e. Gas stations and businesses needed for transportation. Gas stations and autosupply, auto-repair, and related facilities and bicycle shops and related facilities;
f. Financial institutions. Banks, currency exchanges, consumer lenders, including but not limited, to payday lenders, pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, affiliates of financial institutions, entities
2 On March 19, 2020, the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency, issued a Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response. The definition of Essential Businesses and Operations in this Order is meant to encompass the workers identified in that Memorandum.
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Case: 3:20-cv-50153 Document #: 1-2 Filed: 04/30/20 Page 11 of 16 PageID #:54
that issue bonds, related financial institutions, and institutions selling financial products;
g. Hardware and supply stores and greenhouses, garden centers, and nurseries. Hardware stores and businesses that sell electrical, plumbing, and heating material, and greenhouses, garden centers, and nurseries;
h. Critical trades. Building and Construction Tradesmen and Tradeswomen, and other trades including but not limited to plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses and Operations;
i. Mail, post, shipping, logistics, delivery, and pick-up services. Post offices and other businesses that provide shipping and delivery services, and businesses that ship or deliver groceries, food, alcoholic and non-alcoholic beverages, goods or services to end users or through commercial channels;
j. Educational institutions. Educational institutions—including public and private pre-K-12 schools, colleges, and universities—for purposes of facilitating distance learning, performing critical research, or performing essential functions, provided that social distancing of six-feet per person is maintained to the greatest extent possible. Educational institutions may allow and establish procedures for pick-up of necessary supplies and/or student belongings and dormitory move-out if conducted in a manner consistent with public health guidelines, including Social Distancing Requirements. This Executive Order is consistent with and does not amend or supersede Executive Order 2020-05 (COVID-19 Executive Order No. 3) or Executive Order 2020-06 (COVID-19 Executive Order No. 4) except that affected schools have been closed past the April 7, 2020 date reflected in those Orders;
k. Laundry services. Laundromats, dry cleaners, industrial laundry services, and laundry service providers;
l. Restaurants for consumption off-premises. Restaurants and other facilities that prepare and serve food, but only for consumption off-premises, through such means as in-house delivery, third-party delivery, drive-through, curbside pick-up, and carry-out. Schools and other entities that typically provide food services to students or members of the public may continue to do so under this Executive Order on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis only. Schools and other entities that
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Case: 3:20-cv-50153 Document #: 1-2 Filed: 04/30/20 Page 12 of 16 PageID #:55
provide food services under this exemption shall not permit the food to be eaten at the site where it is provided, or at any other gathering site due to the virus’s propensity to physically impact surfaces and personal property. This Executive Order is consistent with and does not amend or supersede Section 1 of Executive Order 2020-07 (COVID-19 Executive Order No. 5) except that Section 1 is ordered to be extended through April 7, 2020;
m. Supplies to work from home. Businesses that sell, manufacture, or supply products needed for people to work from home;
n. Supplies for Essential Businesses and Operations. Businesses that sell, manufacture, or supply other Essential Businesses and Operations with the support or materials necessary to operate, including computers, audio and video electronics, household appliances; IT and telecommunication equipment; hardware, paint, flat glass; electrical, plumbing and heating material; sanitary equipment; personal hygiene products; food, food additives, ingredients and components; medical and orthopedic equipment; optics and photography equipment; diagnostics, food and beverages, chemicals, soaps and detergent; and firearm and ammunition suppliers and retailers for purposes of safety and security;
o. Transportation. Airlines, taxis, transportation network providers (such as Uber and Lyft), vehicle rental services, paratransit, and other private, public, and commercial transportation and logistics providers necessary for Essential Activities and other purposes expressly authorized in this Executive Order;
p. Home-based care and services. Home-based care for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness, including caregivers such as nannies who may travel to the child’s home to provide care, and other in-home services including meal delivery;
q. Residential facilities and shelters. Residential facilities and shelters for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness;
r. Professional services. Professional services, such as legal services, accounting services, insurance services, real estate services (including appraisal and title services);
s. Day care centers for employees exempted by this Executive Order. Day care centers granted an emergency license pursuant to Title 89, Section 407.500 of the Illinois Administrative Code, governing Emergency Day Care Programs for
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Case: 3:20-cv-50153 Document #: 1-2 Filed: 04/30/20 Page 13 of 16 PageID #:56
children of employees exempted by this Executive Order to work as permitted. The licensing requirements for day care homes pursuant to Section 4 of the Child Care Act, 225 ILCS 10/4, are hereby suspended for family homes that receive up to 6 children for the duration of the Gubernatorial Disaster Proclamation.
t. Manufacture, distribution, and supply chain for critical products and industries. Manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitization, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, petroleum and fuel, mining, construction, national defense, communications, as well as products used by other Essential Businesses and Operations.
u. Critical labor union functions. Labor Union essential activities including the administration of health and welfare funds and personnel checking on the wellbeing and safety of members providing services in Essential Businesses and Operations – provided that these checks should be done by telephone or remotely where possible.
v. Hotels and motels. Hotels and motels, to the extent used for lodging and delivery or carry-out food services.
w. Funeral services. Funeral, mortuary, cremation, burial, cemetery, and related services.
13. Minimum Basic Operations. For the purposes of this Executive Order, Minimum Basic Operations include the following, provided that employees comply with Social Distancing Requirements, to the extent possible, while carrying out such operations:
a. The minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions.
b. The minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.
c. For retail stores, fulfilling online and telephonic orders through pick-up outside the store or delivery.
14. Essential Travel. For the purposes of this Executive Order, Essential Travel includes travel for any of the following purposes. Individuals engaged in any Essential Travel must comply with all Social Distancing Requirements as defined in this Section.
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a. Any travel related to the provision of or access to Essential Activities, Essential Governmental Functions, Essential Businesses and Operations, or Minimum Basic Operations.
b. Travel to care for elderly, minors, dependents, persons with disabilities, or other vulnerable persons.
c. Travel to or from educational institutions for purposes of receiving materials for distance learning, for receiving meals, and any other related services.
d. Travel to return to a place of residence from outside the jurisdiction.
e. Travel required by law enforcement or court order, including to transport children pursuant to a custody agreement.
f. Travel required for non-residents to return to their place of residence outside the State. Individuals are strongly encouraged to verify that their transportation out of the State remains available and functional prior to commencing such travel.
15. Social Distancing, Face Covering, and PPE Requirements. For purposes of this Executive Order, Social Distancing Requirements includes maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.
a. Required measures. Essential Businesses and Operations and businesses engaged in Minimum Basic Operations must take proactive measures to ensure compliance with Social Distancing Requirements, including where possible:
i. Designate six-foot distances. Designating with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;
ii. Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;
iii. Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers; and
iv. Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.
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v. Face Coverings and PPE. Providing employees with appropriate face coverings and requiring that employees wear face coverings where maintaining a six-foot social distance is not possible at all times. When the work circumstances require, providing employees with other PPE in addition to face coverings.
16. Intent of this Executive Order. The intent of this Executive Order is to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible. When people need to leave their places of residence, whether to perform Essential Activities, or to otherwise facilitate authorized activities necessary for continuity of social and commercial life, they should at all times and as much as reasonably possible comply with Social Distancing Requirements. All provisions of this Executive Order should be interpreted to effectuate this intent. Businesses not specifically addressed by this Executive Order generally should cease activities and reduce to Minimum Basic Operations.
17. Enforcement. This Executive Order may be enforced by State and local law enforcement pursuant to, inter alia, Section 7, Section 15, Section 18, and Section 19 of the Illinois Emergency Management Agency Act, 20 ILCS 3305.
Businesses must follow guidance provided or published by: the Office of the Governor, the Illinois Department of Commerce and Economic Opportunity, and State and local law enforcement regarding whether they qualify as Essential; and the Illinois Department of Public Health, local public health departments, and the Workplace Rights Bureau of the Office of the Illinois Attorney General with respect to Social Distancing Requirements. Pursuant to Section 25(b) of the Whistleblower Act, 740 ILCS 174, businesses are prohibited from retaliating against an employee for disclosing information where the employee has reasonable cause to believe that the information discloses a violation of this Order.
18. No limitation on authority. Nothing in this Executive Order shall, in any way, alter or modify any existing legal authority allowing the State or any county, or local government body from ordering (1) any quarantine or isolation that may require an individual to remain inside a particular residential property or medical facility for a limited period of time, including the duration of this public health emergency, or (2) any closure of a specific location for a limited period of time, including the duration of this public health emergency. Nothing in this Executive Order shall, in any way, alter or modify any existing legal authority allowing a county or local government body to enact provisions that are stricter than those in this Executive Order.
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Case: 3:20-cv-50153 Document #: 1-2 Filed: 04/30/20 Page 16 of 16 PageID #:59 Section 3. Savings clause. If any provision of this Executive Order or its application to any person or circumstance is held invalid by any court of competent jurisdiction, this invalidity does not affect any other provision or application of this Executive Order, which can be given effect without the invalid provision or application. To achieve this purpose, the provisions of this Executive Order are declared to be severable.
_______________________ JB Pritzker, Governor Issued by the Governor April 30, 2020 Filed by the Secretary of State April 30, 2020
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 Case: 3:20-cv-50153 Document #: 6 Filed: 04/30/20 Page 1 of 4 PageID #:89

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-for- )

Profit Corporation, and PASTOR STEPHEN ) No. 3:20-cv-50153

CASSELL, an individual,

)

)

Plaintiffs,

)

)

v.

)

)

JAY ROBERT PRITZKER, Governor of the )

State of Illinois, DAVID SNYDERS, Sheriff of ) JURY TRIAL DEMANDED

Stephenson County, Illinois, STEVE )

SCHAIBLE, Chief of Police of the Village of )

Lena, Illinois, and CRAIG BEINTEMA, )

Administrator of the Department of Public Health )

of Stephenson County, Illinois, in their official )

capacities,

)

)

Defendants.

)

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs, by and through counsel and pursuant to Fed. R. Civ. P. 7 and 65, and Local Rule 77.2(e), move the Court for a temporary restraining order and a preliminary injunction enjoining Defendants from applying the defendant Pritzker’s Executive Orders 2020-10 and 2020-18 and his announced upcoming executive order to take effect May 1, 2020, in a manner that denies Plaintiffs and others not before the Court their constitutional rights of Free Speech, the Free Exercise of Religion, and the Right to Peaceably Assemble. In support of this motion, Plaintiffs have filed their Verified Complaint, and submit simultaneously herewith a memorandum of law in support of this motion.

1

Case: 3:20-cv-50153 Document #: 6 Filed: 04/30/20 Page 2 of 4 PageID #:90
Plaintiffs state that: (1) Plaintiffs are likely to succeed on the merits; (2) immediate relief is necessary to prevent immediate and irreparable harm to Plaintiffs’ First and Fourteenth Amendment rights to Free Speech, the Free Exercise of Religion, and the Right to Peaceably Assemble, and Plaintiffs’ rights under the Illinois Religious Freedom Restoration Act; (3) the threatened injury to Plaintiffs’ constitutional rights far outweighs any possible harm an injunction would cause Defendants; and (4) issuing an injunction will serve the public interest by upholding rights guaranteed under the First and Fourteenth Amendments to the United States Constitution and the Illinois Religious Freedom Restoration Act.
Plaintiffs have also served courtesy copies of the Complaint and exhibits upon the defendants themselves or their known counsel, and will serve courtesy copies of this motion and memorandum immediately upon filing.
Unless this Court enjoins Defendants, Plaintiffs will suffer an immediate and grievous loss of First Amendment rights. Counsel for Plaintiffs has provided notice to Defendants of its intent to seek this emergency relief. The emergency nature of the proceedings stems from the recent announcement by Defendant Pritzker that he would issue a new executive order to keep every church and religious gathering and religious ministry, in all 102 counties in Illinois, entirely shuttered for at least another month, beginning Friday, May 1.
WHEREFORE, Plaintiffs respectfully request that this Court enter an immediate injunction restraining Defendants, their agents, employees, and those acting in concert with them from applying the Illinois Executive Orders 2020-10 and 2020-18 and his announced upcoming executive order to take effect May 1, 2020, in a manner infringing Plaintiffs’ constitutionally protected activities and in particular Plaintiffs’ right to conduct worship services, religious
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Case: 3:20-cv-50153 Document #: 6 Filed: 04/30/20 Page 3 of 4 PageID #:91
gatherings, and religious ministry, and that a bond be waived or that only nominal bond be required.
Respectfully submitted, /s/Martin Whittaker Peter Breen Thomas Brejcha Martin Whittaker THOMAS MORE SOCIETY 309 W. Washington St, Ste. 1250 Chicago, IL 60606 (312) 782-1680 pbreen@thomasmoresociety.org tbrejcha@thomasmoresociety.org mwhittaker@thomasmoresociety.org Attorneys for Plaintiffs
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Case: 3:20-cv-50153 Document #: 6 Filed: 04/30/20 Page 4 of 4 PageID #:92

CERTIFICATE OF SERVICE

I hereby certify that I have this day served, via email, copies of the foregoing on the

defendants, this 30th day of April, 2020, addressed as follows:

Benjamin M. Jacobi bjacobi@okgc.com Attorney for Defendants Snyders and Beintema

sschaible@yahoo.com Defendant Steve Schaible

Sarah Hunger Deputy Solicitor General Office of the Illinois Attorney General (312) 814-5202 shunger@atg.state.il.us CivilAppeals@atg.state.il.us Attorney for Defendant Pritzker

/s/Martin Whittaker Attorney for Plaintiff

4

 
 Case: 3:20-cv-50153 Document #: 7 Filed: 04/30/20 Page 1 of 18 PageID #:93

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-for- )

Profit Corporation, and PASTOR STEPHEN ) No. 3:20-cv-50153

CASSELL, an individual,

)

)

Plaintiffs,

)

)

v.

)

)

JAY ROBERT PRITZKER, Governor of the )

State of Illinois, DAVID SNYDERS, Sheriff of ) JURY TRIAL DEMANDED

Stephenson County, Illinois, STEVE )

SCHAIBLE, Chief of Police of the Village of )

Lena, Illinois, and CRAIG BEINTEMA, )

Administrator of the Department of Public Health )

of Stephenson County, Illinois, in their official )

capacities,

)

)

Defendants.

)

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Case: 3:20-cv-50153 Document #: 7 Filed: 04/30/20 Page 2 of 18 PageID #:94
INTRODUCTION Plaintiffs seek to be treated with equal dignity and worth to liquor stores, landscapers, and lawyers. Plaintiffs have seen their right to free exercise of religion declared “non-essential” and trampled for almost a month and a half—with no end in sight—while other residents whose activities are deemed “essential” move and act with relative freedom. Defendants have accomplished this by threat of civil and criminal penalty, issued under invalid statutory authority, and authority that, even if it were valid, violates constitutional and statutory commands protecting religious expression and assembly. Defendant Pritzker’s orders devalue and denigrate religious expression. Plaintiffs are entitled to have a public place in civil society, consistent with the privileged place of religion in our constitutional order—and to at least enjoy equal treatment to money-making enterprises that are and have been allowed to operate during the coronavirus epidemic. With Defendant Pritzker’s current executive order set to expire today, Plaintiffs have announced and intend to reopen their congregation and hold services this Sunday, May 3. However, Defendant Pritzker has announced yet another month-long executive order to come, which in draft form continues to treat churches and religious ministries as second-class citizens of Illinois—“non-essential” to the State. To stave off arrest and prosecution for the exercise of their fundamental liberties, Plaintiffs repair to this Court for refuge.
STATEMENT OF FACTS Plaintiffs are an evangelical Christian pastor, Stephen Cassell, and the church he leads in Lena, Illinois—The Beloved Church (“the Church”). Complaint, ¶¶ 13-14.1
1 Pastor Cassell has verified the factual matters pleaded in the Verified Complaint in this case. Factual citations, therefore, will be to the relevant paragraphs of the Verified Complaint.
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As an evangelical Christian, scripturally inspired and scripturally obedient congregation, the members of the Church regard certain rites and practices to be mandatory. Complaint, ¶¶ 2433. Principal among those mandatory religious rites and practices is in-person, communal worship at Sunday morning services at the the Church’s Lena church building. Id. Pastor Cassell regards it as a personal, scripturally mandated obligation of his own to plan, participate and lead those services himself. Id. But Pastor Cassell and his congregation at the Church have been unable to perform those religious obligations throughout the month of April.
Pastor Cassell and the congregation of the Church last had Sunday morning services on March 29, 2020. Complaint, ¶¶ 47-50. Since then, Defendants have forbidden the congregation to assemble and pray at Sunday services—or any other communal religious activity in the Lena church, for that matter—and the plaintiffs have so far complied with that command. Id.
Defendants communicated that command by personally serving Pastor Cassell with a “Cease and Desist Notice” drafted by Defendant Beintema, the Public Health Administrator for Stephenson County, and delivered by a uniformed sheriff’s deputy, an employee of Defendant Snyders, the Sheriff of Stephenson County. Id.
That “Cease and Desist Notice” commanded Plaintiffs to “adhere to” the terms of an Executive Order promulgated by defendant Pritzker on March 9, EO 2020-10.2 Complaint, ¶¶ 47-49 & Exh. A. Among the decrees in EO 2020-10 is a ban of all “public and private gatherings of any number of people occurring outside a single household or living unit … [A]ny gathering of more than ten people is prohibited unless exempted by this Executive Order.” Sec. 1, par. 3.
The exemptions from that broad prohibition are granted to what the Executive Order terms “Essential Businesses and Operations.” Id., sec. 1, pars. 1, 2, and 3. But, lest Pastor Cassell
2 Plaintiffs cite EO 2020-10 throughout, as it provides the model operative language found in all of the executive orders.
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and the congregation of the Beloved Church have any doubt, the “Cease and Desist Notice” explicitly warned that “Essential Businesses and Operations have not been defined to include religious gatherings.” Complaint, ¶¶ 47-49 & Exh. C (emphasis supplied). And to impress on Pastor Cassell and his congregation the seriousness of the command, the “Cease and Desist Notice” also warned that failure to “adhere” could result in the involuntary physical closure of the Lena church building, which action “police officers, sheriffs, and all other officers in Illinois are authorized to enforce… In addition ... you may be subject to additional civil and criminal penalties.” Id.
Plaintiffs consequently stopped any group activity in the Lena church building, including Sunday morning services, after Pastor Cassell was served. Complaint, ¶ 50.
EO 2020-10 was to expire under its own terms on April 7, 2020, consonant with the statutory grant of emergency powers to defendant Pritzker, which limits the effective term of any such emergency action to “a period not to exceed 30 days” from the proclamation of a state of emergency. 20 ILCS 3305/7. See, Proclamation, March 9, 2020 (found at https://www2.illinois. gov/sites/gov/Documents/CoronavirusDisasterProc-3-12-2020.pdf), attached hereto as Exhibit A. Plaintiffs, then, were set to resume their Sunday morning services on Easter Sunday, April 12, 2020.
But on April 1, defendant Pritzker issued a second proclamation, purporting to “continue” his emergency powers for another 30 days, through the end of April. See, Proclamation, April 1, 2020 (found at https://www2.illinois.gov/sites/gov/Documents/APPROVED - Coronavirus Disaster Proc WORD.pdf) (“This proclamation continues the Governor’s authority to exercise all of the emergency powers”), attached hereto as Exhibit B. Thereafter, pursuant to those purportedly “continue[d]” powers, defendant Pritzker promulgated EO 2020-18, that, among
3

Case: 3:20-cv-50153 Document #: 7 Filed: 04/30/20 Page 5 of 18 PageID #:97
other things, continued the stay-at-home order of EO 2020-10, including its prohibitions on religious gatherings. EO (found at https://www2.illinois.gov/Pages/Executive-Orders/ ExecutiveOrder2020-18.aspx) (“WHEREAS, I find it necessary to continue and extend the Executive Orders issued to date in response to the outbreak of COVID-19, Executive Orders 2020-03, 2020-04, 2020-05, 2020-06, 2020-07, 2020-08, 2020-09, and 2020-10 …”), attached hereto as Exhibit C.
Plaintiffs, therefore, believe they are and remain subject to the “adhere to” command of the “Cease and Desist Notice,” and also face threats of arrest by Defendant Pritzker and the Illinois State Police, and so have had no Sunday services in their church throughout April. Complaint, ¶¶ 8, 45-50.
Moreover, so-called essential businesses continue to operate open to the public without abatement. Menards and Walmart stores in Stephenson County routinely assemble many more than 10 customers in their facilities. Id., ¶ 52. Neither store requires those customers to observe 6-foot social distancing as required by Pritzker’s Executive Orders, and no action by the authorities has been taken against them. Id. There are no time limits on the time one can remain wandering the aisles at these mega-stores, either.
Large enterprises with many employees also continue, like Snak King, a local snack food manufacturer. Id., ¶ 53. Numerous employees are in attendance at the Snak King plant, presumably working 8-hour or more shifts to meet the needs of consumers of snack food products. Id.
All “mental health and substance use providers” in Illinois remain open for in-person counseling and services, under the “Healthcare and Public Health Operations” section of EO 2020-10. Id., ¶ 54. Yet, the valuable religious and spiritual counsel and prayer provided by Pastor
4

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Cassell is shut down—he is barred from gathering with his congregants or even leaving his home to visit them under the Executive Order. Id., ¶¶ 26, 32, 33.
And liquor stores and all manner of other businesses, which cannot be said to provide the vital bare necessities of life, are allowed to remain open to the public in Stephenson and surrounding counties. Id., ¶ 55. All the while, the Church is shuttered and religious gatherings and ministry and travel are banned.
ARGUMENT I. PLAINTIFFS SATISFY THE STANDARD FOR A TEMPORARY
RESTRAINING ORDER. A TRO is designed to preserve the status quo ante and prevent irreparable harm so long as is necessary to hold a hearing. Granny Goose Foods, Inc. v. Bd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). The status quo ante refers to the last peaceable uncontested status existing between the parties before the dispute developed (viz., in this case, before Pastor Cassell was served with the “Cease and Desist Notice” at the end of March). Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1071 (10th Cir. 2009). That status quo ante thus involved the plaintiffs’ weekly Sunday morning services, religious gatherings, and religious ministries, along with travel thereto. Whether requesting a temporary restraining order or a preliminary injunction, a movant “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Joelner v. Village of Washington Park, 378 F.3d 613, 619-620 (7th Cir. 2004); Christian Legal Society v. Walker, 453 F.3d 853, 858-859 (7th Cir. 2006); First Baptist Church v. Kelly, No. 20-1102-JWB (D. Kan., April 18, 2020) (opinion attached, at 5).
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If a moving party makes a prima facie showing of those elements, then the inquiry becomes a ‘sliding scale’ analysis where these factors are weighed against one another … The loss of First Amendment freedoms unquestionably constitutes irreparable injury … Concomitantly, there can be no irreparable harm to [a governmental actor] when it is prevented from enforcing an unconstitutional [law].
Joelner, 378 F.3d at 619-620 (internal citations omitted).
Plaintiffs satisfy all these requirements here.
A. Plaintiffs Will Likely Succeed on the Merits.
To determine the likelihood of success on the merits, the Court looks to the standards
provided by the substantive law. To satisfy the “likelihood of success” inquiry, a plaintiff does
not have to show certain ultimate success at trial. Instead, a party must make an initial
presentation of support for the elements of a claim, after which “the inquiry becomes a ‘sliding
scale’ analysis” where all considerations are weighed together, and potential First Amendment
injuries to a plaintiff are given relatively greater weight. Joelner, supra, loc. cit.
The substantive law in this case is found in federal case law addressing the First and Fourteenth Amendments to the United States Constitution,3 and in the express language of the
Illinois Religious Freedom Restoration Act (“Illinois RFRA”). Plaintiffs have a substantial
likelihood of success on the merits of their claims. 1. EO 2020-10, and its purported “continuation” in EO 2020-18, violates the Illinois Religious Freedom Restoration Act.
The purpose of the Illinois Religious Freedom Restoration Act is as follows: To restore the compelling interest test as set forth in Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963), and to guarantee that a
3 The First Amendment provides in pertinent part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . .” U.S. Const. am. 1. The free speech clause has been “incorporated” by the Fourteenth Amendment and made applicable against the states. E.g., Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 398 (4th Cir. 2005) (citing West Virginia v. Barnette, 319 U.S. 624, 642 (1943)).
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test of compelling governmental interest will be imposed on all State and local (including home rule unit) laws, ordinances, policies, procedures, practices, and governmental actions in all cases in which the free exercise of religion is substantially burdened. 775 ILCS 35/10(b)(1). Illinois RFRA thus expressly rejected the holding of Employment Division v. Smith, 494 U.S. 872 (1990), that a court analyzing the propriety of government action substantially burdening the free exercise of religion must inquire whether the action is taken pursuant to a neutral law of general application. Under Illinois RFRA, the only questions to be asked are (1) Does the governmental action substantially burden the free exercise of religion? and (2) Is the governmental action “in furtherance of a compelling governmental interest and … the least restrictive means of furthering that compelling governmental interest.” 775 ILCS 35/15. Plaintiffs are a church and its pastor. They have been ordered by the government not to adjust their practices but to entirely cease all religious operations and activities, stop travel to religious activities, and close their church facility. Complaint, ¶¶ 24-33. The Executive Orders don’t “substantially burden” Plaintiffs’ free exercise, they ban it outright. By prohibiting all gatherings, the Executive Orders prevent the Church from functioning as a church. The burden then shifts to Defendants to show that their actions are the least restrictive means to further a compelling state interest. Those least restrictive means must be narrowly tailored to the circumstances: Defendants cannot meet that heavy burden. As the federal District Court for the District of Kansas reasoned in granting a TRO in a case involving gubernatorial orders strikingly similar to those at issue here, orders that prohibit “gatherings of more than ten congregants or parishioners in the same building or confined or enclosed space” indisputably substantially burden the free exercise of religion. Yet,
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Defendant [Governor of Kansas] has not argued that mass gatherings at churches pose unique health risks that do not arise in mass gatherings at airports, offices, and production facilities. Yet the exemption for religious activities has been eliminated while it remains for a multitude of activities that appear comparable in terms of health risks. First Baptist Church v. Kelly, No. 20-1102-JWB (D. Kan. April 18, 2020), at 13-15. (A copy of that opinion is attached B). While protecting the public health may be a compelling interest, courts must “scrutinize the asserted harm of granting specific exemptions to particular religious claimants.” Burwell v. Hobby Lobby, 573 U.S. 682, 726–27 (2014). “[B]roadly formulated” interests and generalized speculations or assertions are not compelling. See, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006). Moreover, “a law cannot be regarded as protecting an interest ‘of the highest order’ when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547. Closing church buildings and forbidding religious gatherings and ministries indisputably burdens the free exercise of religion. Simultaneously allowing similar secular and commercial premises that attract similarly sized or larger gatherings to stay open shows that such closures do not further “a compelling governmental interest… [by] the least restrictive means.” 775 ILCS 35/15. There is no basis, much less a compelling one, to declare churches “non-essential” and shut them down entirely, while declaring a veritable laundry list of businesses, healthcare providers, professional offices, retail stores, and more to be “essential” and allowed open. Moreover, there is no basis, much less a compelling one, to forbid Illinoisans from leaving their homes to attend churches or religious gatherings while allowing them to do so for “outdoor activity” or for a host of other alleged “essential” activities. In the announced upcoming executive order, by popular request of the residents of Illinois, Defendant Pritzker has added dog
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grooming, golf, and fishing to the list of “essential” activities, but church and religious gatherings remain illegal, with no projected end in sight. See, Complaint, Exh. B.
Further, there is no basis, much less a compelling one, to place a total ban on religious gatherings of any number outside a household (as allegedly “non-essential”), while placing no numerical constraint at all on attendance at alleged “essential businesses and operations,” such as retail businesses, including the state’s liquor stores and big box stores, manufacturing facilities, and the like. Complaint, ¶¶ 51-55 & Exh. A, EO 2020-10, sec. 1, par. 7.
Particularly as to the liquor stores, those stores often are smaller, with employees and patrons in close proximity, not socially distant. And while the big box stores and manufacturing facilities may be larger, individuals stay inside those facilities for much longer periods of time, and at least as to the stores, social distancing may be difficult or merely not enforced. Id. And the act of a pastor providing one-on-one or small group religious counseling and prayer is physically (though not necessarily spiritually) identical to a mental health or substance abuse provider providing one-on-one or small group counseling or therapy. Id. If secular counseling and therapy can be performed safely, there is no reason why religious counseling and prayer can’t be.
Insofar as Defendants take the position that shutting down all religious services and gatherings across Illinois for months is required to slow the spread of COVID-19, the veritable cornucopia of exemptions from the Executive Orders’ general prohibitions would clearly endanger the public in a “similar or greater degree” as plaintiffs’ religious services. Lukumi, 508 U.S. at 543. The underinclusion of the Order is thus “substantial, not inconsequential.” Id.
Defendants’ forced closure of plaintiffs’ church building and ban on religious gatherings, including religious prayer and counseling, by the Executive Orders and “Cease and Desist Notice” violates Illinois RFRA.
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2. EO 2020-10, and its purported “continuation” in EO 2020-18, violates the Free Exercise Clause.
The Free Exercise Clause provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” U.S. Const. am. 1.4 This clause “has been applied to the States through the Fourteenth Amendment.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)).
“Under the Free Exercise Clause of the Constitution, the ‘general proposition’ is ‘that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.’” Redemption Cmty. Church v. City of Laurel, Maryland, 333 F. Supp. 3d 521, 536 (D. Md. 2018) (quoting Church of the Lukumi Babalu Aye, 508 U.S. at 531). “In contrast, laws that are not neutral or generally applicable are subject to strict scrutiny and must be justified by a compelling governmental interest that is advanced in the least restrictive means available.” Id. (citing Lukumi); see also Emp't Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990). EOs 2020-10 and 2020-18, and the announced upcoming EO, are neither laws of general applicability nor neutral.
The Supreme Court counseled in Lukumi that “[f]acial neutrality is not determinative.” The Court explained: “The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause ‘forbids subtle departures from neutrality,’ Gillette v. United
4 In addition to their federal First Amendment claims plaintiffs have asserted claims under the corollary provisions of the Illinois Bill of Rights. Under the “limited lockstep” analytical approach that the Illinois Supreme Court takes to construing those provisions, those provisions will be construed at least as broadly as the U.S. Supreme Court construes their federal exemplars, unless there is plain language in the Illinois provisions requiring more demanding standards of government conduct than the federal corollaries. City of Chicago v. Alexander, 2017 IL 120350, at par. 31. Plaintiffs’ state constitutional claims, therefore, have the same or greater likelihood of success on the merits than their federal constitutional claims.
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States, 401 U.S. 437, 452, 91 S.Ct. 828, 837, 28 L.Ed.2d 168 (1971), and ‘covert suppression of particular religious beliefs,’ Bowen v. Roy, supra, 476 U.S. [693], at 703, 106 S.Ct., at 2154 [(1986)](opinion of Burger, C.J.).).” Id., 508 U.S. at 534.
Defendant Pritzker has deliberately swept up churches and religious gatherings with his orders and his public statements, declaring them “non-essential” and refusing even the most innocuous drive-in worship services, all of which is itself indicative of discriminatory intent. When coupled with Defendants’ lack of limits on gatherings at “essential” entities like Walmart, Menards, Snak King, liquor stores, and the like, the inference is even greater. The Order is therefore not neutral, but discriminatory in effect.
Even if not intentionally discriminatory, the Executive Orders’ decisions as to which businesses are “essential” and which are not, and which activities are allowed and which are not, is at best arbitrary. The Executive Orders are not laws of general applicability. Rather, they are a hodgepodge of special rules, exceptions, and provisions. As such, strict scrutiny applies and it must be justified by a compelling government interest. Church of the Lukumi Babalu Aye, 508 U.S. at 531. Defendants cannot meet this high standard.
Finally, the fact that governmental actors may be dealing with emergent circumstances does not change the analysis. The seminal case dealing with constitutional rights in the midst of contagion, Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905), predates modern Carolene Products style constitutional analysis, but the Supreme Court even then recognized that a government “enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict … with any right which [the U.S. Constitution] gives or secures.” Jacobson, 197 U.S. at 25 (1905). A government actor’s exercise of emergency powers “is not conclusive or free from judicial review,” and normal methods of constitutional
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analysis must still be applied. United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971); accord On Fire Christian Center v. Fischer, No. 3:20-cv-264-JRW, 2020 WL 1820249 at *15 (W.D. Ky. April 11, 2020) (“[E]ven under Jacobson, constitutional rights still exist. Among them is the freedom to worship as we choose”) (A copy of the opinion in On Fire Christian Center v. Fischer is attached as Exhibit C).
Even if Jacobson applies against Plaintiffs’ First Amendment claim,5 the sort of sweeping, drastic, and crude measures that may have arguably been excusable under emergency powers on March 9 or March 20 cannot persist to today, April 30. While the epidemic may not be concluded, it is clearly under much better control than it was a month and a half ago. See, e.g., Complaint, ¶¶ 69-72.
In short, defendants can find no refuge in Jacobson and cannot meet its high burden under strict scrutiny. Plaintiffs are very likely to succeed on the merits.
3. EO 2020-10, and its purported “continuation” in EO 2020-18, is Ultra Vires.
Defendant Pritzker’s EO 2020-10 ceased to have legal effect on April 7. The authority that empowers the Governor of Illinois to employ emergency powers, the Emergency Management Agency Act, explicitly limits the duration of the exercise of those powers to “a period not to exceed 30 days” from the proclamation of a state of emergency. 20 ILCS 3305/7. Defendant Pritzker made such a declaration by gubernatorial proclamation on March 9, 2020— and consequently EO 2020-10 limited itself to an effective period ending April 7, 2020. Any action by an agent of Illinois government to continue to enforce its terms is ultra vires.
Defendant Pritzker has, however, arrogated to himself the power to “continue” the duration of those emergency powers by issuing a second gubernatorial proclamation, on April 1,
5 Illinois RFRA provides an independent statutory ground for relief, apart from the First Amendment. 12

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that purportedly “continues the Governor’s authority to exercise all … emergency powers.” (At section 1). A subsequent EO, number 2020-18, taking advantage of that unilaterally arrogated “continuation,” correspondingly extended the provisions of prior EO 2020-10 through the end of April, 2020, well beyond the statutory 30-day expiration of emergency powers.
It is only by operation of these extended emergency powers that the Stephenson County Defendants continue to claim the “Cease and Desist Notice” served on plaintiffs remains in effect, and to claim the authority to enforce the provision of EO 2020-10 against Plaintiffs.
But by statutory command there ceased to be any basis for gubernatorial emergency action after April 7 [20 ILCS 3305/7], and the purported bases for defendants’ orders to plaintiffs to keep their church building closed and to forgo their Sunday morning services have no support in Illinois law.
4. Defendant Pritzker has no authority to quarantine or isolate or to close churches under the IEMA Act. Only the IDPH Act provides that authority.
The Illinois Department of Public Health Act (“IDPH Act”) provides the exclusive remedy for quarantine and isolation and closures, along with ensuring the due process rights of those who are subject to such measures. See, 20 ILCS 2305/2(c) (“Except as provided in this Section, no person or a group of persons may be ordered to be quarantined or isolated and no place may be ordered to be closed and made off limits to the public except with the consent of the person or owner of the place or upon the prior order of a court of competent jurisdiction.”) & 77 Ill.Adm.Code 690.1330 (describing process for quarantine, isolation, and closure). The IDPH Act further provides that IDPH has “supreme authority in matters of quarantine and isolation.” 20 ILCS 2305/2(a). IDPH alone may order quarantines and isolations of individuals or groups or closures of places, “to prevent the probable spread of a dangerously contagious or infectious disease.” 20 ILCS 2305/2(b).
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Defendant Pritzker thus lacks authority under the IEMA Act to impose a quarantine or isolation on Illinois residents, or to order shutdowns of Illinois churches. And at the very least, if he argues an ability to commandeer IDPH to execute his orders, then he must provide the due process rights enshrined in the IDPH Act and its enabling rules before quarantining Plaintiffs and closing the Church.
B. Likelihood of Irreparable Harm to Plaintiffs. To meet the second criterion for preliminary relief, Plaintiffs must show a substantial likelihood that irreparable harm will occur if injunctive relief is not granted. The danger of irreparable injury to Plaintiffs resulting from Defendants’ construction and application of the Executive Orders here is actual and immediate. Indeed, Plaintiffs have had all their in-person religious services and ministries shut down. It is well established that “[t]he loss of First Amendment freedoms for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Plaintiffs therefore satisfy the second criterion for injunctive relief. C. Balance of Harms if the Requested Relief is Granted. Upon a finding of irreparable harm to Plaintiffs, the next step is to balance the likelihood of irreparable harm to Plaintiffs from failure to grant interim relief against the likelihood of harm to Defendants from the grant of such relief. In this case, the likelihood of harm to Plaintiffs greatly exceeds any potential for harm to Defendants. Plaintiffs have suffered irreparable harm to their fundamental constitutional rights. By contrast, Defendants will incur no real harm to any legitimate government interest, as noted above. Plaintiffs are perfectly willing to abide by all applicable (and constitutional) guidance in holding their services and religious gatherings. But Plaintiffs should not be penalized for a hostile government’s refusal to issue such guidance, and
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any burden or fault for lack of guidance for religious activities must fall squarely on Defendants. Thus, the “balance of hardships” tips decidedly in favor of Plaintiffs. Joelner, supra, 378 F.3d at 620 (“there can be no irreparable harm to [a governmental actor] when it is prevented from enforcing an unconstitutional [law]”).
D. The Public Interest is Furthered by Entry of an Injunction. Given the irreparable injury to Plaintiffs, the lack of any harm to Defendants’ legitimate interests, and the critical nature of the First Amendment rights at issue, the public interest is best served by issuance of a preliminary injunction. “[I]njunctions protecting First Amendment freedoms are always in the public interest.” Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir.2006); accord Ingebretsen ex rel. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir.1996) (where law violates the First Amendment “the public interest was not disserved by an injunction preventing its implementation”). Plaintiffs therefore satisfy the public interest prong as well.
CONCLUSION Accordingly, the Court should grant Plaintiffs’ motion, enjoin Defendants applying EOs 2020-10 and 2020-18, and the announced upcoming executive order, against Plaintiffs’ church services and religious gatherings and ministries, and grant such other and further relief to which Plaintiffs are entitled.
Respectfully submitted, /s/ Martin Whittaker Peter Breen Thomas Brejcha Martin Whittaker THE THOMAS MORE SOCIETY 309 West Washington, Suite 1250 Chicago IL 60606
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Case: 3:20-cv-50153 Document #: 7 Filed: 04/30/20 Page 17 of 18 PageID #:109 312-782-1680 pbreen@thomasmoresociety.org tbrejcha@thomasmoresociety.org mwhittaker@thomasmoresociety.org Attorneys for Plaintiffs
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Case: 3:20-cv-50153 Document #: 7 Filed: 04/30/20 Page 18 of 18 PageID #:110 CERTIFICATE OF SERVICE
I hereby certify that I have this day served, via email, copies of the foregoing on the defendants, this 30th day of April, 2020, addressed as follows: Benjamin M. Jacobi bjacobi@okgc.com Attorney for Defendants Snyders and Beintema sschaible@yahoo.com Defendant Steve Schaible Sarah Hunger Deputy Solicitor General, office of the Illinois Attorney General Shunger@atg.state.il.us Attorney for Defendant Pritzker
/s/Martin Whittaker
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 Case: 3:20-cv-50153 Document #: 26 Filed: 05/01/20 Page 1 of 37 PageID #:158

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE BELOVED CHURCH, an Illinois notfor-profit corporation, and PASTOR STEPHEN CASSELL, an individual,

No. 20-C-50153

Honorable SPtleavinentifCfs.,Seeger v.

Honorable John Z. Lee

GOVERNOR JB PRITZKER, et al., Defendants.

THE GOVERNOR’S OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

Dated: May 1, 2020

KWAME RAOUL Attorney General of Illinois
Christopher G. Wells R. Douglas Rees Sarah H. Newman Kelly C. Bauer Hal Dworkin Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 LEGAL STANDARD..................................................................................................................... 5 ARGUMENT .................................................................................................................................. 8
I. Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims. ................................. 8 A. The Current Executive Order is a Constitutional Exercise of the Governor’s Emergency Powers to Combat the COVID-19 Pandemic. ............................................. 8 B. Plaintiffs’ Free Exercise Claims Fail. ........................................................................... 15 1. The Current Executive Order Is a Valid Content Neutral Law of General Applicability. ........................................................................................................... 15 2. The Current Executive Order is not Unduly Burdensome on Plaintiffs’ Religious Practices. ................................................................................................................. 21 3. The Current Executive Order Satisfies Strict Scrutiny. .......................................... 22 C. The Current Executive Order Is a Reasonable Time, Place, and Manner Restriction that Does Not Violate the First Amendment........................................................................ 23 D. All State Law Claims Against the Governor in His Official Capacity Are Barred by Eleventh Amendment Sovereign Immunity.................................................................. 26
II. Plaintiffs Have Not Demonstrated Irreparable Harm to Warrant a TRO or Preliminary Injunction. ..................................................................................................................... 29
III. The Harm to the State and the Public From a TRO Substantially Outweighs Any Interim Harm to Plaintiffs Absent a TRO..................................................................... 30
CONCLUSION............................................................................................................................. 34

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INTRODUCTION Plaintiffs filed their complaint and request for an emergency temporary restraining order (“TRO”) based on a premise that is now moot. Their request for a TRO should be denied on that basis alone. Plaintiffs accused Governor JB Pritzker of violating their First Amendment rights, including, primarily, their right to free exercise of religion, by issuing two executive orders, Executive Order 2020-10 and Executive Order 2020-18, referred to publicly and interchangeably as the “stay at home” order. Those orders restricted non-essential activities and travel by members of the public in an effort to combat the COVID-19 pandemic. Plaintiffs assailed the Governor and those orders as “intentionally denigrat[ing] Illinois churches and pastors and people of faith by relegating them to second-class citizenship.” (Compl. ¶ 10.) The alleged basis for Plaintiffs’ allegation of religious discrimination was that “[i]n many states, these [analogous] stay-at-home orders protected the constitutional rights of churches and religious believers during the coronavirus epidemic, but not so in the Land of Lincoln.” (Id. ¶ 2.) Plaintiffs specifically faulted the prior executive orders for failing to deem “churches and church ministries” to be “essential,” while simultaneously “declar[ing] a laundry list of businesses to be ‘essential,’ from liquor stores to lawyers to landscapers.” (Id. ¶¶ 3, 11.) As of April 30, 2020, however, the executive orders Plaintiffs have attacked are no longer in effect. There is a new “stay at home” order, Executive Order 2020-32 (“Current Executive Order,” attached hereto as Exhibit A). The Current Executive Order expressly declares the free exercise of religion to be an essential activity by permitting Illinois residents to leave their homes to do the following: To engage in the free exercise of religion. To engage in the free exercise of religion, provided that such exercise must comply with Social Distancing Requirements and the limit on gatherings of more than ten people in keeping with CDC guidelines for the protection of public health. Religious organizations and
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houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregants. (Ex. A ¶ 5(f).) In other words, the alleged concern that motivated Plaintiffs to bring their complaint—the silence of the prior “stay at home” orders to deem religious activity to be “essential”—is now gone. The Court should therefore deny Plaintiffs request for a TRO because it is moot. But even aside from mootness, Plaintiffs demand for a TRO was and continues to be unwarranted. Neither the prior “stay at home” orders nor the Current Executive Order violated the First Amendment, or any other constitutional provision, as applied to Plaintiffs. The purpose of these orders is to protect the public from the devastating spread of the COVID-19 pandemic. (Compl. ¶ 1.) Plaintiffs do not and cannot dispute that this is a governmental interest of the greatest magnitude (ECF No. 7 at 8), and that the COVID-19 pandemic constitutes an ongoing emergency in Illinois. (Compl. ¶ 1, 59.) Under these emergency circumstances, the sole question this Court must answer is whether the Governor acted reasonably and in good faith in implementing the restrictions reflected in the prior “stay at home” orders and the Current Executive Order. In re Abbott, 954 F.3d 772, 787 (5th Cir. 2020); Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996), ), abrogated on other grounds by Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998); United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971); see also Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905); Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of La., 186 U.S. 380 (1902). He did. Plaintiffs therefore have no reasonable likelihood of success on the merits of their claims and their request for an emergency TRO must fail. In addition to failing under the deferential standard afforded to emergency public health and safety measures taken by an executive officer, Plaintiffs’ claims fail under First Amendment
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analysis. The prior “stay at home” orders and the Current Executive Order are facially neutral laws of general applicability that do not offend the Free Exercise Clause of the First Amendment. See Emp’t Div. v. Smith, 494 U.S. 872 (1990). There is no plausible allegation that the Governor issued these orders for any reason other than to protect the public’s health and safety. As Plaintiffs concede, the Governor’s orders substantially align with numerous analogous “stay at home” orders issued by governors across this nation to combat this public health emergency. (Compl. ¶ 1.) While Plaintiffs initially complained that the prior “stay at home” orders did not contain a religious exemption, Supreme Court precedent holds that no such exemption is required in a facially neutral law of general applicability. Smith, 494 U.S. 872.
Plaintiffs have further alleged, however, that the absence of an exemption in the prior “stay at home” orders evinced an “illegal and discriminatory to hostility to religious practice, churches, and people of faith,” given the multiple exemptions for other categories of activity. (Compl. ¶¶ 3, 10.) But Plaintiffs have fallen far short of pleading plausible facts and presenting a reasonable likelihood of success that the Governor’s orders, while facially neutral and generally applicable to religious and non-religious gatherings alike, have been motivated by hostility toward their religion. Cf. Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993); Masterpiece Cakeshop, LLC v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). The Current Executive Order, which expressly designates free exercise of religion as an essential activity, eviscerates Plaintiffs’ ability to even insinuate that impermissible religious bias motivates the Governor’s actions. Plaintiffs’ attempt to invoke the strict scrutiny standard applicable to
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religious animus claims therefore fails.1 The Current Executive Order does not impermissibly infringe Plaintiffs’ First Amendment right to free exercise of religion.
Plaintiffs’ Free Speech and Assembly Clause claims also have no reasonable likelihood of success, because the prior “stay at home” orders and Current Executive Order constitute reasonable time, place, and manner restrictions. Indeed, Plaintiffs have been engaging in online worship during the COVID-19 pandemic and may continue to do so. Under the Current Executive Order, it is clear that they may also conduct drive-in church services and in-person services of fewer than 10 people (including having multiple such services throughout the day) that follow social distancing requirements. Federal courts around the country have upheld similar approaches to religious services in the context of this pandemic. See, e.g., Gish v. Newsom, No. EDCV 20-755, 2020 WL 1979970 at *5 (C.D. Cal. April 23, 2020) (denying temporary restraining order application in Free Exercise Clause challenge to the California Executive Order because it is “likely a permissible exercise of executive authority during a national emergency”); Legacy Church, Inc. v. Kunkel, -- F. Supp. 3d --, No. CIV 20-0327, 2020 WL 1905586 (D.N.M. Apr. 17, 2020) (same, for New Mexico’s COVID-19 related executive orders); Maryville Baptist Church, Inc. v. Beshear, -- F. Supp. 3d --, No. 3:20 cv-278, 2020 WL 1909616 (W.D. Ky. Apr. 18, 2020). This Court should do the same and reject Plaintiffs’ TRO motion.
Plaintiffs’ state law claims fare no better. In addition to suffering the same flaws under constitutional free exercise and free speech analysis, Plaintiffs also ask this federal court to do something it may not do: compel state officials to follow state law. Pennhurst State Sch. & Hosp.
1 Even if the Court were to apply intermediate or strict scrutiny, the “stay at home” orders are narrowly tailored to a compelling governmental interest—combating the COVID-19 pandemic and protecting the public’s health and safety. Given the respiratory transmission of the virus among persons in close contact with one another, there is no safe way to permit gatherings in excess of 10 people in the manner Plaintiffs demand.
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v. Halderman, 465 U.S. 89, 97 (1984). Plaintiffs’ state law claims are therefore barred by the doctrine of sovereign immunity embodied in the Eleventh Amendment.
Even if the legal defects in Plaintiffs’ pleadings were not dispositive (they are), Plaintiffs have shown no harm justifying an emergency TRO and the balance of harms tips decidedly against them. Plaintiffs have conducted their worship services online and in a manner consistent with the prior “stay at home” orders for the past several weeks. They offer no compelling reason why the Court should allow them to convene possibly hundreds of people this Sunday, May 3, 2020.
On the other hand, the harm from permitting Plaintiffs to flout the 10-person limitation on gatherings is likely to be substantial. In Albany, Georgia, for example, a single funeral gathering of 200 people is the source of one of the worst per capita COVID-19 outbreaks in the world—resulting in dozens of deaths in a matter of weeks.2 The threat of that type of cascading, exponentially increasing harm is why public health guidance does not and cannot permit Plaintiffs to convene a gathering of more than 10 people this Sunday. With the good faith compliance of Plaintiffs and all residents of Illinois, however, there will hopefully soon come a day when Plaintiffs can come together with their fellow congregants to worship and celebrate the passing of this plague. We all long for that day. But Plaintiffs’ request for injunctive relief, which would put them and their neighbors in harm’s way, should be denied.
LEGAL STANDARD The standards for deciding whether a temporary restraining order is appropriate are “analogous to the standards applicable when determining whether preliminary injunctive relief is
2 Ellen Barry, N.Y. Times, “Days After a Funeral in a Georgia Town, Coronavirus ‘Hit Like a Bomb’,” (March 30, 2020), available at https://www.nytimes.com/2020/03/30/us/coronavirus-funeral-albany-georgia.html (last visited May 1, 2020).
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appropriate.” YourNetDating, Inc. v. Mitchell, 88 F.Supp.2d 870, 871 (N.D. Ill. 2000). Injunctive relief is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original); see also Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998) (same); see also Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 389 (7th Cir. 1984).
To obtain a preliminary injunction or TRO, a plaintiff must establish that: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008); Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010). The court “must balance the competing claims of injury and must consider the effect on each party of granting or withholding the requested relief,” paying “particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24.
Here, Plaintiffs’ burden is even greater than usual because, the interim injunction they request in their present motion would give them substantially all the relief they seek through this lawsuit. See, e.g., Boucher, 134 F.3d at 827 n. 6 (“A preliminary injunction that would give the movant substantially all the relief he seeks is disfavored, and courts have imposed a higher burden on a movant in such cases.”); W.A. Mack, 260 F.2d at 890 (“A preliminary injunction does not issue which gives to a plaintiff the actual advantage which would be obtained in a final decree.”).
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits.” Winter, 555 U.S. at 20. To meet their initial burden, Plaintiffs must show that they
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have a “better than negligible” chance of success on the merits. Roland Mach. Co., 749 F.2d at 387. Where it is more likely than not that a defendant will prevail, injunctive relief is improper, particularly where the balance of harms tips decidedly in favor of the defendant. See Boucher, 134 F.3d at 826-27, 829 (vacating preliminary injunction as to expelled high school student). Even if a plaintiff makes the required showing, the court must determine how likely it is that the plaintiff actually will succeed: “The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Roland Mach. Co., 749 F.2d at 387. Moreover, when there are “two equally credible versions of the facts the court should be highly cautious in granting an injunction without the benefit of a full trial.” Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1440 (7th Cir. 1986) (citation omitted).
In the context of an emergency, courts typically apply a more deferential standard to executive actions than it would to government regulations enacted in the ordinary course. Courts recognize that “[t]he invocation of emergency powers necessarily restricts activities that would normally be constitutionally protected,” United States v. Chalk, 441 F.2d 1277, 1280 (4th Cir. 1971), and as a result, that “fundamental rights such as the right of travel and free speech may be temporarily limited or suspended,” Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996), abrogated on other grounds by Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ; see also In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020) (“[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”); United States v. Salerno, 481 U.S. 739, 748 (1987) (“We have repeatedly held that the
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Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest.”); Zemel v. Rusk, 381 U.S. 1, 15-16 (1965) (the right to travel “does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area or the Nation as a whole”).
ARGUMENT Plaintiffs’ request for a TRO fails because they are unlikely to succeed on the merits of their claims. Neither the prior “stay at home” orders nor the Current Executive Order impermissibly restricts their First Amendment or other constitutional rights. Plaintiffs have also not shown that they will suffer irreparable harm in the absence of TRO, and the balance of harms tips decidedly against them in light of the threat to public safety presented by the COVID-19 pandemic. I. Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims. Plaintiffs’ claims fail as a matter of law and do not justify a TRO because the Governor’s actions do not unconstitutionally infringe the First Amendment or other of Plaintiffs’ rights. In addition, Plaintiffs’ state law claims fail because of Eleventh Amendment sovereign immunity. A. The Current Executive Order is a Constitutional Exercise of the Governor’s
Emergency Powers to Combat the COVID-19 Pandemic. Illinois, along with the rest of the world, is in the throes of an unprecedented public health crisis that has brought normal life to a halt. In response, the Governor, along with numerous other state and national officials, has proclaimed a disaster and invoked emergency powers to issue multiple executive orders to protect the health and safety of all Illinois citizens. In an extraordinary public health crisis such as this, the Governor has broad emergency powers that he may exercise to protect public health, and courts must afford deference to temporary
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actions taken to curb the spread of a dangerous disease and mitigate its effects. Plaintiffs have not shown that the prior “stay at home” or Current Executive Order impermissibly infringes their constitutional rights.
The Supreme Court has long recognized that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905) (internal quotation marks omitted); see also Kansas v. Hendricks, 521 U.S. 346, 356 (1997) (recognizing the continuing vitality of Jacobson). In that regard, the Court has permitted states to enact “quarantine laws and health laws of every description,” Jacobson, 197 U.S. at 27, similar to the Current Executive Order’s measures to combat the COVID-19 pandemic. See, e.g., Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of La., 186 U.S. 380 (1902) (upholding quarantine law against constitutional challenges); see also Benson v. Walker, 274 F. 622 (4th Cir. 1921) (upholding board of health resolution that prevented carnivals and circuses from entering a certain county in response to the 1918-1919 influenza epidemic); Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) (upholding quarantine of a nurse returning from treating Ebola patients in Sierra Leone).
The exercise of these emergency powers “necessarily restricts activities that would normally be constitutionally protected,” and “[a]ctions which citizens are normally free to engage in [have] become subject to criminal penalty.” Chalk, 441 F.2d at 1281. But “measures [that] would be constitutionally intolerable in ordinary times [] are recognized as appropriate and even necessary responses to the present [COVID-19 pandemic] crisis.” Abbott, 954 F.3d at 787. Although the Constitution is not suspended during a state of emergency, the Supreme Court has recognized that “under the pressure of great dangers,” constitutional rights may be reasonably restricted “as the safety of the general public may demand.” Jacobson, 197 U.S. at 29; see also
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Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (“The right to practice religion freely does not include liberty to expose the community . . . to communicable disease.”). This “settled rule” allows states facing emergencies to “restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.” Abbott, 954 F.3d at 778 (emphasis added).
Thus, an executive facing an emergency can temporarily restrict First Amendment protections because “although the rights of free speech and assembly are fundamental, they are not in their nature absolute.” Whitney v. California, 274 U.S. 357, 373 (Brandeis, J., concurring); see also Int’l Soc. for Krishna Consciousness v. Rochford, 585 F.2d 263, 271 (7th Cir. 1978) (upholding an “emergency closure provision” for airports, noting that “[a]lthough First Amendment freedoms are precious and must be jealously guarded, they may be subject to restriction if necessary to further important governmental interests” such as “[p]ublic safety and welfare”); In re Brooks’ Estate, 32 Ill. 2d 361, 369-70 (1965) (explaining that unlike the freedom to believe, the freedom to act under the First Amendment is not “absolute”); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 625 (1952) (“But neither rights of religion or rights of parenthood are beyond limitation.”).
The exercise of First Amendment rights “is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral.’” Whitney, 274 U.S. at 373 (Brandeis, J., concurring); see ACLU of W. Tennessee, Inc. v. Chandler, 458 F. Supp. 456, 460 (W.D. Tenn. 1978) (“The ordinance at issue here permits a limitation on the exercise of [First Amendment] rights only in very unusual circumstances where extreme action is necessary to protect the public from immediate and grave danger.”); In re Brooks’ Estate, 32 Ill. 2d at 372 (free exercise “may
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properly be limited by governmental action where such exercise endangers, clearly and presently, the public health, welfare or morals”).
To combat a virulently infectious disease in an emergency pandemic, the State must be able to take swift and decisive action. Cf. Chalk, 441 F.2d at 1281. The court’s review of temporary measures during such an emergency is therefore “limited to a determination of whether the [executive’s] actions were taken in good faith and whether there is some factual basis for [the Governor’s] decision that the restrictions he imposed were necessary to maintain order.” Id.; see also Jacobson, 197 U.S. at 29 (“reasonable regulations” may be implemented in the face of an infectious disease epidemic); Abbott, 954 F.3d 772 (applying a deferential standard to an executive order restricting otherwise constitutionally protected abortion access in the face of the COVID-19 crisis). This deferential standard recognizes that, in a public health crisis, “it is no part of the function of a court . . . to determine which one of two modes was likely to be the most effective for the protection of the public against disease,” Jacobson, 197 U.S. at 30, and that “governing authorities must be granted the proper deference and wide latitude necessary for dealing with . . . emergenc[ies].” Smith, 91 F.3d at 109.
The Current Executive Order and the resulting temporary restrictions placed on all gatherings, including religious ones, easily satisfy the standards governing emergency measures taken to combat a public health emergency. The Governor issued the Current Executive Order and related directives in good-faith response to the imminent and deadly threat the COVID-19 pandemic poses. To date, the disease has infected over one million people and caused over 60,000 deaths in the United States.3 Here in Illinois, which fortunately took measures early on to prevent the spread of COVID-19, more than 56,000 people have been infected and over 2,450
3See Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited April 30, 2020).
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have died.4 Medical experts have estimated that, in the worst case scenario, millions of Americans would die if governments were to do nothing to prevent the spread of COVID-19.5 The virulently infectious nature of this disease, combined with the ability of asymptomatic individuals to unknowingly spread the virus and the absence of any vaccination or widely effective treatment, has limited the options for combatting the disease and—as similar measures by other state, local, and national officials demonstrate—made the orders’ “stay at home” strategy crucial to slowing the spread of the virus.
The temporary prohibition against public gatherings of more than 10 is an indispensable part of this strategy. Large public gatherings generally have fueled the spread of COVID-19, including through in-person religious services. In addition to being stationary in close quarters for extended periods during such services, congregants often are speaking aloud and singing, which increases the danger that infected individuals will project respiratory droplets that contain the virus and may infect others. It should come as no surprise then that there already are a number of identified instances in which dozens of infections have been traced back to religious services, including the following:
 In South Korea, as of March 25, 2020, at least 5,080 confirmed cases of COVID-19— over half of South Korea’s confirmed cases—have been traced back to one individual who attended a religious service at the Shincheonji Church of Jesus in Daegu.6
 Near Seattle, following a gathering for a church choir on March 10, 2020, at least forty-five individuals were diagnosed with COVID-19 and at least two died. This spread occurred even though, according to news reports, hand sanitizer was offered to the choir members at the rehearsals, the members attempted to refrain from physical
4 See COVID-19 Statistics, https://www.dph.illinois.gov/covid19/covid19-statistics (last visited April 30, 2020). 5 See Sheri Fink, “Worst-Case Estimates for U.S. Coronavirus Deaths” New York Times (March 13, 2020), available online at https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html (last accessed April 28, 2020. 6 See Youjin Shin, Bonnie Berkowitz, Min Joo-Kim, “How a South Korean church helped fuel the spread of the coronarvirus,” Washington Post (March 25, 2020), available online at https://www.washingtonpost.com/graphics/2020/world/coronavirus-south-korea-church/ (last visited April 30, 2020).
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contact with one another, and the members tried to maintain physical distance between one another.7  And here in Illinois, after Life Church held a service on March 15, 2020, more than half of the 80 people in attendance became ill with COVID-19 symptoms, ten people had tested positive for COVID-19, and one person died.8 The clear and manifest need for the Current Executive Order’s temporary restriction on in-person gatherings refutes any suggestion that the Governor exceeded the scope of his emergency powers by acting in bad faith or without any factual basis. Courts across the country have denied requests for preliminary injunctive relief in constitutional challenges to emergency COVID-19-related measures. See, e.g., Gish v. Newsom, No. EDCV 20-755, 2020 WL 1979970 at *5 (C.D. Cal. April 23, 2020) (denying temporary restraining order application in Free Exercise Clause challenge to the California executive order because it is “likely a permissible exercise of executive authority during a national emergency”); Abiding Place Ministries v. Wooten, No. 3:20-cv-00683 (S.D. Cal. Apr. 10, 2020) (denying temporary restraining order application in Free Exercise Clause challenge to San Diego County’s COVID-19-related order); Legacy Church, Inc. v. Kunkel, -- F. Supp. 3d --, No. CIV 20-0327, 2020 WL 1905586 (D.N.M. Apr. 17, 2020) (same, for New Mexico’s COVID-19related executive orders); Maryville Baptist Church, Inc. v. Beshear, -- F. Supp. 3d --, No. 3:20cv-278, 2020 WL 1909616 (W.D. Ky. Apr. 18, 2020) (same, Kentucky); Davis v. Berke, No. 1:20-CV-98, 2020 WL 1970712 (E.D. Tenn. Apr. 17, 2020) (same, Chattanooga, Tennessee); Nigen v. New York, No. 1:20-cv-01576 (E.D.N.Y. Mar. 29, 2020) (same, New York); Tolle v. Northam, No. 1:20-cv-00363 (E.D. Va.
7 See Richard Read, “A choir decided to go ahead with rehearsal. Now dozens have COVID-19 and two are dead,” Los Angeles Times (March 29, 2020), https://www.latimes.com/world-nation/story/2020-03-29/coronavirus-choiroutbreak . 8 See Anna Kim, “Glenview church hit by COVID-19 is now streaming service online, as pastor remembers usher who died of disease,” Chicago Tribune (March 31, 2020) https://www.chicagotribune.com/suburbs/glenview/ct-glalife-church-coronavirus-virtual-service-tl-0402-20200331-s4twslv2ynhk3padh7sjrxy3wi-story.html (last visited April 30, 2020).
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Apr. 1, 2020) (same, Virginia); Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Sup. Ct. March 25, 2020) (same, New Hampshire).
For example, last week, a federal district court in California denied a temporary restraining order application in a Free Exercise Clause challenge to the same kind of executive order at issue here. Gish, 2020 WL 1979970 at *5. Citing Jacobson and a recent Fifth Circuit opinion applying that decision, the Court observed that during a public emergency such as the COVID-19 pandemic, “traditional constitutional scrutiny does not apply” and “states and municipalities have greater leeway to burden constitutionally protected rights.” Id. at *4 (citing Abbott, 954 F.3d at 784-85; Jacobson, 197 U.S. at 31). Applying the deferential standard for emergencies, the Court in Gish found that the state’s executive order has a substantial relation to combatting the COVID-19 pandemic because it “require[s] the physical distancing that is needed to slow the spread of the virus.” Id. It also rejected the assertion that the Order was a “plain or palpable invasion of the general right to free exercise of religion” because “a wide swath of religious expression remains untouched by the Order[].” Id. at *5. Although large in-person gatherings are not permitted, the Court explained, congregants are free to “gather virtually or over the phone,” “gather in-person with the members of their household,” and “practice their religion in whatever way they see fit so long as they remain within the confines of their own homes.” Id.; see also id. at*5-6 (no violation under traditional constitutional analysis).
In sum, even fundamental religious rights do not include the “liberty to expose the community . . . to communicable disease,” Prince, 321 U.S. at 166-67, especially one as contagious and deadly as COVID-19. The Governor’s decision to temporarily restrict one aspect of those rights—the ability to conduct large in-person worship services—falls well within the scope of the Governor’s emergency authority to combat the current public health crisis.
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B. Plaintiffs’ Free Exercise Claims Fail. As mentioned above, even if Plaintiffs’ claims are analyzed under the standard of review applied in non-emergency circumstances, Plaintiffs have failed to show a likelihood of success. The Current Executive Order is a valid content neutral law of general applicability and therefore does not violate Plaintiffs’ right to free exercise.
1. The Current Executive Order Is a Valid Content Neutral Law of General Applicability.
Free exercise claims are governed by the Supreme Court’s decision in Emp’t Div. v. Smith, 494 U.S. 872 (1990). In Smith, the Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id. at 879 (citations omitted). In other words, “a neutral law of general applicability is constitutional if it is supported by a rational basis.” Ill. Bible Colleges Assoc. v. Anderson, 870 F.3d 631, 639 (7th Cir. 2017). This is true even where a law has “the incidental effect of burdening a religious practice.” St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 631 (7th Cir. 2007).
To determine whether a law is neutral, courts first “examine the object of the law.” Id. “A law is not neutral if ‘the object of the law is to infringe upon or restrict practices because of their religious motivation.’” Id. (quoting Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993)). Courts must also assess the “general applicability” of a law, which “forbids the government from imposing burdens only on conduct motivated by religious belief in a “selective manner.” Id.
In the Seventh Circuit (unlike in other jurisdictions), courts are further instructed to review the law’s burden on religious institutions because “[a] regulation neutral on its face may,
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in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.” Vision Church v. Vill. of Long Grove, 468 F.3d 975, 996 (7th Cir. 2006) (cleaned up); see also Listecki v. Official Committee of Unsecured Creditors, 780 F.3d 731, 744 (7th Cir. 2015).
In short, if a law is not neutral or generally applicable, or if the law unduly burdens the free exercise of religion, the law is not subject to rational basis review and instead “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Vision Church, 468 F.3d at 996 (internal quotations omitted); accord Gish, 2020 WL 1979970 at *5 (“Because the orders apply to both religious and secular gatherings, they do not discriminate, and are therefore facially neutral.”).
The Current Executive Order is neutral and generally applicable because it applies broadly to prohibit public gatherings of more than 10, both religious and secular. (Ex. A, at 4-5. Consistent with public health guidance, the Current Executive Order prohibits any gathering of more than 10 people unless a specified exemption applies. The Current Executive Order gives specific examples of secular activities which are prohibited, including but not limited to museums, arcades, playgrounds, theme parks, bowling alleys, movies and other theaters, concert and music halls, and country clubs. (Ex. A, at 5).
Plaintiffs argue that the Governor’s past stay-at-home orders demonstrated “hostility” towards religion because they did not include a carve out for religious activity in any form, including drive-in religious services. (Compl. ¶ 45). However, as Plaintiffs are now aware, the Current Executive Order (which was released after Plaintiffs filed their Complaint) does include a carve-out for people to engage in the free exercise of religion so long as they comply with the other neutral social distancing requirements and the limit on gatherings of more than ten people.
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(Ex. A, at 5-6). Indeed, the Current Executive Order explicitly permits drive-in religious services as a way to protect the health and safety of congregants. (Ex. A, at 6). Thus, an accommodation that Plaintiffs impliedly admit would be sufficient for them to safely engage in a spiritual gathering is permitted by the Current Executive Order.
Plaintiffs also argue that the Governor’s past stay-at-home orders are not generally applicable due to their carve-outs for “essential businesses.” Plaintiffs argue that these carve-outs for grocery, hardware, and liquor stores, as well as a snack food manufacturing plant are “at best arbitrary.” (ECF No. 7, at 12) (emphasis in original). This argument is specious. Stores like Menards and Walmart are essential because, even in a pandemic, the day-to-day infrastructural needs of a society require people be able to purchase food to eat, supplies to maintain their residences, and pharmaceuticals to stay healthy. C.f. Legacy Church, Inc., 2020 WL 1905586 at *40 (“Each and every business mentioned by Legacy Church either sells items necessary for everyday life or to facilitate the mitigation of COVID-19.”).
Moreover, as the Western District of Kentucky pointed out, the logistics of attending a church service and shopping at a grocery or retail store are fundamentally different. “The latter is a singular and transitory experience: individuals enter the store at various times to purchase various items; they move around the store individually — subject to strict social-distancing guidelines set out by state and federal health authorities — and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose.” Maryville Baptist Church, Inc., 2020 WL 1909616 at * 2.
Comparing church services to grocery stores and hardware stores is not the proper analogy. “A more apt comparison, then, is a restaurant or entertainment venue — where patrons
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are gathered simultaneously for a longer period of time to eat and socialize — or a movie, concert, or sporting event, where individuals come together in a group in the same place at the same time for a common experience.” Id. And many of these types of gatherings—such as eating in a restaurant, going to a movie theater, attending a sporting event—are banned entirely, whereas religious gatherings of fewer than 10 people are permitted under the Current Executive Order.
To the extent that religious activity has been curtailed, this restriction has applied evenly to all religions, not just the evangelical Christianity that Plaintiffs practice, meaning there is not effectively a “religious gerrymander.”9 C.f. Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 535 (1993). Indeed, contrary to Plaintiff’s arguments, this matter is easily distinguished from Lukumi. There, the Supreme Court overturned the City of Hialeah’s ordinance prohibiting the ritualistic sacrifice of animals. Id. at 521. Initially, the ordinance appeared to be facially neutral, broadly punishing whoever unnecessarily kills any animal. Id. at 537. However, the application of the ordinance revealed a lack of neutrality, showing that the ordinance was specifically targeted towards individuals who practiced the religion Santeria. “Killings for religious reasons are deemed unnecessary, whereas most other killings fall outside the prohibition.” Id. (noting that the city deemed hunting, killing animals for food, eradication of insects and pests, and euthanasia as necessary). Accordingly, the ordinance effectively singled out one religious practice, which subjected the law to heightened scrutiny. Id.
Here, in contrast, in-person religious services are not being singled out for separate treatment. They are one of many types of public gatherings of which a restriction of no more
9 Plaintiffs point out that the Governor’s stay-at-home order impacted the Christian holy day of Easter. The stay-athome order also has impacted important holidays of other religions as well, namely the Jewish holiday of Passover (observed April 8, 2020 through April 16, 2020) and the Muslim holy month of Ramadan (observed April 23, 2020 through May 23, 2020).
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than ten people is in place. The Current Executive Order is neutral and generally applicable. Moreover, by allowing drive-in services, the Current Executive Order explicitly grants benefits to religious services that are not allowed to secular activities.
Plaintiff’s complaint cites two recent cases in support of the proposition that the Governor’s stay-at-home order is not neutral and generally applicable and thus subject to heightened scrutiny.10 Both, however, are distinguishable. The earlier case, On Fire Christian Center v. Fischer, No. 3:20-CV-264-JRW (W.D.KY Apr. 11, 2020), focused primarily on Kentucky’s prohibition of drive-in services for Easter in granting the plaintiff’s request for a TRO. Here, as previously discussed, the Current Executive Order explicitly allows for drive-in church services to occur. The District Court of New Mexico found New Mexico’s permitting of drive-in services to be a meaningful distinction from Kentucky’s ban on drive-in services in applying rational basis for New Mexico’s stay-at-home order and denying Plaintiff’s request for a TRO in Legacy Church, Inc., 2020 WL 1905586 at *35.
Plaintiff’s other cited case, First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020), is also distinguishable. There, Kansas’s stay-at-home order explicitly included church services in groups of people greater than ten people in its list of prohibited activities. Id. at *7. Here, religious services are not listed in the group of prohibited activities in the Current Executive Order. Instead, gatherings for the free exercise of religion are carved out from the general prohibition on social gatherings so as to permit them, so long as the gathering can otherwise abide by social distancing guidelines and is limited to ten people. (Ex.
10 Technically, the complaint only cites one case, from the District of Kansas, in support of this argument. But instead of attaching this case as an exhibit, as the complaint purports to do, Plaintiffs attached a different case from the Western District of Kentucky. Both cases are addressed herein.
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A, at 5-6.) Additionally, as previously discussed, Executive Order 2020-32 permits drive-in services, an issue which the court in First Baptist was silent on.
Respectfully, the court in First Baptist also misapplied Lukumi. The reason why the ordinance in Lukumi was not neutral was not merely because it contained some exceptions for the non-religious and other religious slaughtering of animals. The ordinance’s problem was that it contained so many exceptions that it became apparent that Santeria’s ritualistic sacrifice of animals was the only practice which was effectively prohibited and was thus singled out. Lukumi 508 U.S. at 537. The Supreme Court concluded that “each of Hialeah's ordinances pursues the city's governmental interests only against conduct motivated by religious belief.” Id. at 545. Here, the Current Executive Order clearly does not pursue the State’s interest only against conduct motivated by religious belief, as discussed previously large swaths of secular gatherings are similarly prohibited.
First Baptist appears to be an outlier case. Other district courts evaluating stay-at-home orders in the context of free-exercise challenges have found that the orders are neutral and generally applicable. See, e.g., Gish, 2020 WL 1979970 at *5; Mary Baptist Church, Inc., 2020 WL 1909616 at * 2; Legacy Church, Inc., 2020 WL 1905586 at *35. Accordingly, the courts in these cases applied rational basis to the stay-at-home orders and denied the TROs requested in those cases. This Court should follow the Central District of California, the District of New Mexico, and the Western District of Kentucky and apply rational basis scrutiny to the Current Executive Order.
The Current Executive Order easily passes rational basis. The world is currently in the grip of a global pandemic. Illinois in particular has had a high number of cases of COVID-19. Stopping the spread of the disease is obviously a legitimate governmental interest. Indeed, it is
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indisputably a compelling interest “of the highest order.” On Fire, 2020 WL 1820249 at *7. As CDC guidelines demonstrate, prohibiting mass gatherings furthers that legitimate interest.
2. The Current Executive Order is not Unduly Burdensome on Plaintiffs’ Religious Practices.
The Current Executive Order is not unduly burdensome on Plaintiffs’ religious practices. Plaintiffs did not argue that the any of the “stay at home” orders are unduly burdensome for the purposes of the Free Exercise Clause and thus have waived this argument. But even if Plaintiffs had not waived this argument, they would not be able to show that the Current Executive Order is unduly burdensome.
Illinois, along with the rest of the world, is in the throes of an unprecedented public health crisis that has brought normal life to a halt. Public gatherings, both religious and secular, are prohibited by the Current Executive Order. While this does place some burden on religious activity, this is not an undue burden. Plaintiffs have ample alternative means with which to conduct religious services. Plaintiffs announced in March they would be conducting services via Facebook and Beloved Church has been consistently broadcasting religious “teachings,” “healings,” and bible study podcasts on the sermon.net downloadable application since 2012. These are two options Plaintiffs have to conduct religious ceremonies online. The Current Executive Order also explicitly permits religious services through drive-in services and in gatherings of ten or less people so long as they abide by social distancing guidelines—which could include multiple services throughout the day.
As previously discussed, there have already been a number of identified instances in which dozens of infections have been traced back to religious services. See supra at 11. Allowing gatherings of greater than 10 people for any purpose significantly increases the risk of further spread of COVID-19. The Current Executive Order allows for Plaintiffs to practice
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religious services in several manners which do not have as high a risk of spreading the virus as in-person gatherings of more than ten people. Whatever burden the Current Executive Order places on Plaintiffs is not undue.
3. The Current Executive Order Satisfies Strict Scrutiny. As discussed above, strict scrutiny does not apply here. But even if this Court applied strict scrutiny, the Order passes that test. First, the State has a compelling interest in protecting the health of its citizens by preventing the spread of a deadly global pandemic which threatens to overwhelm its healthcare systems. Every court which has considered whether various states’ stay-at-home orders further a compelling state interest has agreed that they do. See, e.g., On Fire, 2020 WL 1820249 at *7; Gish, 2020 WL 1979970 at *8; Legacy Church, Inc., 2020 WL 1905586, at *44. The Current Executive Order is narrowly tailored to further this compelling interest. As previously discussed, statewide orders are necessary to prevent the spread of a communicable disease that cannot presently be traced. Furthermore, the imposition of these orders has mitigated the spread of the virus in a way that lesser measures would not have.11 See, e.g., Menotti, 409 F.3d at 1137 (concluding that an executive order was narrowly tailored because “[t]here is no question that the governmental interest here (security of the core downtown area) would have been achieved less effectively absent Order No. 3”). And finally, the Current Executive Order and its possible successors will only be in place for the duration of the declared emergency. Int’l Soc. for Krishna Consciousness, 585 F.2d at 271 (“The restriction of activities lasts only for the duration of the emergency and is narrowly enough drawn to allow the airport
11 Lisa Schencker, Chicago Tribune, Illinois Might Have 19,000 Cases A Week from Now, According To One Analysis. But It Could Have Been Worse (Apr. 1, 2020).
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authorities to carry on their business with the least possible restriction of constitutionally guaranteed rights.”).
Plaintiffs argue that the “stay at home” measures are overbroad and underinclusive because they ban religious gatherings of more than ten people while also permitting gatherings of more than ten people if they are part of an essential business. But as previously discussed, these exempted activities are not analogous to religious mass gatherings. And these activities, like grocery shopping and food manufacturing, cannot be conducted remotely. See Legacy Church, 2020 WL 1905586 at *37 n. 12. Moreover, those activities which are deemed essential are still subject to social distancing regulations in the Current Executive Order. (Ex. A at 3-6).
At the end of the day, “[t]he government need not choose between doing nothing in the face of a pandemic and closing all of society. It may choose a middle ground, provided that it does so ‘without reference to the content of the regulated activity.’” Id. (quoting City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48 (1986)). Here, large gatherings that are comparable to religious services in form and function are similarly prohibited. In fact, by permitting gatherings of 10 people or less for the free exercise of religion, the Current Executive Order actually gives religious activity better treatment than comparable non-religious activities. Thus, the Current Executive Order is not overbroad or underinclusive so as to discriminate against religious activity as compared to similar secular activities. The Current Executive Order satisfies strict scrutiny.
C. The Current Executive Order Is a Reasonable Time, Place, and Manner Restriction that Does Not Violate the First Amendment.
Under the First Amendment, the government ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (quoting Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). “Content-based
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laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Id. (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992)).
Although “‘[c]ontent-based regulations are presumptively invalid,’” the State “is given much more leeway when its content-neutral regulations happen to limit some speech.” DiMa Corp. v. Town of Hallie, 185 F.3d 823, 827 (7th Cir. 1999) (quoting R.A.V., 505 U.S. at 382). Thus, if a regulation restricts the time, place, and manner of speech, those restrictions are reasonable “if they (1) are justified without reference to the content of the regulated speech; (2) are narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels for communication of the information.” Id. at 828 (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)); see also Leibundguth Storage & Van Serv., Inc. v. Vill. of Downers Grove, Illinois, 939 F.3d 859, 862 (7th Cir. 2019).
The principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. Ward, 491 U.S. at 791. The restrictions here govern conduct—prohibiting in-person gatherings for the duration of the emergency—not speech. This is significant because “[i]n most cases, the government may regulate conduct without regard to the First Amendment because most conduct carries no expressive meaning of First Amendment significance.” Schultz v. City of Cumberland, 228 F.3d 831, 841 (7th Cir. 2000) (excluding expressive conduct).
For this reason, the Current Executive Order is more similar to an executive order implementing a curfew or otherwise limiting public gatherings. Cases addressing such orders have concluded that the challenged restrictions at issue did not regulate speech. See Menotti v.
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City of Seattle, 409 F.3d 1113, 1128-29 (9th Cir. 2005) (“As a matter of law, Order No. 3 was not a regulation of speech content, but rather was ‘a regulation of the places where some speech may occur.’”) (quoting Hill v. Colorado, 530 U.S. 703, 719 (2000)); ACLU of W. Tennessee, Inc., 458 F. Supp. at 460 (emergency ordinance at issue “is a regulation of conduct, not designed to limit or control the expression of ideas, which unfortunately has an incidental impact on the exercise of first amendment rights.”); Moorhead, 723 F. Supp. at 1112-13 (“The statute is not designed to regulate in any way, nor does it have the effect of regulating, the content of speech or other form of expression.”).
Even if the Current Executive Order governed speech or expression, it nonetheless does not violate free speech. First, the restrictions are not based on viewpoint or content. The order applies equally to both religious services and similar secular events like concerts and conferences. To the extent that it provides exceptions for essential businesses, those are based on public health and safety factors, not the content of the message or the viewpoint of the speaker. See Menotti, 409 F.3d at 1128-29 (“The purpose of enacting Order No. 3 had everything to do with the need to restore and maintain civic order, and nothing to do with the content of Appellants’ message.”); see also Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 763 (1994) (“[T]he fact that the injunction covered people with a particular viewpoint does not itself render the injunction content or viewpoint based.”).
Second, the Current Executive Order is narrowly tailored. As discussed below, statewide orders are necessary to prevent the spread of a communicable disease that cannot presently be traced. Furthermore, the imposition of these orders has mitigated the spread of the virus in a way
25

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that lesser measures would not have.12 See, e.g., Menotti, 409 F.3d at 1137 (concluding that an executive order was narrowly tailored because “[t]here is no question that the governmental interest here (security of the core downtown area) would have been achieved less effectively absent Order No. 3”). And finally, the Current Executive Order and its potential successors will only be in place for the duration of the declared emergency. Int’l Soc. for Krishna Consciousness, 585 F.2d at 271 (“The restriction of activities lasts only for the duration of the emergency and is narrowly enough drawn to allow the airport authorities to carry on their business with the least possible restriction of constitutionally guaranteed rights.”).
Third, as discussed, there are ample alternative channels for Plaintiffs to communicate with their congregants through holding online and drive-in religious services, or repeated inperson services in small groups. This is not a situation where a certain category of speech has been prohibited. Accordingly, because the Current Executive Order is a reasonable time, place, and manner regulation, Plaintiffs do not a likelihood of success on the merits of their free speech claim.13
D. All State Law Claims Against the Governor in His Official Capacity Are Barred by Eleventh Amendment Sovereign Immunity.
In support of their motion for a preliminary injunction Plaintiffs’ allege that the emergency orders violate state law. More specifically, Plaintiffs allege that the orders “ban
12 Lisa Schencker, Chicago Tribune, Illinois Might Have 19,000 Cases A Week from Now, According To One Analysis. But It Could Have Been Worse (Apr. 1, 2020), https://www.chicagotribune.com/coronavirus/ctcoronavirus-forecasts-hospitals-rush-20200331-v5vcjb3kyvdtjme32of6tt2j64-story.html (last visited April 30, 2020). 13 Although the complaint raises the issue of freedom of assembly, this issue is not addressed in Plaintiff’s Motion for a TRO. In any event, the right of freedom of assembly has largely been subsumed by the right of freedom of association. Legacy Church, 2020 WL 1905586 at *25. The right to associate includes the engage in activities protected by the First Amendment, such as speech, and exercise of religion. Marshall v. Allen, 984 F.2d 787, 800 (7th Cir. 1993). Thus, because the Current Executive Order does not violate the free exercise clause nor the free speech clause, it does not violate the free assembly clause.
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Plaintiffs’ free exercise [of religion] outright” in violation of the Illinois Religious Freedom Restoration Act, codified as 775 Ill. Comp. Stat. 35/10(b)(1). (ECF No. 7, at 6-9.) Plaintiffs allege that in entering these orders, the Governor has exceeded his authority under the Illinois Emergency Management Act, 20 Ill. Comp. Stat. 2305/2(c) and “commandeer[ed]” the Illinois Department of Public Health Act, 20 Ill. Comp. Stat. 2305/2(a), which alone allows “quarantine, isolation, and closures.” (ECF No. 7, at 13-14). Plaintiffs briefly claim that because the Governor has “commandeered” the Illinois Department of Public Health Act, due process afforded under that act has also been stunted. (ECF No. 7, at 13-14). However, as a matter of law, Plaintiffs cannot succeed on any of these alleged state law violations because such actions are barred by the Eleventh Amendment to the Constitution of the United States.
The Eleventh Amendment provides that the judicial power of federal courts shall not extend to suits against a state by citizens of another state. The Eleventh Amendment is an “affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Article III [of the Constitution].” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97 (1984). Under Pennhurst, sovereign immunity bars suits against a state by its own citizens, as well as citizens of other states, because federal jurisdiction over suits against nonconsenting states was not contemplated when establishing the judicial power of the United States. Id.; see also Hans v. Louisiana, 134 U.S. 1 (1890). The sovereign immunity bar also prevents claims against state officials in their official capacities. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985) (“an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity” and further, “[i]t is not a suit against the official personally, for the real party in interest is the entity”); Brokaw v. Mercer County, 235 F.3d 1000, 1009 (7th Cir. 2000).
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There are three exceptions to sovereign immunity: (1) When Congress has abrogated the state’s immunity from suit through an unequivocal expression of its intent to do so through a valid exercise of congressional power; (2) when a state has waived its immunity and consented to the suit; and (3) when the suit is one for prospective injunctive relief pursuant to Ex parte Young, 209 U.S. 123 (1908). Sonnleitner v. York, 304 F.3d 704, 717 (7th Cir. 2002). None of these exceptions apply here.
To abrogate Eleventh Amendment immunity, either Congress or the state must unequivocally express a clear legislative statement confirming its intent to abrogate a state’s immunity and must act pursuant to a valid exercise of legislative power. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996); MCI Telecomm. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 338 (7th Cir 2000). Congress has taken no action to abrogate the State’s Eleventh Amendment immunity to Plaintiffs’ arguments under state law.
Although the Eleventh Amendment does not bar claims for injunctive relief against state officials to stop an ongoing violation of federal law, Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002), this exception does not extend to allowing claims based on alleged violations of state law. “A federal Court’s grant of relief against state officials on the basis of state law … does not vindicate the supreme authority of federal law.” Id. at 107. In holding that the Eleventh Amendment bars suits against state officials to compel them to conform their conduct to state law, the Pennhurst Court noted that “it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” Id. The Eleventh Amendment similarly bars state-law claims for declaratory relief. Watkins v. Blinzinger, 789 F.2d 474, 483–84 (7th Cir. 1986); Benning v. Bd. of Regents, 928 F.2d 775, 778 (7th Cir. 1991). A declaratory judgment cannot be used to
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avoid the Eleventh Amendment when monetary and injunctive relief would be barred. Council 31 of AFSCME. v. Quinn, 680 F.3d 875, 884 (7th Cir. 2012).
To determine that Plaintiffs’ state law arguments are barred by the Eleventh Amendment the Court need only conduct the straightforward inquiry mandated by Verizon Maryland and ask whether their state law arguments seek prospective relief to stop an ongoing violation of federal law. The answer is no. It is irrelevant that Plaintiffs other arguments allege violations of federal law. The limits on federal jurisdiction over state law claims cannot be evaded by making those claims pendant to federal claims. Pennhurst, 465 U.S. at 119–21. Applying this logic, the courts have routinely dismissed claims based on the Illinois Religious Freedom Restoration Act and the Illinois Constitution. See, e.g., Goodman v. Carter, No. 2000 C 948, 2001 WL 755137, at *9-10 (N.D. Ill. Jul. 2, 2001) (Illinois RFRA claim barred by Eleventh Amendment); Illinois Clean Energy Community Foundation v. Filan, No. 03 C 7596, 2004 WL 1093711, at *1, 3 (N.D. Ill. April 30, 2004) (claims under Illinois Constitution barred by Eleventh Amendment).
Because Plaintiffs seek relief based on state law, which is expressly prohibited by Pennhurst, such claims are barred by the Eleventh Amendment and must be dismissed. The Court need not address the merits Plaintiffs’ requested relief under state law. II. Plaintiffs Have Not Demonstrated Irreparable Harm to Warrant a TRO or
Preliminary Injunction. Plaintiffs’ motion should also be denied because they cannot establish irreparable harm. Winter, 555 U.S. at 2 (“possibility” of irreparable harm is not enough; plaintiffs must “demonstrate that irreparable injury is likely in the absence of an injunction”) (emphasis in original). Plaintiffs solely assert that harm is “actual and immediate” as “all of their in-person religious services and ministries shut down,” but fail to actually describe the harm that has been done to the congregation. This sparse description itself demonstrates that any potential harm to
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Plaintiffs is minor, let alone meeting the requisite burden of irreparable. While in-person services of more than 10 people have been restricted, the practice of religion has not been. As Plaintiffs themselves have reported to the media, they intend to hold services on-line via Facebook without restriction. While perhaps not their preference, as cited above, any argument that on-line services are not useful, effective, or meaningful in religious practice is called into question by the fact that Plaintiffs have been offering on-line podcasts since 2012. To the extent Plaintiffs allege decreased donations have resulted in damages, the Beloved Church’s webpage provides a link to donate as well. See Beloved Church, (May 1, 2020) https://belovedchurchillinois.com (last visited May 1, 2020). While religious services might have been taken on-line, they have not been stopped or prevented by the emergency orders.
As Plaintiffs are now aware, the Current Executive Order clarified that there is accommodation for in-person worship, including drive-in services or multiple small services, as long as social distancing is maintained and the gatherings are limited to ten people. (Ex. A ¶ 5(f).) As a result, Plaintiffs’ assertion that they cannot worship in person together has become moot, along with any harm stemming from the inability to physically meet. In summation, Plaintiffs have solely provided insufficient conclusions in the place of requisite real damages, which fall far from any irreparable harm. The fact that Plaintiffs chose to abide by the prior “stay at home” order for several weeks—only now claiming imminent harm if they had to conduct another week of services online—further underscores that there is no irreparable harm. III. The Harm to the State and the Public From a TRO Substantially Outweighs Any
Interim Harm to Plaintiffs Absent a TRO. Hardships to the public due to COVID-19 do not strain imagination and are dire. Those hardships outweigh any hardship to Plaintiffs in this case, especially so considering the Current Executive Order allows for religious services and the exercise of freedom of religion as long as
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social distancing is observed and gatherings do not exceed 10 people. (See Ex. A ¶ 5(f).) The public continues to be in grave danger, as Illinois recently reported 3,137 more cases of COVID19 just on today alone.14 The national total number of deaths has climbed to 62,996 lives taken.15 Illinois reports 2,457 total deaths.16 The federal courts have described the pandemic unambiguously as a highly unusual circumstance “the likes of which has not been seen in over a century.” Doe v. Barr, No. 20-CV-02263-RMI, 2020 WL 1984266, at *6 (N.D. Cal. Apr. 27, 2020).
Under the “balance of harms” portion of the analysis, Plaintiffs must establish that “the harm they would suffer without the injunction is greater than the harm that preliminary relief would inflict on the defendants.” Mich. v. U.S. Army Corps of Eng’g, 667 F.3d 765, 769 (7th Cir. 2011). Because a movant need not establish that it is more likely than not that they will succeed on the merits to obtain injunctive relief, a movant “must compensate for the lesser likelihood of prevailing by showing the balance of harms tips decidedly in favor of the movant.” Boucher, 134 F.3d at 826 n. 5 (emphasis in original). The court also should consider whether a preliminary injunction would cause harm to the public interest. Platinum Home Mort. Corp. v. Platinum Fin. Group, Inc., 149 F.3d 722, 726 (7th Cir. 1998).
When this Court balances the hardships where “the Government is the opposing party, the final two factors in the temporary restraining order analysis—the balance of the equities and
14 Illinois Department of Public Health, “Public Health of Officials Announce 2,563 New Cases of Coronavirus Disease,” Department of Public Health, (April 30, 2020) http://www.dph.illinois.gov/news/public-health-officials-announce-2563-new-cases-coronavirus-disease (last accessed May 1 2020). 15 Johns Hopkins University & Medicine, “COVID-19 World Map Dashboard,” Center for Systems Science and Engineering (CSSE) at Johns Hopkins University & Medicine, (May 1, 2020) https://coronavirus.jhu.edu/map.html (last accessed May 1, 2020). 16 State of Illinois, “State of Illinois Coronavirus (COVID-19) Response,” https://coronavirus.illinois.gov/s/ (last accessed May 1, 2020).
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the public interest—merge.” Planned Parenthood of New York City, Inc. v. U.S. Dep't of Health & Human Servs., 337 F. Supp. 3d 308, 343 (S.D.N.Y. 2018); Trump v. Int'l Refugee Assistance, 138 U.S. 353 (2017) (“As the district court did, we consider the balance of the equities and the public interest factors together.”); see also Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016) (“The government’s interest is the public interest.”) (emphasis in original).
A Plaintiff must show that the balance of equities tips in her favor. Winter, 555 U.S. at 20. An injunction is a drastic remedy and “courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Id. at 24 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)) (internal quotation marks omitted).
The federal courts recognize that public health is a significant public interest. Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005). It is with that significant public health interest in mind that this Court should balance the public’s interest in avoiding being unknowingly exposed to a virus where many are asymptomatic with Plaintiffs’ interest in continuing to hold church services for gatherings over ten people. As noted above, Plaintiffs may already hold church service with ten parishioners at a time.
In arguing that the balance of harms falls against the government, Plaintiffs boldly assert they have suffered irreparable harm to their fundamental constitutional rights and that “Defendants will incur no real harm to any legitimate government interest . . . .” (ECF No. 7, at 14.) The Governor’s interest is the public interest. Pursuing America’s Greatness v. FEC, 831 F.3d at 511. It is Plaintiffs who will not suffer irreparable harm because technology allows parishioners of the church to attend church service and even have spiritual counseling via video
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conference. Indeed, churches in Illinois have become experts at this.17 One option is for Plaintiffs to hold church service in person with no more than ten parishioners, while the other parishioners may join via video conferencing technology like Zoom. Many litigants during this unprecedented time have had to use Zoom for the first time in recent weeks. Plaintiffs’ assertion that no real harm will come to Defendant is unrealistic and flies in the face of science, especially considering many individuals who carry, and subsequently spread, COVID-19 are asymptomatic.18 COVID19 presents an unprecedented circumstance that shows the balance of harms does not favor Plaintiffs, where Plaintiffs can both hold a small church service and also allow parishioners to participate via video conference.
This Court must also analyze the public interest when considering whether to order an injunction in this case. Plaintiff primarily relies on the fact of the alleged violations of the First Amendment as commanding that an injunction in this case is in the public interest. In support, Plaintiff cites to Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). However, Walker provides no basis of support whatsoever for Plaintiff when analyzing the public interest because it involved a law school effectively kicking out a Christian student organization because they refused to allow gay individuals to be voting members. Id. at 858 (7th Cir. 2006). Walker’s TRO was about protecting against the snuffing out of particular speech targeted at gay
17 See, e.g., Rob Stroud, Coles County Churches Carry On with Online Services During Coronavirus Pandemic, https://jg-tc.com/news/local/coles-county-churches-carry-on-with-online-services-duringcoronavirus/article_04ec9b1b-847c-5ac6-a443-b6bf8bf9e424.html; Valerie Wells, Online Mass Available During Coronavirus Shutdown of Churches, https://herald-review.com/lifestyles/faith-and-values/onlinemass-available-during-coronavirus-shutdown-of-churches/article_32d8e31a-6978-54e7-811c6a294558c9f4.html 18 See, e.g., Apoorva Mandavilli, The New York Times, Infected But Feeling Fine (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatic-transmission.html; Tom Schuba, Chicago Sun-Times, Coronavirus Test Sites Added in Illinois, but Pritzker Says Limited Capacity Still ‘An Enormous Problem,’ (Mar. 20, 2020), https://chicago.suntimes.com/coronavirus/2020/3/30/ 21200135/coronavirus-test-sites-map-illinois-pritzker.
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individuals and provides little support for imposing an injunction during a global pandemic. Plaintiffs’ argument here seems really only to be because they believe the constitutional violation is happening, that fact alone shows it is in the public interest to employ the extraordinary remedy of an injunction. Not so. The United States District Court for the District of New Mexico, just a few weeks ago, encountered this same argument from a church in their state. The District Court found the right to gather did not outweigh limiting a COVID-19 outbreak and wrote:
Legacy Church relies on vindicating its constitutional rights as the interest at stake. Had it demonstrated likely success on the merits of its constitutional claims, Legacy Church could point to weighty public interests that could overcome the public's interests in enforcing social distancing. It has not demonstrated likely success, however. Without a constitutional right to rely on, Legacy Church must therefore rely on the public interest inherent in bringing together members and staff within its doors, and in this light, the law views Legacy Church's Easter service as just another gathering with as much right to protection as any other. The public's interest in limiting the COVID-19 outbreak in the state, a compelling interest, outweighs the right to gather. Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY, 2020 WL 1905586, at *44 (D.N.M. Apr. 17, 2020) (internal citation omitted). This Court should also find that, under the circumstances presented in this case, the right to gather in large groups does not outweigh the right of the Governor to protect the people of Illinois from COVID-19.
CONCLUSION For all of these reasons, the Court should deny Plaintiffs’ motion for a temporary restraining order or a preliminary injunction.
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Dated: May 1, 2020
KWAME RAOUL Attorney General of Illinois
R. Douglas Rees Christopher G. Wells Sarah H. Newman Kelly C. Bauer Hal Dworkin Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601

Respectfully Submitted,
/s/ Christopher G. Wells
Christopher G. Wells Chief, Public Interest Division Office of the Illinois Attorney General 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 (312) 814-1134 cwells@atg.state.il.us

35

 
 Case: 3:20-cv-50153 Document #: 29 Filed: 05/01/20 Page 1 of 8 PageID #:228

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not- )

for-Profit Corporation, and PASTOR

)

STEPHEN CASSELL, an individual

)

)

Plaintiffs,

)

)

vs.

)

JAY ROBERT PRITZKER, Governor of the

) )

Case No. 20-cv-50153

State of Illinois, DAVID SNYDERS, Sheriff )

of Stephenson County, Illinois, STEVE

)

SCHAIBLE, Chief of Police of the Village )

of Lena, Illinois, and CRAIG BEINTEMA, )

Administrator of the Department of Public )

Health of Stephenson County, Illinois, in

)

their official capacities.

)

)

Defendants.

)

DEFENDANT, STEVE SCHAIBLE’S RESPONSE TO PLAINTIFFS’ REQUEST FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION

NOW COMES the Defendant, Steve Schaible, Chief of Police of the Village of Lena,

Illinois, by and through his counsel, the law firm of Peterson, Johnson & Murray Chicago, LLC

and for his Response to Plaintiffs’ Request for a Temporary Restraining Order and Preliminary

Injunction, states as follows:

Statement of Facts

On March 31, 2020, Plaintiffs were served with a “Cease and Desist Notice” by the

Stephenson County Sheriff’s Office. (Dkt. # 1, ¶ 48). According to the Complaint, the Notice

instructed Pastor Cassell that in the event of a violation of the Governor’s Executive Order 20-10,

that the “Illinois Department of Public Health has the authority to order that a place be closed and

made off limits to the public and further, that the he may be subjected to civil and criminal

Case: 3:20-cv-50153 Document #: 29 Filed: 05/01/20 Page 2 of 8 PageID #:229
penalties. (Emphasis added) (Dkt. # 1, ¶ 49). The Notice further advised that “police officers, sheriffs and all other officers in Illinois are authorized to enforce such orders.” (Id.). According to the Plaintiffs, in response to this Notice, they have suspended all communal activities at the Church building, including the Sunday services. Plaintiffs justifiably fear arrest, prosecution, fines, and jail time if they open their church building or hold religious services of any kind. (Dkt. #1, ¶ 50).
Nearly one month after receiving the aforementioned Notice, on April 30, 2020, Plaintiffs, filed a Verified Complaint against the Governor of Illinois, the Sheriff of Stephenson County, the Stephenson County Administrator of Public Health and Steve Schaible, Chief of Police for the Village of Lena, challenging the Governor’s authority to combat the spread of the novel Coronavirus-19 (“Covid-10”). (Dkt. # 1). Since filing their Complaint however, another Executive Order was issued. (See, Executive Order 2020-32 (COVID-19 Executive Order No. 301)). This Executive Order recognizes organizations that provide charitable and social services; specifically, religious and secular nonprofit organizations, are “Essential Businesses and Operations”. (Executive Order 2020-32, § 2, ¶ 12(c)). Moreover, citizens of the State are presently free to “engage in the free exercise of religion, provided that such exercise must comply with Social Distancing Requirements and the limit on gatherings of more than ten people in keeping with CDC guidelines for the protection of public health. Religious organizations and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregants”. (Executive Order 2020-32, § 2, ¶ 5(vi)).
Just as important as the new Executive Order, which moots the majority of Plaintiffs’ claims, the Verified Complaint is devoid any specific act or omission of Defendant Schaible. In
1 A true and accurate copy of the Governor’s Executive Order 2020-32 may be found at https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-32.aspx; last viewed on May 1, 2020.

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fact, other than listing him as the Chief of Police for the Village in which the Plaintiffs’ premises are located (Dkt. # 1, ¶ 17), neither the Chief nor the Village are mentioned in the Complaint. This is likely because neither Defendant Schaible nor anyone from the Village of Lena have threatened any enforcement action against the Plaintiffs. In fact, they can affirmatively state by way of this Response that any actions to enforce Executive Order 2020-32 will come from the State and not the Village of Lena Police Department. In light of this fact, the Plaintiff’s request for a temporary restraining order, preliminary injunction, all of the relief sought in Plaintiffs’ Complaint against Defendant Schaible, should be denied.
Legal Standard A party seeking a preliminary injunction or temporary restraining order must demonstrate that (1) its claim has some likelihood of success on the merits; (2) traditional legal remedies would be inadequate; and (3) absent injunctive relief, it will suffer irreparable harm in the period prior to final resolution of its claims. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of America, Inc., 549 F.3d 1079, 1085 (7th Cir. 2008). If the moving party satisfies these threshold requirements, the Court must balance the threatened injury to the moving party with the threatened harm the injunctive relief may inflict on the non-moving party. Id. The Court also must consider the public interest in either the grant or the denial of the injunctive relief. Id. In applying this, criteria, the Court should use a “sliding scale” approach: if a claim is very likely to succeed on the merits, less harm to the plaintiff will be required to justify injunctive relief and vice versa. Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992); Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). “The sliding scale approach is not mathematical in nature, rather `it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.” Abbott Labs. v. Mead Johnson

Case: 3:20-cv-50153 Document #: 29 Filed: 05/01/20 Page 4 of 8 PageID #:231
& Co., 971 F.2d 6, 12 (7th Cir.1992).
Argument
I. Plaintiffs lack standing under Article III of the Constitution to bring this dispute before the Court and the issues raised by their motion for a temporary restraining order and preliminary injunction are not ripe for a judicial determination.
Article III of the Constitution constrains the federal courts’ authority to resolve only cases
and controversies, and courts therefore have jurisdiction only over litigants who have standing to
sue. Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992). Article III standing consists of three
minimum requirements: (1) injury in fact; (2) causation; and (3) redressability. Id. at 560-61. Here,
Plaintiffs cannot satisfy the injury in fact requirement. As concerns the said requirement, the U.S.
Supreme Court has noted:
It is not enough that the [plaintiff]’s complaint set forth facts from which we could imagine an injury sufficient to satisfy Article III’s standing requirements, since we should not speculate concerning the existence of standing, nor should we imagine or piece together an injury sufficient to give plaintiff standing when it has demonstrated none. The plaintiff has the burden to clearly and specifically set forth facts to satisfy Article III standing requirements. If the plaintiff fails to meet its burden, this court lacks the power to create jurisdiction by embellishing a deficient allegation of injury.
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).
In addition to the foregoing standards, it has further been observed that a plaintiff only
suffered an “injury in fact if he suffered an invasion of a legally protected interest that is concrete,
particularized, and actual or imminent.” Lujan, 504 U.S. at 560. A concrete injury is not one that
is conjectural or hypothetical. Id. at 560-61. A concrete injury must be one that results in a
“demonstrable, particularized injury” to the plaintiff. Warth v. Seldin, 422 U.S. 490, 508 (1975)
“The Supreme Court has ‘repeatedly reiterated that ‘threatened injury must be certainly impending

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to constitute injury in fact’ and that ‘allegations of possible future injury’ are not sufficient.” Whitmore, 495 U.S. at 158.
Here, Plaintiffs have not shown an imminent injury to have standing to pursue a temporary restraining order. Plaintiffs allege that Pastor Cassell was personally served with a “Cease and Desist Notice” drafted by Defendant Beintema, the Public Health Administrator for Stephenson County, as concerned Executive Order 2020-10 promulgated by Defendant Pritzker on March 9, 2020. However, no facts are alleged supporting that Plaintiffs face a threat of arrest or other harm based upon Executive Order 2020-18 promulgated by Defendant Pritzker on April 1, 2020, or under Defendant Pritzker’s newly promulgated Executive Order 2020-32 (to which neither Plaintiff’s complaint nor motion for a temporary restraining order and preliminary injunction make reference), pursuant to which religious gatherings, including drive-in services, are permitted so long as social distancing guidelines are adhered to.
Plaintiffs’ motion basically concedes their lack of standing in as much as it reads: “Plaintiffs, therefore, believe they are and remain subject to the ‘adhere to’ command of the ‘Cease and Desist Notice,’ and also face threats of arrest by Defendant Pritzker and the Illinois State Police.” The alleged injury is thus speculative and does not constitute an actual, concrete, particularized, de facto injury required to support Article III standing and, instead, is the sort of conjectural or hypothetical allegation that deprives this Court of jurisdiction over Plaintiff’s action.
Relatedly, the issues raised by Plaintiffs’ motion for a temporary restraining order and preliminary injunction are not ripe for a judicial determination. A claim is not ripe for adjudication if “it rests upon contingent events that may or may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, (1998). As alluded to above, there has been no enforcement activity whatsoever against Plaintiffs as concerns Executive Orders 2020-18

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and 2020-23, especially by the Village of Lena. As such, the issues raised by their motion for preliminary injunction are not ripe for a judicial determination.
II. The Plaintiffs’ claims have been mooted by Executive Order 2020-32 On April 30, 2020, Governor Pritzker signed Executive Order 2020-32.2 Plaintiffs’ claims were predicated upon religious serviced not being included as “Essential Activities” under prior Executive Orders. However, the Executive Order currently in place designates “the free exercise of religion” as part of the “Essential Activities”. See, Section 2, Paragraph 5(vi). Pursuant to the Executive Order 2020-32, Illinois residents can engage in the free exercise of religion as long as they engage in Center for Disease Control Guidelines, limit gatherings of more than ten people. However, there are not limitations for online services and religious organizations can use “drivein services to protect the health and safety of their congregants.” Id. Plaintiffs’ Complaint and Motion for a Temporary Restraining Order and Preliminary Injunction were premised upon the prior Executive Orders that did not provide for exercise of religion in the order. However, this Executive Order now allows for such practices. Essentially, Executive Order 2020-32 has mooted the claims and arguments of Plaintiff. As noted, Article III of the Constitution. This requires an actual controversy at “all stages of review, not merely at the time the complaint is filed.” Campbell-Ewald Co. v. Gomez, 577 U.S. ___, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016), quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). “There is [] no case or controversy, and a suit becomes moot, when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Chafin v. Chafin, 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (quoting
2 A copy of this Executive Order can be viewed at https://www2.illinois.gov/Pages/ExecutiveOrders/ExecutiveOrder2020-32.aspx.

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Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013)). “No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute ‘is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.’” Already, LLC, 568 U.S. at 91, 133 S.Ct. 721 (quoting Alvarez v. Smith, 558 U.S. 87, 93, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009)).
The issue here is whether Executive Order 2020-32 has mooted Plaintiffs’ challenge to the prior Executive Orders. Clearly, Executive Order 2020-32 specifically designates exercise of religion as essential. Plaintiffs’ motion only seeks to enjoin the defendants from Executive Orders 2020-10 and 2020-18, “and the announced upcoming executive order”. Doc. No. 7, p. 15. This prayer for relief does not consider the current designation of Essential Activities and the arguments in Plaintiffs’ motion have been mooted by Executive Order 2020-32.
III. Adoption of Arguments of Co-Defendants Steve Schaible, Chief of Police of the Village of Lena adopts and incorporates herein the arguments of the other Defendants set forth in their response briefs, to the extent applicable, as set forth fully herein. Chief Schaible will defer to the Governor’s definition of “drive-in services” as noted in this Court’s May 1, 2020 Minute Order (Doc. No. 16). WHEREFORE, Defendant STEVE SCHAIBLE, Chief of Police of the Village of Lena, Illinois, respectfully requests that this Court enter an order denying Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction and for any other relief that this Court deems necessary and just.

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Paul O’Grady Dominick L. Lanzito Kevin Casey Jennifer Turiello Peterson, Johnson & Murray Chicago, LLC 200 West Adams St., Suite 2125 Chicago, IL 60606 T (312) 782-7150; F (312) 896-9318

Respectfully submitted: STEVE SCHAIBLE, Chief of Police of the Village of Lena, Illinois
By: /s/ Paul O’Grady

 
 Case: 3:20-cv-50153 Document #: 27 Filed: 05/01/20 Page 1 of 18 PageID #:208

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-for- )

Profit Corporation, and PASTOR STEPHEN

)

CASSELL, an individual,

)

)

Plaintiffs,

)

)

v.

)

)

JAY ROBERT PRITZKER, Governor of the State )

of Illinois, DAVID SNYDERS, Sheriff of

)

Stephenson County, Illinois, STEVE SCHAIBLE, )

Chief of Police of the Village of Lena, Illinois, and )

CRAIG BEINTEMA, Administrator of the

)

Department of Public Health of Stephenson

)

County, Illinois, in their official capacities,

)

)

Defendants.

)

Case No. 20-CV-50153 Honorable Judge Lee

SHERIFF SNYDERS AND ADMINISTRATOR BEINTEMA’S RESPONSE TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION

Defendants Stephenson County Sheriff Snyders and Stephenson County Administrator of

Public Health Beintema have been caught in the middle of a fight between the Beloved Church

and Pastor Cassell, on one side, and Governor Pritzker, on the other. The gravamen of this

complaint challenges the constitutionality and enforceability of Governor Pritzker’s “stay-at-

home” Executive Orders, and Plaintiffs’ motion seeks to enjoin enforcement of those Executive

Orders.

Sheriff Snyders and Administrator Beintema, sued in their official capacities, are local

public agencies. On March 31, 2020, Administrator Beintema issued a “Cease and Desist

Notice,” which advised Beloved Church that the Illinois Department of Public Health could,

under the Illinois Department of Public Health Act, issue a closure order to the Beloved Church

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if the church did not adhere to the Executive Orders. That Notice was served by a Sheriff’s deputy. Plaintiffs began holding religious services via Facebook Live and YouTube, and they never heard from Sheriff Snyders or Administrator Beintema again. Nor did they seek any relief from the court at that time.
Yet, on April 30, 2020, Plaintiffs sued Sheriff Snyders and Administrator Beintema, and requested that this court enjoin them from enforcing the Executive Orders or the Cease and Desist Notice even though Sheriff Snyders and Administrator Beintema have never threatened to enforce the Executive Orders or the Cease and Desist Notice.
This court should deny Plaintiffs’ motion as to Sheriff Snyders and Administrator Beintema for the following reasons:
First, Plaintiffs seek to disturb the status quo with an injunction that allows them to fill their church without any consideration to social distancing guidelines—something that no business has done for several months.
Second, Plaintiffs’ request is not an “emergency” and denial of their request will not cause “irreparable harm” because they can minister via online streaming in compliance with the Executive Orders and social distancing guidelines, just like they have been doing since March 1, 2020.
Third, Plaintiffs’ claims against Sheriff Snyders and Administrator Beintema are not ripe. Simply put, neither Sheriff Snyders nor Administrator Beintema has threatened any impending action that would cause injury. Plaintiffs cannot sue for possible future injury.
Fourth, Plaintiffs target the Executive Orders, and admit that the Public Health Act authorizes closure orders. Administrator Beintema acts pursuant to the Public Health Act, not the Executive Orders.
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Finally, the danger to the public outweighs the Plaintiffs’ desire to hold in-person services that do not account for social distancing guidelines.
For these reasons, Plaintiffs’ motion for a temporary restraining order and preliminary injunction should be denied as to Sheriff Snyders and Administrator Beintema.
BACKGROUND I. Beloved Church and Pastor Cassell Have Been Conducting Online Sermons for
Months. Since at least March 1, 2020 (Sunday), Pastor Cassell has ministered to his congregation at the Beloved Church both in-person and using video platforms like Facebook Live and YouTube.1 Prior to March 31, the congregation attended services live at the Beloved Church, and the sermons were also then posted online. Following March 31, the sermons were livestreamed online, but without a live audience inside the church. Pastor Cassell’s sermons are contemporary. For example, on March 15, 2020, Pastor Cassell presented a sermon on YouTube called “Corona-Lie,” in which he tells his congregation that Corona Beer has caused 2500 deaths, while Corona Virus has caused only 38 deaths. Pastor Cassel advises his congregation: “Why don’t we shut the country down for the 2500 people that have died from alcohol? Because it doesn’t fit the narrative. I don’t know if you realize this, but you are being absolutely manipulated.”2 It is evident from these videos that Pastor Cassell has no problem ministering to his congregation online, and also that he is skeptical (to say the least) of social distancing protocols suggested by Governor Pritzker and the CDC.
1 The Beloved Church YouTube Channel is at https://www.youtube.com/channel/UCWfpUtJNCXOZQOWI3vGWu7w. Sheriff Snyders and Administrator Beintema request that this court take judicial notice of the Beloved Church’s YouTube channel. Goplin v. WeConnect, Inc., 893 F.3d 488, 491 (7th Cir. 2018) (approving district court taking judicial notice of website where the Defendant’s website was cited by Plaintiff in response to Defendant’s motion to dismiss, and Defendant had an opportunity to address the website in its reply brief and “simply failed to use that opportunity,” and the assertions from the website relied on were the Defendant’s own assertions, like in this case). 2 https://www.youtube.com/watch?v=QJix0dCxhGQ&t=2345s (starting at around time stamp 38:58).
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II. Stephenson County Health Department Issued a Cease and Desist Notice to Beloved Church on March 31, 2020. On March 31, 2020, the Stephenson County Health Department issued a “Cease and
Desist Notice” to the Beloved Church, which deputies employed by the Stephenson County
Sheriff allegedly served on Pastor Cassell. (Doc. 1 ¶ 48, Ex. C.) The Cease and Desist Notice
set forth information on the COVID-19 pandemic and the terms of Executive Order 2020-10
responding to the pandemic, including its prohibition of religious gatherings of more than 10
people. The Cease and Desist Notice advised that the Beloved Church “is required to adhere to
this Executive Order, and that these steps are necessary and proper to prevent further spreading
of COVID-19.” (Id.) Finally, the Cease and Desist Notice stated as follows:
If you do not adhere to this Executive Order, the Illinois Department of Public Health has the authority to order that a place be closed and made off limits to the public, ''to prevent the probable spread of a dangerously contagious or infectious disease ... until such time as the condition can be corrected or the danger to the public health is eliminated or reduced in such a manner that no substantial danger to the public's health any longer exists." 20 ILCS 2305/2(b). The process of issuing such an order is set forth in 20 ILCS 2305/2(c). Furthermore, police officers, sheriffs and all other officers in Illinois are authorized to enforce such orders. In addition to such an order of closure issued by the Illinois Department of Public Health you may be subject to additional civil and criminal penalties. (Id.) (emphasis added). Notably, the Cease and Desist Notice was not an “order” under 20 ILCS 2305/2(c) from the Stephenson County Health Department. Rather, the Cease and Desist Notice was intended to place the recipient on “notice” that an order could be forthcoming from the Illinois Department of Public Health (“IDPH”) if the IDPH deems one necessary under 20 ILCS 2305/2(b). The Cease and Desist Notice advised that once an “order” is issued by the IDPH, law enforcement is authorized to enforce that order, which is true. Notably, Plaintiffs do not allege that they were ever issued an “order” by the Stephenson County Health Department or the IDPH. Plaintiffs do not allege that Stephenson County Health Department threatened to issue its own order under 20 ILCS 2305/2(b). Plaintiffs do not allege that the Sheriff or his deputies ever threatened Cassell or anyone in his congregation with penalty if they violated the Cease and Desist Notice or any of the Executive
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Orders. Plaintiffs do not allege that they had any contact whatsoever with Sheriff Snyders or Administrator Beintema after March 31.
Cassell took the Cease and Desist Notice seriously at first, and discontinued live attendance at the Beloved Church starting with his Sunday service on April 5. However, he continued his sermons online. That is, until last Sunday, on April 23, when Pastor Cassell announced the following at the conclusion of his Facebook Live sermon:
I am not going to be bound by any man or any government system. So I’m here to tell you. Next week, Beloved Church, May 3, is going to be here and live and real. Which means that this is the last Facebook Live that you might ever see because we are going to be doing live church. Not Facebook Live. That doesn’t mean that we are not going to record the message and all you folks that are out there because I know that there are a ton of you in other countries and other states and all that and you love hearing what we’re doing and listening to my twangy voice, God bless you, and you’re still gonna have that. We have a YouTube channel, you can subscribe, you can get all these messages. They’ll show up. But the way that you are going to do church with us is right here, flesh and blood, cheek to cheek, hand to hand, heart to heart. It’s been a long time coming and I’m happy to make this announcement.3 III. Plaintiffs’ April 30, 2020 Lawsuit and the Subsequent Executive Order 2020-32. Pastor Cassell and the Beloved Church filed this lawsuit and Motion for Temporary Restraining Order and Preliminary Injunction (“Motion”) around noon on April 30, 2020 in anticipation of Governor Pritzker signing Executive Order 2020-32, which Governor Pritzker announced on April 23, 2020 and a draft of which he released to the media on April 24, 2020. (Compl., Doc. 1 ¶ 38, Ex. B.) The gravamen of Plaintiffs’ Complaint and Motion is that the anticipated Executive Order 2020-32 omitted religious services from its definition of “essential businesses,” thus prohibiting the Beloved Church from opening during the pendency of the Executive Order and treating religion differently than other businesses like grocery stores. (Doc. 1 ¶ 44; Motion, Doc. 7 at 1.)
3 https://www.youtube.com/watch?v=KjieDS3nwgY (starting at about 1:00:45 time stamp).
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Plaintiffs jumped the gun, though. The final, signed version of Executive Order 2020-32
was released towards the end of the business day on April 30, 2020, and specifically includes
religious activity as an “essential activity.”4 EO 2020-32 states the following in
Section 2, Paragraph 5:
5. Leaving the home for essential activities is permitted. For purposes of this Executive Order, individuals may leave their residence only to perform any of the following Essential Activities, and must follow the Social Distancing Requirements set forth in this Order, including wearing face coverings when in public or at work: . . .
f. To engage in the free exercise of religion. To engage in the free exercise of religion, provided that such exercise must comply with Social Distancing Requirements and the limit on gatherings of more than ten people in keeping with CDC guidelines for the protection of public health. Religious organizations and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregants.
Executive Order 2020-32 defines Social Distancing Requirements as the following:
15. Social Distancing, Face Covering, and PPE Requirements. For purposes of this Executive Order, Social Distancing Requirements includes maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.
a. Required measures. Essential Businesses and Operations and businesses engaged in Minimum Basic Operations must take proactive measures to ensure compliance with Social Distancing Requirements, including where possible:
i. Designate six-foot distances. Designating with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;
ii. Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;
iii. Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers; and
4 Available at https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-32.aspx.
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iv. Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.
v. Face Coverings and PPE. Providing employees with appropriate face coverings and requiring that employees wear face coverings where maintaining a six-foot social distance is not possible at all times. When the work circumstances require, providing employees with other PPE in addition to face coverings.
Plaintiffs have indicated that they might file an Amended Complaint and Amended Motion for TRO, but as of the time of the filing of this brief, they have not done so. They have also not withdrawn their current request for a TRO on their Initial Complaint, and it remains pending. IV. Stephenson County Defendants Will Not Interfere with the May 3 Worship Service
Pending Resolution of this Motion for Temporary Restraining Order. Plaintiffs have made clear that they do not intend to adhere to Executive Order 2020-32. The Church expects about 80 parishioners on May 3, exceeding the 10-person cap set forth in Executive Order 2020-32. (Doc. 1 ¶ 72.) Consistent with Governor Pritzker’s comments on April 30 that, “Nobody’s going to, you know, run in and break up a gathering of churchgoers at the moment,”5 Sheriff Snyders will not enforce Executive Order 2020-32 against the Plaintiffs’ worship service on May 3. Similarly, Administrator Beintema, whose enforcement authority is limited to instituting prosecutions and proceedings for violations of the rules and regulations adopted by the IDPH, will not enforce Executive Order 2020-32 against the Plaintiffs’ worship service on May 3. For the reasons that follow, this court should deny Plaintiffs’ Motion for entry of a temporary restraining order against Sheriff Snyders and Administrator Beintema.
5 https://www.chicagotribune.com/coronavirus/ct-coronavirus-pritzker-church-lawsuit-20200430eekia47qvjbx7cuoqaby7hv4ti-story.html.
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ARGUMENT “The standards for issuing temporary restraining orders are identical to the standards for preliminary injunctions.” Van Dyke v. Illinois Dep’t of Children and Family Servs., No. 13-CV5971, 2014 WL 2134580, at *8 (N.D. Ill. May 22, 2014) (Lee, J.). A temporary restraining order “is an extraordinary remedy that is ‘never to be indulged in except in a case clearly demanding it.’” See Air Serv Corp. v. Serv. Employees Int'l Union, Local 1, 225 F. Supp. 3d 745, 747 (N.D. Ill. 2016) (Lee, J.) (quoting Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the USA, Inc., 549 F.3d 1079, 1085 (7th Cir. 2008)). The party moving for a temporary restraining order bears the burden of making a clear showing that it is entitled to the relief it seeks. See Goodman v. Ill. Dep't of Fin. & Prof'l Regulation, 430 F.3d 432, 437 (7th Cir. 2005). In determining whether to grant a motion for a temporary restraining order, courts engage in an analysis that proceeds in two separate phases: a threshold phase and a balancing phase. See Air Serv Corp., 225 F. Supp. 3d at 747. To survive the threshold phase, the party seeking a temporary restraining order must show that it will suffer irreparable harm without the injunction, that traditional legal remedies would be inadequate, and that its claim has a likelihood of success on the merits. Id. at 1086. If these threshold requirements are not met, the motion for a preliminary injunction must be denied. Id. If, however, the moving party satisfies this initial threshold, the court proceeds to the balancing phase, in which the moving party must demonstrate that the harm that would be caused without an injunction outweighs the harm that would be suffered by the nonmoving party in the event the injunction is granted. Id. “The essence of a temporary restraining order is its brevity, its ex parte character, and . . . its informality.” Geneva Assurance Syndicate, Inc. v. Med. Emergency Servs. Assocs., 964 F.2d 599, 600 (7th Cir. 1992). “Given the emergency nature of such relief, a relaxed evidentiary
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standard is appropriate.” Democratic National Committee v. Bostelmann, No. 20-CV-249, 2020 WL 1320819, *4 (W.D. Wisc. March 20, 2020). I. Plaintiffs’ Request Disturbs the Status Quo, Does Not Comprise an Emergency, and
Does Not Prevent Irreparable Harm. “[A] preliminary injunction is a provisional remedy designed to preserve the status quo until the case can be heard upon the merits.” Westinghouse Elec. Corp. v. Free Sewing Mach. Co., 256 F.2d 806, 808 (7th Cir. 1958). “The status quo is the last uncontested status which preceded the pending controversy.” Id. In this case, the status quo is (1) the ongoing state of disaster in Illinois, as set forth in the Governor’s proclamations of March 9, 2020 and April 2, 2020 (doc. 1 ¶¶ 34, 36), (2) the accompanying Executive Orders 2020-10 and 2020-18, which required Illinois residents to stay at home under many circumstances, and did not identify religious services as an “essential business” (doc. 1 ¶ 38), (3) the most recent Executive Order 2020-32, which extended Orders 2020-10 and 2020-18 but with additional flexibility afforded to religious services as “essential businesses,” and (4) compliance of those Executive Orders by the Plaintiffs starting March 31, 2020 and lasting through today (doc. 1 ¶ 50). From March 31 until April 30—a full 30 days— the Plaintiffs complied with the Executive Orders and held remote services on Facebook Live and YouTube. Plaintiffs seek to change the status quo with a TRO that authorizes them to pack a church with 80 worshipers, absent any consideration to the Executive Order, the Illinois Public Health Act, or even the CDC recommended guidelines. The emergency nature of Plaintiffs’ proposed relief is also undermined by the demonstrated ability of Pastor Cassell to hold service via streaming services, and Plaintiffs’ failure to challenge Executive Order 2020-10 or Executive Order 2020-18 (which continued Executive Order 2020-10) over the 30 days that Pastor Cassell was holding service exclusively
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via streaming service. Further, Plaintiffs did not file this lawsuit when the draft Executive Order 2020-32 was released on April 24, 2020. Instead, after a full month of compliance with the Executive Orders, Plaintiffs filed this lawsuit and Motion for TRO less than two business days before their next scheduled Sunday service.
Plaintiffs were capable of holding service exclusively via streaming service on April 5, April 12 (Easter), April 19, and April 26. Plaintiffs held services online prior to those dates on March 1, March 8, March 15, March 22, and March 29. On April 26, Pastor Cassell stated that he will continue to hold services online, even after his congregation is allowed to meet in person, so that people in other states and countries can receive his message. Plaintiffs’ continued provision of online services will not cause any tangible “irreparable harm,” and none has been pled. II. Plaintiffs Are Unlikely to Succeed on the Merits Against Sheriff Snyders and
Administrator Beintema Because Their Claims Are Not Ripe. “To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (internal quotes omitted). “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id. (internal quotes omitted) (emphasis in original). The Supreme Court has “repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient.” Id. (quotes omitted) (emphasis in original). See Construction and Gen. Laborers Union No. 330 v. Town of Grand Chute, 915 F.3d 1120, 1127 (7th Cir. 2019) (finding that
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potential enforcement of a town ordinance potentially prohibiting aspects of union protest, which had not yet taken place, was not ripe).
In this case, the Plaintiffs request an order enjoining Sheriff Snyders and Administrator Beintema from “applying EOs 2020-10 and 2020-18, and the announced upcoming executive order, against Plaintiffs’ church services and religious gatherings and ministries[.]” (Doc. 7 at 15.) Plaintiffs filed their motion “[t]o stave off arrest and prosecution for the exercise of their fundamental liberties[.]” (Doc. 7 at 1.) But arrest and prosecution are not “certainly impending” from either Sheriff Snyders or Administrator Beintema, and these claims are not ripe.
A. The Claims Against Sheriff Snyders Are Not Ripe. Plaintiffs do not allege that Sheriff Snyders or his deputies made any threat of enforcement at any time, nor could they. The only allegation against the Sheriff is that his deputy served the Cease and Desist Notice for the County’s Health Department over a month ago, which is a ministerial task for the Sheriff’s Department. (Doc. 1 ¶ 48.) Plaintiffs do not allege any contact with the Sheriff since March 31. Further, as represented in this brief, the Sheriff and his deputies do not intend to enforce Executive Order 2020-32 against the Beloved Church this Sunday, May 3. There is no threat of “certainly impending injury” from the Sheriff, particularly where the services have not even occurred yet. Construction and Gen. Laborers Union No. 330, 915 F.3d at 1127. If fewer than 10 people show up on Sunday, then Plaintiffs’ services might comply with the Executive Order 2020-32. This contingency renders the claims against the Sheriff unripe.
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B. The Claims Against Administrator Beintema are Not Ripe. Similarly, as also represented in this brief, Administrator Beintema will not take any action to enforce Executive Order 2020-32 or the Cease and Desist Notice against the Plaintiffs on May 3. He does he even have the authority to do so. Plaintiffs misinterpret the Cease and Desist Notice as an “order,” which it is not. The Cease and Desist Notice was just that—a notice—which advised Plaintiffs that noncompliance with the Executive Orders could be grounds for a closure order from IDPH under the Illinois Department of Public Health Act (“Public Health Act”), 20 ILCS 2305/2(b) and (c). Section 2(b) of the Public Health Act authorizes IDPH to “order a place to be closed and made off limits to the public to prevent the probable spread of a dangerously contagious or infectious disease . . . until such time as the condition can be corrected or the danger to the public health eliminated or reduced in such a manner that no substantial danger to the public’s health any longer exists.” 20 ILCS 2305/2(b). The IDPH has the authority to “order a place to be closed and made off limits to the public on an immediate basis without prior consent or court order if, in the reasonable judgment of the [IDPH], immediate action is required to protect the public from a dangerously contagious or infectious disease.” 20 ILCS 2305/2(c). The Public Health Act then provides, “In the event of an immediate order issued without prior consent or court order, the Department shall, as soon as practical, within 48 hours after issuing the order, obtain the consent of the person or owner or file a petition requesting a court order authorizing the . . . closure.” 20 ILCS 2305/2(c). The Cease and Desist Notice expressly cites to the Public Health Act, 20 ILCS 2305/2(b) and (c). (Doc. 1, Ex. C.) Its authority arises from the Public Health Act, not from the Executive Order (although the findings in the Executive Order could also support a finding by the IDPH
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that large gatherings of individuals refusing to practice social distancing guidelines presents a “probable spread of a dangerously contagious or infections disease,” thereby triggering the IDPH’s authority to issue a closure order under § 2(b) and (c).) The Cease and Desist Notice did not purport to be a “closure order” issued by the Stephenson County Health Department. Although the Stephenson County Health Department may have also had the authority to issue a “closure order” under 20 ILCS 2305/2(c) and 20 ILCS 2310/2310-15 (delegating enforcement authority to certified local health departments), the County Health Department’s Cease and Desist Notice specifically defers to and warns that the IDPH has the authority to close the Church; it does not warn that the County Health Department will take any action. Even if it could have been interpreted at the time as a “closure order,” it expired by the terms of 20 ILCS 2305/2(c)—a statute that it specifically cites—48 hours after it was issued. Thus, the Cease and Desist Notice did not present at the time, and does not present now, an impending threat of injury by the Stephenson County Health Department or Administrator Beintema.
Plaintiffs’ Memorandum in Support of Their Request for Temporary Restraining Order and Preliminary Injunction is almost entirely directed at the constitutionality of the Executive Order. (Doc. 7 at 6–14.) The relief that Plaintiffs request is an injunction of the applicability of the Executive Orders. (Doc. 7 at 15.) The only sentence directed against the Stephenson County Defendants in Plaintiffs’ entire Memorandum is the following: “It is only by operation of these extended emergency powers that the Stephenson County Defendants continue to claim the ‘Cease and Desist Notice’ served on plaintiffs remains in effect, and to claim the authority to enforce the provision of EO 2020-10 against Plaintiffs.” (Doc. 7 at 13.) (emphasis in original). This statement is not supported by any allegation in the Complaint. There are no allegations in the Complaint that the Stephenson County Defendants (either Sheriff Snyders or Administrator
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Beintema) “continue to claim the ‘Cease and Desist Notice’ served on plaintiffs remains in effect,” nor could there be. The Cease and Desist Notice was expressly premised on the Public Health Act—as it must be—and the Public Health Act does not authorize indefinite closures absent consent or court order. Plaintiffs cannot justifiably believe that the Cease and Desist Notice was an “order” or that it was continued indefinitely to require closure of the Beloved Church. No new “Cease and Desist” notices or orders have been issued by the County Health Department.
Plaintiffs cannot request that this court enjoin Administrator Beintema from enforcing any Executive Order or the Cease and Desist Notice because there is no certainly impending threat that Administrator Beintema will enforce either—because he cannot. Without an impending injury, the claims against Administrator Beintema are not ripe. III. Plaintiffs’ Memorandum Concedes that IDPH Has Authority to Close the Church.
Plaintiffs Memorandum targets the enforceability and constitutionality of the Executive Orders, and the Governor’s authority to close the church. That is essentially the only relief that they request. The Stephenson County Defendants defer to the Attorney General’s Office on that issue (including the interpretation of “drive-in services”). (See doc. 16.)
Plaintiffs do not argue that the Public Health Act is unconstitutional. In fact, Plaintiffs argue that the Governor lacks authority under IEMA to close the church because the Public Health Act “provides the exclusive remedy for quarantine and isolation and closures, along with ensuring the due process rights of those who are subject to such measures.” (Doc. 7 at 13.)
As set forth above, Administrator Beintema’s authority comes from the Public Health Act, not the Executive Orders. It was precisely this authority of which the Cease and Desist Notice warned the Plaintiffs, and subject to this authority that the County Health Department
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could have acted (but did not). 20 ILCS 2310/2310-15. Plaintiffs do not challenge this authority, and so their request for a temporary restraining order against Administrator Beintema should be denied. IV. Equities and Public Policy Balance in Favor of Suppressing the COVID-19
Outbreak. With the filing of the newest Executive Order 2020-32, the limitations on religious expression have been relaxed. Religious worship may take place consistent with Executive Order 2020-32 in groups of fewer than 10, or via online streaming, or at drive-in sermons. However, Plaintiffs flaunt these guidelines. Pastor Cassell has ministered on the “Covid Lie,” and has instructed his congregation to appear live at church, hand to hand, cheek to cheek. He has proclaimed that he will not be bound by any government system. His leadership during this pandemic is placing the congregation in danger of outbreak. Given the risk associated with large gatherings such as the one described in the pleadings, public policy interests weigh against writing the Beloved Church a free pass without so much as an evidentiary hearing. The hardship to the Plaintiffs is relatively small; it is a hardship that many organizations bear right now. Remote services are not ideal, but Plaintiffs can, and will, minister via online live stream as they have been doing for two months. An additional week or two, or three, of online sermons will not cause so great a burden as to jeopardize the church (at least, that has not been pled).
CONCLUSION Defendants Stephenson County Sheriff Snyders and Stephenson County Public Health Department Administrator Beintema request that this court deny Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction, and for any further relief this court deems appropriate.
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Benjamin M. Jacobi, #6296811 O’Halloran Kosoff Geitner & Cook, LLC 650 Dundee Road, #475 Northbrook, Illinois 60062 T: 847-291-0200 F: 847-291-9230 bjacobi@okgc.com

DAVID SNYDERS and CRAIG BEINTEMA
/s/Benjamin M. Jacobi One of their attorneys

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Case: 3:20-cv-50153 Document #: 27 Filed: 05/01/20 Page 17 of 18 PageID #:224

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-for- )

Profit Corporation, and PASTOR STEPHEN

)

CASSELL, an individual,

)

)

Plaintiffs,

)

)

v.

)

)

JAY ROBERT PRITZKER, Governor of the State )

of Illinois, DAVID SNYDERS, Sheriff of

)

Stephenson County, Illinois, STEVE SCHAIBLE, )

Chief of Police of the Village of Lena, Illinois, and )

CRAIG BEINTEMA, Administrator of the

)

Department of Public Health of Stephenson

)

County, Illinois, in their official capacities,

)

)

Defendants.

)

Case No. 20-CV-50153 Honorable Judge Lee

CERTIFICATE OF SERVICE

I hereby certify that on May 1, 2020, I served Defendant Sheriff Snyders and Administrator Beintema’s Response to Plaintiffs’ Motion for TRO and Preliminary Injunction by filing same with the CM/ECF system, which shall provide electronic notice to the following counsel of record:

Peter Breen pbreen@thomasmoresociety.org

Martin Whittaker privaterecht@gmail.com

Christopher Wells cwells@atg.state.il.us

Dominick Lanzito dlanzito@pjmchicago.com

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Case: 3:20-cv-50153 Document #: 27 Filed: 05/01/20 Page 18 of 18 PageID #:225 DAVID SNYDERS and CRAIG BEINTEMA /s/Benjamin M. Jacobi Attorney for Defendant O’Halloran Kosoff Geitner & Cook, LLC 650 Dundee Road, Suite 475 Northbrook, Illinois 60062 Telephone: (847) 291-0200 Facsimile: (847) 291-9230
18

 
 Case: 3:20-cv-50153 Document #: 32 Filed: 05/01/20 Page 1 of 2 PageID #:239

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE BELOVED CHURCH, an Illinois notfor-profit corporation, and PASTOR STEPHEN CASSELL, an individual,

No. 20-C-50153

Plaintiffs, v.

Honorable John Z. Lee

GOVERNOR JB PRITZKER, et al.,

Defendants.

THE GOVERNOR’S SUPPLEMENTAL FILING IN RESPONSE TO THE COURT’S MAY 1, 2020 MINUTE ORDER REGARDING DRIVE-IN SERVICES (ECF NO. 16)

After filing appearances and the Governor’s brief in opposition to Plaintiffs’ motion for a

temporary restraining order (“TRO”), counsel for the Governor learned of a previously entered

minute order by the Court in which the Court asks Defendants to address “how the State defines

‘drive-in services’ and whether such services would be subject to the 10-person limitation.” (ECF

No. 16.) The Governor submits this supplemental filing to address the questions posed by the

Court.

As an initial matter, the 10-person limitation on gatherings would not apply to a drive-in

worship service. As long as congregants remain in their respective vehicles and no single vehicle

has more than 10 people, excluding a vehicle containing only members of the same household, a

drive-in service would not violate the 10-person limitation on gatherings regardless of how many

vehicles or people attended.

With respect to how a drive-in service is defined, the Current Executive Order mentions

drive-in services to incorporate by reference the approach adopted by houses of worship

throughout the country in response to the COVID-19 pandemic. See, e.g., Legacy Church, Inc. v.

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Case: 3:20-cv-50153 Document #: 32 Filed: 05/01/20 Page 2 of 2 PageID #:240

Kunkel, No. CIV 20-0327JB\SCY, 2020 WL 1905586, at *5 (D. N.M. April 17, 2020); see also Andrew R. Chow, “‘Come As You Are in the Family Car’: Drive-In Church Services Are Taking Off Curing the Coronavirus Pandemic,” TIME, March 28, 2020, https://time.com/5811387/drivein-church-coronavirus/ (last visited May 1, 2020). A drive-in service occurs when attendees drive their cars to a common location, such as a parking lot, where they can listen on their phones, radio, other electronic device, or loudspeaker, to a worship leader conduct a worship service in the same location. Worship activities, such as singing, reading of scripture, prayer, and other such activities, would all be permissible as long as congregants observe social distancing requirements by remaining in their vehicles.

Dated: May 1, 2020
KWAME RAOUL Attorney General of Illinois
R. Douglas Rees Christopher G. Wells Sarah H. Newman Kelly C. Bauer Hal Dworkin Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601

Respectfully Submitted,
/s/ Christopher G. Wells
Christopher G. Wells Chief, Public Interest Division Office of the Illinois Attorney General 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 (312) 814-1134 cwells@atg.state.il.us

2

 
 Case: 3:20-cv-50153 Document #: 33 Filed: 05/02/20 Page 1 of 24 PageID #:241

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-for- )

Profit Corporation, and PASTOR STEPHEN ) No. 3:20-cv-50153

CASSELL, an individual,

)

)

Plaintiffs,

)

)

v.

)

)

JAY ROBERT PRITZKER, Governor of the )

State of Illinois, DAVID SNYDERS, Sheriff of ) JURY TRIAL DEMANDED

Stephenson County, Illinois, STEVE )

SCHAIBLE, Chief of Police of the Village of )

Lena, Illinois, and CRAIG BEINTEMA, )

Administrator of the Department of Public Health )

of Stephenson County, Illinois, in their official )

capacities,

)

)

Defendants.

)

PLAINTIFF’S REPLY IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER

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I. INTRODUCTION1 Churches are “Essential.” When this lawsuit was filed on Thursday, Illinois was one of only 10 states to entirely
prohibit Sunday church services. In response to this suit, Defendant Pritzker added a hastily drafted paragraph allowing limited exercise of religion in his new executive order, which he had announced he would sign that day. That paragraph gave individuals the right to leave their homes to exercise their religion, but it left churches twisting in the wind: apparently no longer “nonessential,” but not “essential” either. Pritzker applied a hard cap of 10 people to churches that no “essential” business has to follow, and he applied that hard cap regardless of building size, congregation size, number of family units in a congregation, or spread of COVID-19 in a particular county or region. Facing this lawsuit, Defendant Pritzker reacted, but he did so knowing that his action would not allow Plaintiffs to hold in-person worship on Sunday morning, beyond the livestreaming they’ve been providing the past 4 weeks.
Pritzker’s defense is that religious freedoms may be trampled during emergency situations. But he has no answer to Plaintiffs’ citations and arguments that, while COVID-19 is certainly serious and an epidemic, we are well past the point where “emergency” restrictions of fundamental rights can be justified. People of faith in Illinois have waited patiently to be treated with the dignity and respect that the Constitution provides their religious beliefs and practices. Months into this epidemic, the time for waiting is over. It’s bad enough to watch churches shuttered as liquor stores operate unabated, but when your dog groomer gets better treatment than your church, the cry for “emergency” power by the executive branch must yield to the strong guarantees of the First Amendment. If there is to be an “essential” list that governs
1 Plaintiffs have addressed many of Defendants’ arguments in their opening papers and respectfully incorporate by reference their Verified Complaint, Motion for TRO, and Memo in Support herein.
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Illinois, houses of worship must be on that list, and treated equally as any “essential” place where people are gathered for commerce or manufacturing.
Just since Thursday, Defendant Pritzker has said he will “defend to the death” 1,000person, non-socially-distanced secular gatherings to occur, in flagrant violation of EO 2020-32, while he solemnly reaffirms that religious gatherings remain tightly restricted to no more than 10 people, with strict social distancing.
Moreover, Pritzker’s new order is so unreasonably restrictive that it wouldn’t even allow Pastor Cassell to bring his 8-person family to The Beloved Church, because the 5 staff members necessary to put on the services only allows room for 5 more people. The Church has numerous families that have taken seriously the biblical admonition to “be fruitful and multiply,”
Plaintiffs seek that Defendant Pritzker be enjoined from enforcing his ill-considered order against The Beloved Church and Pastor Cassell, at the very least as to the 10-person limit he has arbitrarily and selectively imposed on religious gatherings held by houses of worship.
II. STATEMENT OF ADDITIONAL FACTS RELEVANT TO DEFENDANTS’ RESPONSES A. Relevant Facts Since the Filing of The Lawsuit and TRO Motion Plaintiffs’ Verified Complaint, TRO Motion, and Memo were filed and sent to the
Attorney General around noon on Thursday. At his daily 2:30 p.m. press conference, Defendant Pritzker was asked several questions
about this lawsuit. His answer was to encourage pastors to continue using Zoom to stream worship services and “make sure that [parishioners are] staying home.” When asked “how far will you go to enforce the stay at home” if Pastor Cassell holds services, Pritzker answered that Pastor Cassell is “an outlier” and stated that “we’re gonna keep doing what we need to do to
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keep people safe.” See, https://capitolfax.com/2020/04/30/ezike-and-pritkzer-talk-testing-65new-test-sites-open-pritzker-talks-about-may-1-easing/.
At 3:24 p.m., this Court entered an order instructing the parties to meet and confer to explore a standstill agreement. Defense counsel sent the Court’s order to all parties and counsel by 4 p.m.
At some point early Thursday evening, Defendant Pritzker’s latest executive order, EO 2020-32 was executed and filed. EO 2020-32, like its predecessors, forbids Illinoisans from leaving their homes, (sec. 2, par. 1), other than for certain “essential activities,” and defines all non-profit and for-profit entities in the state as “businesses,” (sec. 2, par. 11), dividing them into “essential” businesses2 and operations that are allowed to be open and “non-essential businesses” that must close (sec. 2, par. 2).
EO 2020-32 as executed differed in relevant part from the version released to the public a few days earlier, by adding subparagraph 5(f), which allows residents to leave their homes “to engage in the free exercise of religion, provided that such exercise must comply with Social Distancing Requirements and the limit on gatherings of more than ten people . . . .” This new paragraph states that, “Religious organizations and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregants.” The EO, and its predecessors, allowed “religious organizations” to operate only “when providing food, shelter, and social services,” etc., but not when providing worship services. See, par. 12(c) (“Essential Businesses and Operations”). The term “houses of worship” is new in EO 2020-32 and used only
2 Once a business qualifies as “essential,” it may generally engage in “non-essential” operations, unless otherwise restricted. For instance, because large stores may supply essentials, they can sell even nonessential products, while local smaller retailers must close. For instance, grocery stores can sell flowers, but florists must close. 7-Eleven can sell cigarettes, but tobacco shops must close. Target can sell clothes and shoes, but local clothing boutiques and shoe stores must close. See, https://www2.illinois.gov/dceo/Documents/Essential%20Business%20FAQ.pdf
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once, in the last sentence of subparagraph 5(f). The status of “houses of worship” is otherwise in limbo, as “houses of worship” (and “religious organizations” when providing worship services) do not enjoy the same benefits as the laundry list of so-called “essential” businesses and operations in EO 2020-32, which includes everything from liquor stores to dog groomers.
On Friday morning, “hundreds packed the plaza in front of the Thompson Center” and “nearly 1,000 people st[ood] side-by-side” at the State Capitol in Springfield, in protest against Defendant Pritzker’s executive orders. See, https://www.fox32chicago.com/news/protestersstatewide-demand-governor-pritzker-reopen-illinois. The protestors were in open and flagrant violation of EO 2020-32’s provisions requiring “social distancing,” including the 6-foot spacing and face mask requirements, and prohibiting gatherings of more than 10 people (or of anyone outside one’s household). However, no order to disperse, or any enforcement action at all, was reported to have been taken against the protestors, despite the fact that they were present on State of Illinois property, outside Defendant Pritzker’s offices.
Pritzker was asked about the protests at his daily 2:30 p.m. press conference at the Thompson Center. The questioner confirmed that “there’s a rather large crowd they’ve been here all day.” See, https://capitolfax.com/2020/05/01/pritzker-talks-contact-tracing-introduces-newacting-chief-epidemiologist/. In his answer, Pritzker confirmed that, “they’re exercising the right to free speech and we ought to defend to the death their right to exercise that right, even when they’re wrong.” However, Pritzker did not take such a protective view of the Free Exercise Clause when asked about this lawsuit and EO 2020-32, stating that, “we want to make it more explicit that you can worship in a group of 10 or less just as you could as long as you’re socially distancing.”
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And on Friday, Pritzker announced the full decommissioning of the McCormick Place field hospital, which had been constructed with 3,000 beds, and previously reduced to 1,000 beds, issuing a joint statement with Chicago Mayor Lori Lightfoot that, “Today, we are pleased to report that the curve is flattening, and our local hospitals and health care systems continue to operate with capacity,” Lightfoot and Pritzker said in a joint statement.” See, https://news.wttw.com/2020/05/01/field-hospital-mccormick-place-will-close-after-treating-fewpatients-curve-bends. McCormick Place treated just 29 patients. Id.
Then, on Friday afternoon at 5 p.m., Defendants filed their responses, which reaffirmed their stance that EO 2020-32 binds Plaintiffs and forbids them from holding Sunday worship services with more than 10 people in attendance. Despite rejecting a standstill agreement earlier on Friday, Defendants Schaible, Snyders, and Beintema3 affirmatively stated in their filings that they will not enforce EO 2020-32 against The Beloved Church’s services this Sunday. Defendant Pritzker is silent on enforcement. Pritzker also clarified that he is applying his 10-person gathering limit to drive-in services, but measuring that limit per car with an exemption for families of more than 10 people.4
Late last night, NBC 5 Chicago reported that deaths at long-term care facilities account for 44 percent of all coronavirus fatalities in the state. See, https://www.nbcchicago.com/news/local/nbc-5-investigates-44-percent-of-il-coronavirus-deathstied-to-nursing-homes/2265342/. According to the latest statistics from IDPH, Stephenson County has not yet experienced any COVID-19 deaths. See,
3 Although Beintema has not revoked his Cease and Desist Notice or committed he would not take action in the future against Plaintiffs under the IDPH Act. 4 None of these clarifications are even hinted at in the text of his hastily added “free exercise” paragraph in EO 2020-32.
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https://coronavirus.illinois.gov/s/county-map. Cook County accounts for almost 70% of the deaths from COVID-19, despite comprising roughly 40% of Illinois’ population. Id.
B. In-person Sunday services are an essential part of The Beloved Church’s very existence. “A congregation that does not celebrate, pray, and gather inperson regularly cannot claim to be a scriptural Christian congregation.”
After he was served with the “Cease and Desist Notice” a month ago, Pastor Cassell was obedient to its command to “adhere” to the provisions of defendant Pritzker’s executive orders, and he has not allowed in-person Sunday services for the last four weeks. See, Declaration of Pastor Cassell (submitted herewith) at ¶ 4. As a matter of doctrine, that interruption in the personal convening of the congregation, and interruption in celebrating Sunday services, is an interruption in the very existence of the The Beloved Church congregation. Id., at ¶ 2 - 4. That doctrine derives from the provisions of scripture. Id. As Pastor Cassell says: “A congregation that does not celebrate, pray, and gather in-person regularly cannot claim to be a scriptural Christian congregation.” Id., at ¶ 3.
Sunday services live-streamed to congregation members, and drive-in services do not comply with scriptural command, either. Id., at ¶¶ 4-5.
C. In-person Sunday services at The Beloved Church can be held without a 10person limit as safely as the work of any Essential Business or Operation, or the Basic Minimum Functions of non-essential entities (which have no such restriction).
EO 2020-32 imposes a 10-person limit on gatherings for “the free exercise of religion.” At sec. 2, ¶13.vi. It does not impose such a restriction on any other Essential Business or Operation, and does not impose it on the “Minimum Basic Operations” of even non-essential businesses. EO 2020-32 at sec. 2, ¶30.
That 10-person limit, however, does not make churches, or at least The Beloved Church, any more socially-distanced than those other essential and non-essential businesses. Cassell
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Declaration, at ¶¶6-11. That is so because, even with maximum normal attendance at a Sunday service, the Lena church building has enough space to keep individuals, and households attending together as a unit, six-feet part. Id., ¶¶9-11. Pastor Cassell can, and will, provide masks and hand sanitizer for everyone attending, to. Id., ¶¶7-8.
Moreover, Pastor Cassell is a Christian minister, to his congregation, and to everyone he encounters. “I have a deep, genuine, heartfelt concern for every person who sets foot on the property of The Beloved Church. Because of that, I will do everything in my power that is permitted and congruent with scriptures to protect the health, safety and well being of the participants through the entirety of their being --- spirit, soul, and body.” Id., ¶6.
Because Pastor Cassell can exercise some control over the movement of congregation members -- unlike at some large, retail “essential businesses” where movement of customers is hard to control -- it is, in fact, more feasible for people attending in-person Sunday services at The Beloved Church to keep the six-foot distancing. Id., at 11. And controlling an 80-person gathering at a small-town church is far easier than controlling the workforce of an essential business like a factory, which Pastor Cassell has confirmed with a local worker5 at a large Stephenson County tire manufacturer. It is simply impossible -- and is not reasonably expected -- for every person to keep a 6-foot distance when one shift clocks out, and another clocks in, for instance. Id., at ¶14. III. ARGUMENT
A. Likelihood of Success on the Merits As an initial matter, a preliminary injunction would not give Plaintiffs all the relief they seek (Pritzker Br. at 6). Defendant Pritzker has frequently extended his COVID-19-related executive orders and has given no sense of when they may end, nor any concrete public plan for
5 Hearsay can be considered for a Preliminary Injunction or Temporary Restraining Order, Securities and Exchange Commission v. Cherif, 933 F.2d 403, 412 n. 8 (7th Cir. 1991)
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re-opening churches. Numerous public gatherings and events have been called off well into the Summer, and it is widely reported that many fear a resurgence of coronavirus in the Fall. Considering Pritzker’s hostility to religious freedom, as pled and demonstrated repeatedly in Plaintiffs’ Verified Complaint, along with the erratic nature of his last-minute addition of (arbitrarily limited) “free exercise” language to EO 2020-32, no one knows when Pritzker’s orders against churches will be lifted. See Broucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 827 (7th Cir. 1998). But even so, Plaintiffs would meet this standard anyway.
1. Plaintiffs’ claims are not moot. Defendant Pritzker argues Plaintiffs’ claims are now moot because the executive orders they attacked are no longer in effect. (Pritzker Br. at 1.) But Plaintiffs repeatedly cited Pritzker’s upcoming announced EO, and the change made by Pritzker to the EO prior to execution still does not allow Plaintiffs to have their in-person Sunday worship services.6 The harm remains. The fate of Plaintiffs’ ability to materially exercise their constitutional rights still hangs in the balance and thus their claims are not moot. Plaintiffs’ Complaint indeed alleged Governor Pritzker’s earlier Orders failed to include churches on the list of “essential businesses” (Pritzker Br. at 1-2), and Executive Order 2020-32 retains that deficiency. The new EO allows individuals to leave their homes for “free exercise,” and it names and appears to grant some rights to “houses of worship,” but EO 2020-32 casts them into limbo, apparently better than “non-essential” but still not worthy of being called “essential.” None of the new language in EO 2020-32 materially alters the basis of Plaintiffs’ claims. Specifically, Plaintiffs made clear that the earlier Orders prevented them from holding
6 Obviously, Plaintiffs did not anticipate that Defendant Pritzker would read their Verified Complaint and change his EO in a way that attempts to strengthen his litigation position, while still depriving Plaintiffs of their requested relief: that they be allowed in-person worship with their congregation.
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regular Sunday church services with approximately 80 attendees. Complaint at ¶¶27, 72. They noted that essential activities like going to Menards and Walmart often have gatherings of more than 10 people and thus receive better treatment than in-church services. Complaint at ¶52. They noted the lack of any “numerical constraint[s] at all on attendance at alleged ‘essential businesses and operations,’ such as retail businesses, including the Pritzker liquor stores and big box stores, manufacturing facilities, and the like.” Memo in Supp. of TRO at 9. Their constitutional claims hinged on these inequities---all of which remain under Executive Order 2020-32.
“As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016), quoting Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013)). And here “the parties remain[] adverse; both retain[] the same stake in the litigation they had at the outset.” Gomez, 136 S. Ct. at 665. Plaintiffs still seek equal treatment with essential activities exempt from the 10-person rule. Governor Pritzker still seeks to limit gatherings (at least of these Plaintiffs) for the purported reason of stopping COVID-19. Like the exception to the mootness rule for cases “capable of repetition yet evading review” (which is not at play here), Plaintiffs “have a reasonable expectation of suffering from the same harm” as under the earlier orders. Stotts v. Cmty Unit Sch. Dist. No. 1, 230 F.3d 989, 991 (7th Cir. 2000); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (noting that a case becomes moot upon a defendant’s voluntary cessation of a challenged practice only if “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” (quoting United States v. Concentrated Phosphate Export Assn., 3939 U.S. 199, 203 (1968)).
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Because the face of Executive Order 2020-32 retains the same material harms challenged in the earlier orders, Plaintiffs’ claims are not moot.7
2. Defendant Pritzker wrongly justifies his actions under Jacobson before considering Plaintiffs’ substantive constitutional arguments.
Defendant Pritzker argues that his authority to limit in-church services to no more than 10 people is justified under Jacobson v. Massachusetts, 197 U.S. 11 (1905) before ever considering the contours of Plaintiffs’ federal constitutional claims. (Pritzker Br., 8-14.) But that begs the question, assuming without explaining that restricting in-church services to no more than 10 people is “required to protect defendant Pritzker from destruction,” Whitney v. California, 274 U.S. 357, 373 (1927) (emphasis added) (Brandeis J., concurring) or “necessary to further important government interests,” Int’l Soc. For Krishna Consciousness v. Rochford, 585 F.2d 263, 271 (7th Cir. 1978) (emphasis added). (Pritzker Br. at 10.) But Plaintiffs’ constitutional claims hinge on the necessity of defendant Pritzker’s restrictions (or lack thereof) on in-church services, and thus failure to consider these claims before concluding that Jacobson trumps all was erroneous. See United States v. Chalk, 441 F.2d 1277, 1280-81 (4th Cir. 1991) (reciting the traditional intermediate-scrutiny standard for incidental restrictions on speech before stating: “The limitation on the use of emergency powers by the executive is essentially the same,” and that it actually “must appear to have been reasonably necessary for the preservation of order” (emphasis added)).
Although defendant Pritzker argues that (1) the Current Executive Order and related directives were a good-faith response to the imminent threat of COVID-19 (citing isolated
7 Although Plaintiffs’ Complaint sought injunctions against only Executive Orders 2020-10 and 2020-18, they of course also sought “such further relief as the Court may deem just and proper.” Complaint at p. 32. Enjoining Executive Order 2020-32 would be just and proper here where it was adopted shortly after Plaintiffs filed their Complaint, contains materially identical harms, and re-pleading and -briefing these issues would be redundant.
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incidents of church-related spread in March 2020 before medical providers were equipped to handle the influx of new cases); (2) prohibiting public gatherings of more than 10 people is “indispensable” to its strategy, particularly in-church services where speaking loudly and singing can spread the disease;8[1] and (3) numerous other federal courts have recently denied injunctive relief to emergency suits against COVID-19-related government actions, (Pritzker Br. at 12-14), Jacobson requires more.
Specifically, Jacobson explained that while governments can validly enact libertyinfringing restrictions (like the universal vaccine law at issue there) to stop the spread of diseases (like the Smallpox in Cambridge, Mass., at issue there), it cannot do so in “an arbitrary, unreasonable manner,” or in a way that “go[es] so far beyond what was reasonably required for the safety of the public.” Jacobson, 197 U.S. at 28. Thus, when evaluating challenges to laws “purporting to have been enacted to protect the public health, the public morals, or the public safety,” courts must ask whether the law “has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. (emphasis added). In other words, Jacobson is not separate from Plaintiffs’ constitutional claims, but is shot through them. See, e.g., In re Abbott, 954 F.3d 772, 790 (5th Cir. 2020) (concluding, in part, that courts considering Texas’s COVID-19-related temporary restriction on elective abortions must ask whether it was “beyond all question” an undue burden under the precise undue burden test required by the Supreme Court). This court should proceed accordingly.
3. The Orders—especially the EO 2020-32—are not neutral or generally applicable.
8 Indeed, the word “church” is derived from the word “ecclesia,” which means an assembly. See Ecclesia, Dictionary.com, https://www.dictionary.com/browse/ecclesia (last visited May 2, 2020).
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Defendant Pritzker argues the Orders are neutral and generally applicable under the Free Exercise Clause because the EO 2020-32 specifically accommodates church services and because church services are not like the exceptions from the 10-person rule for places like Walmart, Menards, liquor stores, and manufacturing plants. Amazingly, he also deigns to argue the restriction is not an undue burden on Plaintiffs’ religious exercise because watching church services via Facebook while locked up in one’s home is an “ample alternative means” of community worship. All of these arguments are painfully backward: A law that burdens churches uniquely -- even “non-essential” businesses do not have this burden for their “Minimum Basic Operation” (sec. 2, ¶30) -- simply cannot be an accommodation.
First, the EO 2020-32 specifically targets, not accommodates, church services because it makes them the only Essential Activity effectively subject to the 10-person maximum requirement. (EO 2020-32 at Sec. 5(vi).) Although the Orders generally purport to forbid “any gathering of more than ten people,” the restriction applies “unless exempted by this Executive Order.” (Id. at Sec. 2(3).) The Orders then immediately list many exempted activities that are effectively exempt from (and are inarguably not singled out as subject to) the 10-person maximum rule. (Id. at Sec. 2(4)-14.) Indeed, unlike the previous Orders, EO 2020-32 imposes a new restriction that “retail stores” like Walmart and Menards cap their occupancy at 50 percent of store capacity or at the occupancy limits based on store square footage set by the Department of Commerce and Economic Security. (Id. at Sec. 1(2).) This new restriction gives the lie to defendant Pritzker’s argument that the EO 2020-32 “applies broadly to prohibit public gatherings of more than 10, both religious and secular.” (Pritzker Br. at 16) That’s because 50 percent of capacity in many retail stores will often be far more than 10 people, and because it took a
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Case: 3:20-cv-50153 Document #: 33 Filed: 05/02/20 Page 14 of 24 PageID #:254
specific limitation on “retail stores” to clarify that, unlike every other exempted activity (other than churches) they are not completely free of the restrictions on gatherings sizes.
Notwithstanding Defendant Pritzker’s arguments, this case is on all-fours with First Baptist Church v. Kelley, No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. April 18, 2020), where the court held that Kansas Executive Order 20-18 was non-neutral because it included “churches or other religious facilities” within a prohibition on mass gatherings and specifically prohibited churches from having gatherings of more than 10 congregants or parishioners. First Baptist Church, 2020 WL 1910021 at *2, *7. The court ruled that “while these executive orders begin with a broad prohibition against mass gatherings, they proceed to carve out broad exemptions for a host of secular activities, many of which bear similarities to the sort of personal contact that will occur during in-person religious services.” Id. at *5; see also id. at *2 (noting exemptions for childcare locations, hotels, food pantries and shelters, detoxification centers, shopping malls, restaurants, bars, retail food establishments, office spaces, manufacturing, processing, distribution, and production facilities). While defendant Pritzker argues that unlike in First Baptist Church, here religious services are not specifically listed among “prohibited activities” but are rather granted an accommodation, (Pritzker Br. at 19), this overlooks the fact that free exercise of religion is the only exempted activity specifically subject to the 10-person maximum. Thus, “churches and religious activities appear to have been singled out among essential functions for stricter treatment.” First Baptist Church, 2020 WL 1910021 at *7. It also appears that, again contrary to defendant Pritzker’s argument, (Pritzker Br. at 20), the face of the EO 2020-32 pursues its restriction on gatherings of more than 10 people “only [against] conduct motivated by religious belief.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
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Case: 3:20-cv-50153 Document #: 33 Filed: 05/02/20 Page 15 of 24 PageID #:255
U.S. 520, 545 (1993).9 The EO 2020-32 thus targets in-church services for discriminatory
treatment and is therefore “beyond all question” not neutral with respect to the free exercise of
religion.
The Order is also clearly not generally applicable. Defendant Pritzker misses the point
(and looks down his nose at religion) when he says that unlike churches, stores like Walmart and
Menards are essential to the “day-to-day infrastructural needs of a society.” (Pritzker Br. at 17.)
No one denies that secular stores are important. But the Supreme Court’s precedent requires
evaluating whether the EO 2020-32 “fail[s] to prohibit nonreligious conduct that endangers” its
interest of protecting the community from COVID-19 “in a similar or greater degree than [in-
church services] do[].” Lukumi, 508 U.S. at 543; see also Fraternal Order of Police Newark
Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999) (Alito, J.) (holding that medical
exemption from police department’s no-beard policy rendered the policy substantially
underinclusive as to its purpose of achieving police uniformity and thus non-generally applicable
as to claimant seeking exemption to grow religious beard). If so, the Order is substantially
underinclusive and thus non-generally applicable. Lukumi, 508 U.S. at 543. And even in the
quotation he uses from Legacy Church, Inc. v. Kunkel, 2020 WL 1905586 at *40 (D. N.M. Apr.
9 This aspect of EO 2020-32 distinguishes it from other orders cited by defendant Pritzker’s Br. (at 20) where courts have rejected free-exercise claims based on in-person church restrictions, which did not single out religious gatherings for disparate treatment. See Gish v. Newsom, 2020 WL 1979970 at *2 (C.D. Cal. April 23, 2020) (churches subject to the same prohibition on “All public or private gatherings,” to the same extent, as auditoriums or “any other indoor or outdoor space used for any non-essential purpose”); Maryville Baptist Church, Inc. v. Beshear, 2020 WL 1909616 at *1 (W.D. Kent. April 18, 2020) (churches subject to the same prohibition on “mass gatherings,” to the same extent, as “community, civic, public, leisure, faith-based, or sporting events . . . or other similar activities”); Legacy Church, Inc. v. Kunkel, 2020 WL 1905586 at *7 (D. N.M. Apr. 17, 2020) (churches eventually singled out for the purpose of being made subject to general prohibition on “any public or private gathering that brings together five (5) or more individuals in a single room or connected space, confined outdoor space or an open outdoor space where individuals are within six (6) feet of each other”). And Plaintiffs here have provided unassailable factual support, in both their Verified Complaint and Declaration, as to why their church and its services are similar to, or less likely to spread infection, than other so-called “essential” businesses that do not have the 10-person gathering limit.
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17, 2020), Pritzker cannot credibly claim that liquor stores and pet groomers are so “necessary to everyday life or to facilitate the mitigation of COVID-19”--much less more necessary than churches--as to justify shredding the Constitution.
Defendant Pritzker argues that church services are a “communal experience” and thus “fundamentally different” from shopping at retail or grocery store. (Pritzker Br. at 18.) In Maryville Baptist Church, Inc. v. Andy Beshear, No. 20-5427 (6th Cir. May 2, 2020), the Sixth Circuit held that the church and its pastor were likely to succeed on the merits of their claim for a TRO against Kentucky executive orders restricting drive-in and in-person church services. The court held that plaintiffs were likely to succeed on their Free Exercise of Religion claim under the First Amendment because "many of the serial exemptions for secular activities pose comparable public health risks to worship services." Slip. Op. at 8. As the Sixth Circuit said: "Why can someone safely walk down a grocery store aisle but not a pew?" So, too, here.
But even if true, it doesn’t render their “logistics” substantially different in slowing the spread of COVID-19. At stores, people are generally in frequent movement in and around fellow shoppers, and they necessarily physically handle and pick up items that have been stocked on the shelves by other potential COVID-19 carriers.10 Often they push shopping carts and use baskets that have been handled by others, and frequently they use touch screens at automatic check-out counters that are not necessarily de-sanitized between users. In contrast, the church services do not inherently involve any touching and people often sit and stand in stationary locations for the duration of the service. Pastor Cassell plans to follow and promote EO 2020-32’s Social
10 These harms still exist under Executive Order 2020-32’s new requirement that retail stores set up conspicuously marked one-way aisles to increase traffic flow and social distancing. See EO 2020-32 at Sec. 1(2). Customers are presumably still free to stop in aisles while others walk or stop close by to pick up similar items, etc. In short, movement about the store and among other customers is still allowed, whereas Plaintiffs’ parishioners generally remain stationary in their positions throughout his church services.
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Distancing Guidelines to his congregation, including seating arrangements that ensure all family units are separated by at least six feet. (Cassell Dec. at ¶ ¶ 7, 10.) He will provide face coverings and masks to every person in his church who doesn’t have one. (Cassell Dec. at ¶ 8.) He will have hand sanitizer at all entrances and exits and throughout the building in sufficient quantities for everyone to use. (Cassell Dec. at ¶ 9.) He has instructed his congregation that anyone with various contacts with those exposed to COVID-19, or anyone who is particularly susceptible to the virus, should stay home. (Cassell Dec. at ¶ 11.) He also notes that the main sanctuary of his church is 3,600 square feet and can hold up to 200 people, even though only 60 to 80 people usually show up for his Sunday service, and additional seating is available in the balcony. (Cassell Dec. at ¶ 14.)
It’s clear the in-church services contemplated by Pastor Cassell do no more harm to the government’s interests than people roaming about and touching things at big box stores—not to mention the voluminous list of other activities exempted from the 10-person limit. (See Cassell TRO Memo at 9 (noting exemption for liquor stores which are often smaller and require patrons to be in close proximity to one another)); (See Complaint at ¶ 53 (noting Pastor Cassell observes that Snak King, one of the largest snack food manufacturers in the country, operates a plant in Stephenson County that routinely has dozens if not hundreds of persons on site).) See also First Baptist Church, 2020 WL 1910021 at *7 (“The legitimate health and safety concerns arising from people attending religious services inside a church would logically be present with respect to most if not all these other essential activities.”). Thus, the Orders are “beyond all question” substantially underinclusive and therefore non-generally applicable.
Finally, Defendant Pritzker gratuitously (and shockingly) argues that forbidding Pastor Cassell’s church to gather with more than 10 people is not a serious burden on Plaintiffs’
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religious beliefs because, in recent months and years, Pastor Cassell has offered online religious services or podcasts (as Defendant Pritzker digs up), which are presumed to be “ample alternatives.” (Pritzker Br. at 21.) This argument “in effect tell[s] the plaintiffs that their beliefs are flawed,” which is a step the Supreme Court “has repeatedly refused to take.” Burwell v Hobby Lobby Stores, Inc., 573 U.S. 682, 724 (2014). Defendant Pritzker offers no evidence undermining the sincerity of Pastor Cassell’s belief that “[a] congregation that does not celebrate, pray, and gather in-person regularly cannot claim to be a scriptural Christian congregation,” Cassell Declaration at ¶ 3, particularly at this stage in the fight against COVID-19. See, e.g., Complaint at ¶ 69 (“[T]he epidemic is in a much different place today than it was on March 9, 2020. At this point, it is widely reported that the coronavirus epidemic ‘curve’ has been substantially “flattened” statewide.”). It is thus “not for [this court] to say that [Pastor Cassell’s] religious beliefs are mistaken or insubstantial,” but merely “to determine whether the line drawn [by Plaintiffs] reflects an honest conviction, and there is no dispute that it does.” Burwell, at 725 (internal quotations and citations omitted). Indeed, Defendant Pritzker’s logic would force Christians back to the underground catacombs—as long as worship therefrom could be adequately livestreamed. While these are strange and singular times indeed, it is baffling that Defendant Pritzker would have the gall to make such an argument. This court should reject it out of hand.
As to strict scrutiny, “[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Lukumi, 508 U.S. at 546. Such a law “must advance interests of the highest order and must be narrowly tailored in pursuit of those interests.” Id. (internal quotations omitted). Executive Order 2020-32 does neither. It comes nowhere close to advancing an interest “of the highest order” at this stage in the fight
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against COVID-19. “Flattening the curve” to preserve hospital capacity was the principal reason for Defendant Pritzer’s original restriction on churches, and that aim has now been achieved. Yet Defendant Pritzker’s orders continue to prohibit churches from gathering in numbers greater than 10 within social distancing consistent with their fundamental constitutional rights. Additionally, Executive Order 2020-32 remains entirely untailored to geographical or individual circumstances, while allowing voluminous exemptions from the 10-person rule for all manner of activities that often involve more person-to-person interaction, and thus greater risk of spreading COVID-19, than Plaintiffs’ socially distant in-church services. “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. at 547. Executive Order 2020-32 thus easily fails strict scrutiny.
4. Defendant Pritzker’s Orders Continue to Violate the Freedom of Speech and Assembly.
Executive Order 2020-32 is clearly a content-based regulation because it regulates religious speech and assembly based on content. And, like its predecessors, it is not a reasonable time, place, or manner restriction on Plaintiffs’ speech.
Defendant Pritzker woefully fails to conjure the proper standard for determining content neutrality. He states that “[t]he principal inquiry . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys,” even though the Supreme Court recently declared “this analysis” is based on a misinterpretation of Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) and “skips the crucial first step in the contentneutrality analysis: determining whether the law is content neutral on its face.” Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2228 (2015). A facial distinction defining regulated speech by its subject matter, function, or purpose is content based and subject to strict scrutiny. Id. at 2227.
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Here, Executive Order 2020-32 limits “the free exercise of religion” and thus the religious expression inherent therein to gatherings of no more than 10 people, without specifically requiring any other exempted activity to adhere to the 10-person requirement. Religious speech (as opposed to lawyers’ speech, doctors’ speech, media’s speech, and others) is thus singled out because of its religious subject matter for a special restriction. The cases cited by Defendant Pritzker which held that laws not regulating speech by reference to content are indeed content neutral, (Pritzker Br. at 24-25) are thus plainly inapposite. Executive Order 2020-32 is plainly a content-based regulation of speech triggering strict scrutiny.
Even if Executive Order 2020-32 is content neutral, it is, like its predecessors, an unreasonable restriction on speech and assembly and thus still unconstitutional. Defendant Pritzker bizarrely cites cases holding that regulations of conduct are not regulations of speech for the idea that the Free Speech Clause is not even at issue here. (Pritzker Br. at 25.) But even those cases involved incidental speech restrictions that still had to undergo intermediate scrutiny. See, e.g., Menotti v. City of Seattle, 409 F.3d 1113, 1130 (9th Cir. 2005).) Content-neutral restrictions on speech and assembly must be narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. McCullen v. Coakley, 573 U.S. 464, 477 (2014). Defendant Pritzker’s Orders easily fail this test.
The Orders are not narrowly tailored because they completely forbid churches from having in-church services with more than 10 people despite allowing, as discussed above, numerous other activities to have gatherings of more than 10 people as long as they comply with social distancing guidelines. These voluminous exemptions show that restricting Plaintiffs’ gatherings to no more than 10 people, even though they too promise to abide by social distancing guidelines, “burden[s] substantially more speech than is necessary to further the government’s
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legitimate interests,” McCullen, 573 U.S. at 486 (alteration added) (quoting Ward, 491 U.S. at 799). This by definition means the order is not narrowly tailored. Nor does it leave open “ample alternatives” channels of communication, given Plaintiffs’ religiously compelled need to assemble in order to adequately carry out their religious expression—particularly at this stage when Defendant Pritzker has declared that his efforts have “bent the curve” of COVID-19. Defendant Pritzker’s Orders thus fail intermediate scrutiny and are not, under Jacobson, in “substantial relation” to furthering the government’s end goals. Jacobson, 197 U.S. at 28. They are thus not justified exercises of government power, in plain and palpable contravention of Plaintiffs’ First Amendment rights.
B. Irreparable Harm Defendant Pritzker doubles down on his position that forbidding Plaintiffs from holding in-church worship services is not a serious, and thus irreparable, harm. (Pritzker Br. at 29.) He argues that “[w]hile in-person services of more than 10 people have been restricted, the practice of religion has not been,” and that in-person services are merely a “preference” and easily substituted by online livestreaming, podcasts, and the like. (Pritzker Br. at 30.) Once again Governor Pritzker is shockingly tone deaf to the requirements of the U.S. Constitution and the limits of the federal judiciary. To repeat, the Supreme Court has made crystal clear that courts have no right to “to say that the line [Pastor Cassell] drew was an unreasonable one.” Thomas v. Review Bd. Of Indiana Emp. Sec. Div., 450 U.S. 707, 715 (1981). And here there is no doubt Pastor Cassell sincerely believes that regular in-person church services are “scripturally mandated.” Cassell Dec. at ¶¶2, 3. Contrary to Governor Pritzker’s argument, Pastor Cassell has also made clear that it is not feasible for his church to hold drive-in church services. Cassell Dec. at ¶5. Furthermore, Plaintiffs abided by the previous orders for several weeks before it was
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widely reported that the coronavirus epidemic “curve” has been substantially “flattened” statewide. Complaint at ¶69. Yet they still remain restricted, while Menards, Walmarts, and all manner of other businesses can have far more than 10 people roaming about and gathering in their confines. This substantial underinclusiveness and lack of narrow tailoring effects a “loss of First Amendment freedoms for even minimal periods of time, unquestionably constitute[ing] irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
C. Balance of Harms Defendant Pritzker argues the balance of harms tips in his favor because of the number of new reported COVID-19 cases reported in Illinois and the national total number of deaths. (Pritzker Br. at 30-31.) But Governor Pritzker has declared “[w]e have bent the curve,” supra n. 4 and accompanying text, and early predictions of “millions” of dead Americans as a result of COVID-19, (Pritzker Br. at 12) have been realized as wildly inaccurate. Plaintiffs promise to maintain social distancing and to wear and handout facemasks. The harm in allowing them to have in-person church services within these restrictions is thus no greater than the harm in allowing other exempted activities to operate within these same restrictions. It again doesn’t help Defendant Pritzker to double down on his belief that Plaintiffs “will not suffer irreparable harm because technology allows” livestreaming and remote church services via Zoom and other online platforms. (Pritzker Br. at 31-32.) These are no remedy for in-person church services or for the irreparable harm done to Plaintiffs’ constitutional rights, as shown above. The harm Plaintiffs “would suffer without the injunction is greater than the harm” Governor Pritzker would suffer with the injunction, Mich. v. U.S. Army Corps of Eng’g, 667 F.3d 765, 769 (7th Cir. 2011), thus tilting the balance in their favor.
D. Public Interest
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Here, Plaintiffs have shown a substantial likelihood of success on the merits of their constitutional claims, and, once again, “injunctions protecting First Amendment freedoms are always in the public interest.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). The public interest is thus furthered by entry of an injunction for Plaintiffs. IV. CONCLUSION
For the foregoing reasons, this Court should grant Plaintiffs’ motion for a Temporary Restraining Order against Defendants from enforcing Executive Order 2020-32 against Plaintiffs.
Respectfully submitted, /s/Peter Breen Peter Breen Thomas Brejcha Martin Whittaker THOMAS MORE SOCIETY 309 W. Washington St, Ste. 1250 Chicago, IL 60606 (312) 782-1680 pbreen@thomasmoresociety.org tbrejcha@thomasmoresociety.org mwhittaker@thomasmoresociety.org Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE The undersigned attorney for Plaintiffs certifies that on May 2, 2020, I served Plaintiffs’ Reply in Support of Their Motion for Temporary Restraining Order and Preliminary Injunction by filing it with the CM/ECF system, which shall provide electronic notice to the following lead counsel of record: Christopher Wells cwells@atg.state.il.us LEAD ATTORNEY FOR JAY ROBERT PRITZKER Benjamin Matthew Jacobi Bjacobi@okgc.com LEAD ATTORNEY FOR DAVID SNYDERS and CRAIG BEINTEMA Robert C. Pottinger Rcpottinger@bslbv.com LEAD ATTORNEY FOR STEVE SCHAIBLE
/s/Peter Breen
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 Case: 3:20-cv-50153 Document #: 34 Filed: 05/02/20 Page 1 of 8 PageID #:265

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-for- )

Profit Corporation, and PASTOR STEPHEN ) No. 3:20-cv-50153

CASSELL, an individual,

)

)

Plaintiffs,

)

)

v.

)

)

JAY ROBERT PRITZKER, Governor of the )

State of Illinois, DAVID SNYDERS, Sheriff of ) JURY TRIAL DEMANDED

Stephenson County, Illinois, STEVE )

SCHAIBLE, Chief of Police of the Village of )

Lena, Illinois, and CRAIG BEINTEMA, )

Administrator of the Department of Public Health )

of Stephenson County, Illinois, in their official )

capacities,

)

)

Defendants.

)

DECLARATION OF PLAINTIFF STEPHEN CASSELL IN SUPPORT OF PLAINTIFFS’ MOTION
FOR TEMPORARY RESTRAINING ORDER 1. As the Pastor of The Beloved Church, I am the principal authority regarding its functions, and its services and rites. I consult with the Church’s board of directors regarding non-doctrinal matters, but as to doctrinal matters, being an ordained minister and Church Pastor, I consult the scriptures to conform doctrine to the scriptures. 2. I regard weekly, Sunday, in-person services, with the Church members assembled in our church building as a congregation, to be an essential, scripturally mandated part of the continuing existence of The Beloved Church. Not only is this doctrine of the congregation integral to all of the church teachings, this, too, is essential for us to experience as the congregation of The Beloved Church.
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3. For the last four Sundays -- April 5, 12, 19, and 26, 2020 -- the Beloved Church has had no in-person Sunday services. Doctrinally, I regard this as a violation of the Church’s existence as a Christian congregation. A congregation that does not celebrate, pray, and gather in-person regularly cannot claim to be a scriptural Christian congregation.
4. For the last four Sundays, I have preached and celebrated the rites of Sunday services myself and live- streamed all of that to interested members of the Church’s congregation on the internet. But none of that complies with the scriptural mandate to have in-person services.
5. It is not feasible to conduct drive-in services on The Beloved Church’s property in Lena. We do not have a parking lot that can accommodate such services. I believe and teach that such drive-in services do not comply with the scriptural mandate for in-person Sunday services.
6. I have a deep, genuine, heartfelt concern for every person who sets foot on the property of The Beloved Church. Because of that, I will do everything in my power that is permitted and congruent with scriptures to protect the health, safety and well being of the participants through the entirety of their being --- spirit, soul, and body.
7. While I believe the government has no power to impose worship requirements by force of law and threat of criminal prosecution on a church, I have accepted EO 2020-32’s Social Distancing Requirements as guidelines for my congregation’s upcoming Sunday worship services.
8. To that end, I have purchased and will provide face coverings or masks to any congregation member who doesn’t have one at our in-person Sunday services in the church building.
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Case: 3:20-cv-50153 Document #: 34 Filed: 05/02/20 Page 3 of 8 PageID #:267
9. And The Beloved Church has procured and will have placed hand sanitizer at all the entries and exits, and throughout the church building, in sufficient amount for anyone attending in-person services to use it as often as she or he wants.
10. Further, The Beloved Church will ensure our seating arrangement is such that every family unit can maintain a 6-foot distance at our in-person service.
11. Even more, I have instructed our congregation that families with anyone who is sick should stay home and that any family with a first-responder or front-line worker should do the same, with our thanks and gratitude for their service. I have already heard from a handful of families that they will stay home due to having a front-line worker in the household. And I have also asked those who are at greatest risk of coronavirus infection to join us in worship from home, instead of in person.
12. We have a typical attendance of 60 to 80 people at our Sunday services, but that number is not the important one for judging our ability to socially distance for our services. We have many large families, some with up to 12 members, and my own family includes 8 members. The typical attendance, by family, at our worship services is roughly 10 to 15 families, depending on the Sunday.
13. If the 10-person limit is read to mean any 10 people gathering, I will be unable to pastorally minister to or worship with that 12-member family, despite that family effectively being only 1 potential source of viral infection, not 12 independent sources. My own 8-person family would not even be able to attend Sunday services at the Church, because counting the 5 people necessary to put on our services, we could only have 5 more people in the sanctuary. At the very least, it is irrational and unreasonable to apply a 10-person cap, without regard to family structure and number of potential sources of viral infection.
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Case: 3:20-cv-50153 Document #: 34 Filed: 05/02/20 Page 4 of 8 PageID #:268 14. The sanctuary of our church building in Lena measures 60’ x 60’ (3,600sf) and
can hold roughly 200 people on the main level, with a balcony measuring 21’ x 15’ (315sf) that can hold roughly another 24-30 people. It is more than large enough to provide 6 feet (and more) of separation for our typical 10 to 15 family units, and our typical Sunday services are attended at closer to 25-35% of occupancy, well less than the 50% of occupancy limit imposed on retailers in the new executive order.
15. Here are pictures of our sanctuary and balcony, which I myself took within the last week, to give a better sense of their size:
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16. It is more than feasible for us to keep family units 6 feet apart in our church building during in-person services, even with 15 families attending, than it is for other local businesses that I am familiar with. I have personally shopped at the Menards and Walmart stores in Freeport during the last three weeks and observed much more violation of six-foot distancing in those stores than would occur at in-person Sunday services. Further, a person can easily be near to and, or at least in the same building with, over one hundred different people, from one hundred different households, at one of these local large retailers. Folks shopping at Menards and Walmart are also in physical contact with a variety of products that have been handled by other people, any of whom may be infectious. And an average visit to one of these large retailers is not normally a brief affair: a quick trip to Walmart or Menards can take thirty minutes from entry to exit, and a more involved one can easily take an hour. If one were looking at potential sources of infection for a virus, our local large retailers present ten times the risk of a church.
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14. It is also more feasible for us to keep individuals and family or household units six-feet apart in our church building during in-person services, and to observe social-distancing, even with 15 families attending, than for large employers in Stephenson County. For instance, yesterday I spoke with a current, long-time employee of Kelly Springfield-Titan Tire at its plant outside Freeport, which employs several hundred people, working three daily shifts. He told me about what he has observed about social distancing at the plant over the last month. He said that, though management sends out rules about social distancing, it is impossible for many employees to comply. Though many try to remain six feet apart, at times it is impossible. When a shift clocks out, for example, everyone must line up at the clock and cannot stay six-feet apart. “In my opinion,” he said to me, “everybody is just working hard, doing their jobs and from a year ago we are doing literally almost the same thing we have always done.” I honor the vital work of those who work in our local manufacturing plants, but while they do temporal work to meet their temporal needs, they deserve to be nourished in their souls and meet their spiritual needs. Without denigrating any of the fine employers in our county, the layout of The Beloved Church allows us to provide an environment for our congregants, on Sunday morning, that is as safe or safer than the environment many are in for 40 hours a week or more, from Monday through Friday. Again, if one were looking at potential sources of infection for a virus, employees present for long periods of time, including at close quarters, at our local manufacturers present a larger risk than The Beloved Church.
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Verification: Under penalty of perjury as provided by the laws of the United States, I, Stephen Cassell, affirm that all of the foregoing information is true.

___________________________\ May 2, 2020

Stephen Cassell

Dated

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 Case: 3:20-cv-50153 Document #: 39 Filed: 05/03/20 Page 1 of 37 PageID #:288

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

STEPHEN CASSELL and

)

THE BELOVED CHURCH, an Illinois )

not-for-profit corporation,

)

)

Plaintiffs,

)

)

v.

)

)

DAVID SNYDERS, Sheriff of

)

Stephenson County, JAY ROBERT

)

PRITZKER, Governor of Illinois,

)

CRAIG BEINTEMA, Administrator of )

the Department of Public Health

)

of Stephenson County, STEVE

)

SCHAIBLE, Chief of Police of the

)

Village of Lena, Illinois,

)

)

Defendants.

)

20 C 50153 Judge John Z. Lee

MEMORANDUM OPINION AND ORDER

So far, over 60,000 Americans have died from contracting COVID-19. That is

more than the number of people who perished during the 9/11 terrorist attacks,

Pearl Harbor, and the Battle of Gettysburg combined. Hoping to slow the

pathogen’s spread, governors and mayors across the country have implemented

stay-at-home orders. While those orders have already saved thousands of lives,

they come at a considerable cost. In Illinois, as in other states, the orders have

interfered with the ability of residents to work, learn, and worship.

This case is about whether those restrictions are consistent with the religious

freedoms enshrined in the Federal Constitution and in Illinois law. Every Sunday

for the past five years, members of the Beloved Church have gathered with their

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pastor, Stephen Cassell, to pray, worship, and sing. Since Governor Pritzker’s first stay-at-home order went into effect, however, the Beloved Church has been forced to move those services online. And, in the intervening weeks, the Governor has issued additional orders, extending the restrictions.
Convinced that these orders impermissibly infringe on their religious practices, Cassell and the Beloved Church have sued Pritzker, Stephenson County Sheriff David Snyders, Stephenson County Public Health Administrator Craig Beintema, and Village of Lena Police Chief Steve Schaible. In particular, Plaintiffs allege that the stay-at-home orders violate the First Amendment’s Free Exercise Clause, Illinois’s Religious Freedom Restoration Act (“RFRA”), 775 Ill. Comp. Stat 35/15, the Emergency Management Agency Act (“EMAA”), 20 Ill. Comp. Stat. 3305/7, and the Illinois Department of Health Act (“DHA”), 20 Ill. Comp. Stat. 2305/2(a).
Plaintiffs hope to return to their church on May 3, 2020, to worship without limitations. To that end, on April 30, 2020, they filed a motion asking the Court to enter a temporary restraining order and a preliminary injunction preventing Defendants from enforcing the stay-at-home orders. Given the time constraints, the Court ordered expedited briefing; Defendants filed their responses to the motion on May 1, 2020, and Plaintiffs submitted their reply on May 2, 2020.
The Court understands Plaintiffs’ desire to come together for prayer and fellowship, particularly in these trying times. It is not by accident that the right to exercise one’s religious beliefs is one of the core rights guaranteed by our
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Constitution. And whether it be the Apostles and Jesus gathering together to break bread and share wine on the night before his crucifixion (Luke 22:7-23), or Peter addressing the many at Pentecost and forming the first church (Acts 2:14-47), Christian tradition has long cherished communal fellowship, prayer, and worship.
But even the foundational rights secured by the First Amendment are not without limits; they are subject to restriction if necessary to further compelling government interests—and, certainly, the prevention of mass infections and deaths qualifies. After all, without life, there can be no liberty or pursuit of happiness.
Recently, after this lawsuit was filed, Governor Pritzker issued a new order, recognizing the free exercise of religion as an “essential activity.” April 30 Order § 2, ¶ 5(f), ECF No. 26-1. The order now states that worshippers may “engage in the free exercise of religion” so long as they “comply with Social Distancing Requirements” and refrain from “gatherings of more than ten people.” Id. Furthermore, “[r]eligious organizations and houses of worship are encouraged to use online or drive-in services [which are not limited to ten people] to protect the health and safety of their congregants.” Id.
The Court is mindful that the religious activities permitted by the April 30 Order are imperfect substitutes for an in-person service where all eighty members of Beloved Church can stand together, side-by-side, to sing, pray, and engage in communal fellowship. Still, given the continuing threat posed by COVID-19, the Order preserves relatively robust avenues for praise, prayer and fellowship and passes constitutional muster. Until testing data signals that it is safe to engage
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more fully in exercising our spiritual beliefs (whatever they might be), Plaintiffs, as Christians, can take comfort in the promise of Matthew 18:20—“For where two or three come together in my name, there am I with them.”
For the reasons below, Plaintiffs’ motion for a temporary restraining order and preliminary injunction is denied.
I. Preliminary Factual Findings1 A. The Pandemic
COVID-19 is “a novel severe acute respiratory illness” that spreads rapidly “through respiratory transmission.” April 30 Order at 1, ECF No. 26-1 (“April 30 Order” or “Order”). Making response efforts particularly daunting, asymptomatic individuals may carry and spread the virus, and there is currently no known vaccine or effective treatment. Id.; Pritzker Resp. Br. at 12, ECF No. 26. The virus has killed hundreds of thousands, infected millions, and disrupted the lives of nearly everyone on the planet. April 30 Order at 1–2. In Illinois alone, at least 2,350 individuals have perished from the pathogen, with more than 50,000 infected. Id. at 2. B. The Stay-at-Home Orders
To slow the spread of COVID-19, Governor Jay R. Pritzker issued a stay-athome order on March 20, 2020. ECF No. 1-1. He extended that order two weeks

1

“[T]he district judge, in considering a motion for preliminary injunction . . . must

make factual determinations on the basis of a fair interpretation of the evidence before the

court.” Darryl H. v. Coler, 801 F.2d 893, 898 (7th Cir. 1986). The facts summarized here

derive from Plaintiffs’ complaint, the parties’ briefs supporting and opposing the motion,

and the accompanying exhibits; none are materially disputed.

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later, before issuing a new directive with modified restrictions at the end of April. See April 30 Order. In substance, these orders direct Illinoisans to practice what experts call “social distancing.” That means limiting activity outside the home, staying at least six feet apart from others, and refraining from congregating in groups of more than ten. Id. § 1. To facilitate these efforts, businesses deemed nonessential have been required to cease operations, and schools have been forced to close their doors. The Governor has determined that, if the orders were not in effect, “the number of deaths from COVID-19 would be between ten to twenty times higher.” April 30 Order at 2.
At the same time, the stay-at-home orders have resulted in significant hardships for many individuals and their families. With schools closed, families have had to care for their children and oversee their education on a full-time basis. With businesses shuttered, many Illinoisans now find themselves furloughed or fired. And with large gatherings prohibited, religious groups have had to refrain from their usual activities.
In an effort to alleviate some of those concerns, the April 30 Order, which is effective until the end of May, provides that Illinoisans may leave their homes to perform certain “Essential Activities.” April 30 Order § 1, ¶ 5. Though the Order did not initially include religious events in its list of Essential Activities, it was amended shortly after Plaintiffs filed this lawsuit and their associated request for a temporary restraining order. Compare ECF No. 1-3, with ECF No. 26-1. As amended, the Order clarifies that worshippers may “engage in the free exercise of
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religion” so long as they “comply with Social Distancing Requirements” and refrain from “gatherings of more than ten people.” April 30 Order § 2, ¶ 5(f). In doing so, “[r]eligious organizations and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregants.” Id. C. The Beloved Church
Pastor Stephen Cassell formed the Beloved Church, an evangelical Christian organization, to promote “the truths of God’s unconditional Love, amazing Grace, and majestic Restoration.” Compl. ¶ 24, ECF No. 1. Cassell is passionate about “shar[ing] the love of God with [his] congregants, who form what [he] believe[s] is [a] Church family.” Id. ¶ 25.
To that end, Cassell leads Sunday services at the Church’s building in Lena, Illinois. Id. ¶ 27. On a typical Sunday, about eighty worshippers attend. Id. During each service, Cassell reads from scripture, delivers a sermon, and leads the congregation in prayer and song. Id. ¶ 28. After the ceremony, he encourages worshippers to engage in informal conversation with each other, building fellowship and community. Id. ¶ 29. Plaintiffs view Sunday prayer services as “the central religious rites of the Church congregation.” Id. ¶ 31.
In late March, the Stephenson County Department of Public Health served Cassell with a cease-and-desist notice. Id. ¶ 48. It declared that the Beloved Church was required to adhere to the guidelines elaborated in the stay-at-home orders. Id. ¶ 49. For example, the notice stated that religious gatherings of over ten people would not be permitted. Id. ¶ 49. It went on to warn that violators “may
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be subject to additional civil and criminal penalties.” Id. ¶ 49. Fearing fines and prosecution, the Beloved Church has refrained from holding Sunday services in person, id. ¶ 50, and, like many religious organizations, Cassell has instead held services online on various forums, including Facebook Live and YouTube.2
Viewing these remote services as “a violation of the Church’s existence as a Christian congregation,” Plaintiffs take aim at Governor Pritzker’s most recent Order. Cassell Decl. ¶ 3, ECF No. 34. To support this challenge, Plaintiffs have submitted with their reply brief a declaration by Cassell stating that the Beloved Church’s parking lot cannot accommodate drive-in services; that typically 10 to 15 family units attend a service, most of which consist of many members; that the church’s facility can seat 15 family units with six feet of distance between each unit; and that Cassell will supply all attendees with masks (or other face coverings) and hand sanitizer. Id. ¶¶ 5, 8–10, 16.

2

For example, in recent weeks, Cassell has presented a series of sermons titled

“Corona-Lie,” where he has expressed skepticism regarding the extent of the COVID-19

crisis, as well as the government’s motives in responding to it. See, e.g., Beloved Church

Media, Sunday March 15, 2020: Corona-Lie (Pastor Steve Cassell) at 38:35, YOUTUBE,

https://www.youtube.com/watch?v=QJix0dCxhGQ&t=1699s (“Why don’t we shut the

country down for the 2500 people that have died from [Corona Beer]? Because it doesn’t fit

the narrative. I don’t know if you realize this, but you are being absolutely manipulated

and controlled by a system that wants you to believe what it tells you.”). See Goplin v.

WeConnect, Inc., 893 F.3d 488, 491 (7th Cir. 2018) (approving the district court taking

judicial notice of a party’s website in deciding a motion where the counterparty cited the

website in its response brief).

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II. Legal Standard “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (internal quotation marks omitted). A party seeking a preliminary injunction must show that (1) its case has “some likelihood of success on the merits,” (2) it has “no adequate remedy at law”, and (3) “without relief it will suffer irreparable harm.” Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d 809, 816 (7th Cir. 2018). As part of the preliminary-injunction analysis, a district court may consider a nonmovant’s defenses in determining the movant’s likelihood of success on the merits. See Russian Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 308 (7th Cir. 2010). If the moving party meets these threshold requirements, the district court “weighs the factors against one another, assessing whether the balance of harms favors the moving party or whether the harm to the nonmoving party or the public is sufficiently weighty that the injunction should be denied.” Ezell v. City of Chi., 651 F.3d 684, 694 (7th Cir. 2011). “The standards for granting a temporary restraining order and a preliminary injunction are the same.” USA-Halal Chamber of Commerce, Inc. v. Best Choice Meats, Inc., 402 F. Supp. 3d 427, 433 (N.D. Ill. 2019) (citation omitted).
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III. Mootness, Standing, and Ripeness As a threshold matter, Defendants question whether Article III authorizes this Court to adjudicate Plaintiffs’ claims. In doing so, they articulate three distinct theories. First, Governor Pritzker says that Plaintiffs’ motion is moot in light of the new provisions in the April 30 Order relating to religious activities. Second, Sheriff Snyders, Public Health Administrator Beintema, and Police Chief Schaible (“County and Village Defendants”) submit that Plaintiffs lack standing to sue. Finally, the same group of Defendants argues that this case is not ripe for review. A. Mootness To begin with, Governor Pritzker contends that Plaintiffs’ claims have been mooted by the post-complaint issuance of the April 30 Order, which supersedes EO 2020-10 and EO 2020-18, and provides a new framework for religious organizations starting May 1, 2020. To the extent that Plaintiffs seek declaratory and injunctive relief with respect to EO 2020-10 and EO 2020-18, without regard to the new provisions in the April 30 Order, their claims are indeed moot. See N.Y. State Rifle & Pistol Ass’n, Inc. v. City of N.Y, No. 18-280, 2020 WL 1978708, at *1 (U.S. Apr. 27, 2020) (holding that a request for declaratory and injunctive relief was mooted by amendment of the statute). But to the extent that Plaintiffs assert residual claims that apply equally to the April 30 Order, those claims are not moot. Cf. id. (remanding residual claims based on the new statute for further proceedings); Lewis v. Cont’l Bank Corp., 494 U.S. 472, 482 (1990) (same). “[A] case does not become moot as long as the parties
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have a concrete interest, however small, in the litigation[ ] . . . .” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 665 (2016). And it is clear that Plaintiffs take umbrage at the restrictions on religious gatherings imposed by the April 30 Order, including the ten-attendee limit. See Compl. ¶¶ 27–31. Accordingly, Governor Pritzker’s argument that the case is moot fails. B. Standing
Next, the County and Village Defendants contend that Plaintiffs lack standing. To establish standing, a plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a “likel[ihood]” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Defendants focus their fire on the first element.
As a general rule, “[a]n injury sufficient to satisfy Article III must be concrete and particularized and actual or imminent, not conjectural or hypothetical.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal quotation marks omitted). But an “allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Id. (emphasis deleted and internal quotation marks omitted). “[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights” Steffel v. Thompson, 415 U.S. 452, 459 (1974); see MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29 (2007); Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630,
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640 (7th Cir. 1990) (recognizing that “special flexibility, or ‘breathing room,’ . . . attaches to standing doctrine in the First Amendment context”) (citation omitted).
Babbitt v. United Farm Workers National Union is instructive. 442 U.S. 289 (1979). In that case, the Supreme Court held that the plaintiffs could bring a preenforcement action because they alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exist[ed] a credible threat of prosecution thereunder.” Id., 442 U.S. at 298. The statute at issue made it illegal to encourage consumers to boycott an “agricultural product . . . by the use of dishonest, untruthful and deceptive publicity.” Id. at 295. And the plaintiffs pleaded they had “actively engaged in consumer publicity campaigns in the past” and “inten[ded] to continue to engage in boycott activities” in the future. Id. Even though the plaintiffs did not “plan to propagate untruths,” they maintained that “‘erroneous statement is inevitable in free debate,’” and this was sufficient to establish standing. Id. (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271 (1964)).
As in Babbitt, Plaintiffs have alleged an Article III injury. According to Plaintiffs, Beintema issued and Snyders’ deputy sheriff served a cease-and-desist notice on March 31, 2020, advising Plaintiffs that the Department of Public Health could issue a closure order if they did not adhere to Governor Pritzker’s Executive Order 2020-10. Compl. ¶ 47. Although the notice references Executive Order 202010, the allegations create a reasonable inference that the notice also would apply to
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the April 30 Order, which prohibits “gatherings of more than ten people.” April 30 Order § 2, ¶ 5(f).
Moreover, the notice stated that “police officers, sheriffs and all other officers in Illinois are authorized to enforce such orders. In addition to such an order of closure . . . you may be subject to additional civil and criminal penalties.” Id., Ex. C, Cease and Desist Notice, ECF No. 1-3. Along the same lines, the April 30 Order expressly warns that “[t]his Executive Order may be enforced by State and local law enforcement pursuant to, inter alia, Section 7, Section 15, Section 18, and Section 19 of the Illinois Emergency Management Agency Act, 20 ILCS 3305.” April 30 Order § 2, ¶ 17.
For their part, Plaintiffs state that, for the past five years, they have held church services with eighty people in attendance, and they intend to hold a service on Sunday, May 3, 2020. Id. ¶¶ 11, 27. Plaintiffs further assert that, based on the cease-and-desist notice, they fear arrest, prosecution, fines, and jail time if the full congregation attends the service. Id. ¶ 50. And, although Snyders states that he does not intend to enforce the April 30 Order against Plaintiffs if they go through with their plans to gather on May 3, 2020, he does not provide any assurance that the Order will not be enforced thereafter. Therefore, based on the record, the Court finds that Plaintiffs face “a credible threat of prosecution,” Babbitt, 442 U.S. at 298, and the allegations in the complaint are sufficient to state an injury-in-fact.
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C. Ripeness In the alternative, the County and Village Defendants argue that Plaintiffs’
claims do not satisfy the Article III requirement of ripeness. But when a court has determined that a plaintiff has sufficiently alleged an Article III injury, a request to decline adjudication of a claim based on prudential ripeness grounds is in “some tension” with the Supreme Court’s “reaffirmation of the principle that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014) (internal quotation marks omitted); see Susan B. Anthony List, 573 U.S. at 167.
Be that as it may, ripeness is satisfied here. To determine ripeness, courts examine (1) “the fitness of the issues for judicial decision,” and (2) “the hardship to the parties of withholding court consideration.” Metro. Milwaukee Ass’n of Commerce v. Milwaukee Cty., 325 F.3d 879, 882 (7th Cir. 2003). First, Plaintiffs’ claims raise purely legal questions that are typically fit for judicial review, and further factual development will provide little clarification as to these issues. See Susan B. Anthony List, 573 U.S. at 167; Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 148 (7th Cir. 2011); Metro. Milwaukee Ass’n of Commerce v. Milwaukee Cty., 325 F.3d 879, 882 (7th Cir. 2003).
Second, denying judicial review imposes a not-insignificant hardship on Plaintiffs by forcing them to choose between refraining from congregating at their church and engaging in assembly while risking civil fines and criminal penalties.
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Accordingly, the County and Village Defendants’ argument that the Plaintiffs claims are unripe are unavailing. With that, the Court turns to the merits of Plaintiffs’ motion.
IV. Likelihood of Success on the Merits Plaintiffs challenge the April 30 Order on two grounds. First, they maintain that it runs afoul of the First Amendment’s Free Exercise Clause. Second, they insist that the Order violates three state statutes—the Illinois Religious Freedom Restoration Act, the Emergency Management Agency Act, and the Illinois Department of Health Act. A. Free Exercise Claim3 1. Government Authority During a Public Health Crisis The Constitution does not compel courts to turn a blind eye to the realities of the COVID-19 crisis. For more than a century, the Supreme Court has recognized that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Commonwealth of Mass., 197 U.S. 11, 27 (1905); see Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (“The right to practice religion freely does not include liberty to expose the community . . . to communicable disease.”). During an epidemic, the Jacobson

court explained, the traditional tiers of constitutional scrutiny do not apply. Id.; see

3

Plaintiffs’ motion focuses on their claim under the Free Exercise Clause. In the

reply brief, however, they also argue that the Order violates the First Amendment’s Free

Speech and Freedom of Assembly provisions. But, because Plaintiffs failed to include these

arguments in their opening brief and offer them only in reply, the arguments are waived as

a matter of fairness. See Wonsey v. City of Chi., 940 F.3d 394, 399 (7th Cir. 2019).

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In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020). Under those narrow circumstances, courts only overturn rules that lack a “real or substantial relation to [public health]” or that amount to “plain, palpable invasion[s] of rights.” Jacobson, 197 U.S. at 31. Over the last few months, courts have repeatedly applied Jacobson’s teachings to uphold stay-at-home orders meant to check the spread of COVID-19. See, e.g., Abbott, 954 F.3d at 783–85; Gish v. Newsom, No. EDCV20755JGBKKX, 2020 WL 1979970, at *5 (C.D. Cal. Apr. 23, 2020).
This is not to say that the government may trample on constitutional rights during a pandemic. As other judges have emphasized, Jacobson preserves the authority of the judiciary to strike down laws that use public health emergencies as a pretext for infringing individual liberties. See, e.g., Abbott, 954 F.3d at 800 (Dennis, J., dissenting) (citing Jacobson, 197 U.S. at 28–29)). Furthermore, Jacobson’s reach ends when the epidemic ceases; after that point, government restrictions on constitutional rights must meet traditionally recognized tests. And so, courts must remain vigilant, mindful that government claims of emergency have served in the past as excuses to curtail constitutional freedoms. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944), abrogated by Trump v. Hawaii, -U.S. --, 138 S. Ct. 2392, 2423 (2018).
Today, COVID-19 threatens the lives of all Americans. The disease spreads easily, causes severe and sometimes fatal symptoms, and resists most medical interventions. April 30 Order at 1–2. When Governor Pritzker issued the amended stay-at-home rules, thousands of Illinoisans had perished due to the disease. Id.
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Based on the plethora of evidence here, the Court finds that COVID-19 qualifies as the kind of public health crisis that the Supreme Court contemplated in Jacobson and that the coronavirus continues to threaten the residents of Illinois.
While Plaintiffs acknowledge the seriousness of the pathogen, they insist that the stay-at-home orders have successfully flattened the curve of active COVID-19 cases, eliminating the need for continued precautions. But, to borrow an analogy from Justice Ginsburg, that “is like throwing away your umbrella in a rainstorm because you are not getting wet.” Shelby Cty., Ala. v. Holder, 570 U.S. 570 U.S. 529, 590 (2013) (Ginsburg, J., dissenting). Without the stay-at-home restrictions, the Governor estimates that ten to twenty times as many Illinoisans would have died and that the state’s hospitals would be overrun. April 30 Order at 2. Plaintiffs have failed to marshal any credible evidence that suggests otherwise.
As a fallback position, Plaintiffs portray the April 30 Order as “arbitrary” and “unreasonable.” Jacobson, 197 U.S. at 28. Specifically, they claim that the Order subjects religious organizations to more onerous restrictions than their secular counterparts. But, as we shall shortly see, the Order adopts neutral principles that satisfy Jacobson’s reasonableness standard.
In sum, because the current crisis implicates Jacobson, and because the Order undoubtedly advances the government’s interest in protecting Illinoisans from the pandemic, the Court finds that Plaintiffs have a less than negligible chance of prevailing on their constitutional claim.
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2. Traditional First Amendment Analysis Even if Jacobson were not to apply here, the Order nevertheless would likely withstand scrutiny under the First Amendment’s Free Exercise Clause. That provision prevents the government from “plac[ing] a substantial burden on the observation of a central religious belief or practice” unless it demonstrates a “compelling government interest that justifies the burden.” St. John’s United Church of Christ v. City of Chi., 502 F.3d 616, 631 (7th Cir. 2007). As the Supreme Court has elaborated, however, “neutral, generally applicable laws may be applied to religious practice even when not supported by a compelling government interest.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2761 (2014) (citing Emp’t Div. v. Smith, 494 U.S. 872, 879–80 (1990)). In other words, a “neutral law of general applicability is constitutional if it is supported by a rational basis.” Ill. Bible Colleges Ass’n. v. Anderson, 870 F.3d 631, 639 (7th Cir. 2017). For the rational basis test to apply, the challenged law must be both neutral and generally applicable. The neutrality element asks whether “the object of the law is to infringe upon or restrict practices because of their religious motivation.” Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731, 743 (7th Cir. 2015) (citing Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993)). The general applicability element “forbids the government from impos[ing] burdens only on conduct motivated by religious belief in a selective manner.” Listecki, 780 F.3d at 743. As these definitions suggest, the neutrality and general applicability requirements usually rise or fall together.
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In evaluating these two elements, courts draw on principles developed in the context of the Fourteenth Amendment’s Equal Protection Clause. See, e.g., Lukumi, 508 U.S. at 540 (instructing lower courts to “find guidance in our equal protection cases”). At its core, equal protection analysis hinges on whether “the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon a particular group.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). In keeping with that framework, courts apply the rational basis test to Free Exercise Clause claims, unless the challenged rule “fail[s] to prohibit nonreligious conduct that endangers the [government’s] interests in a similar or greater degree” than religious conduct. Lukumi, 508 U.S. at 543.
Lukumi is instructive. There, the Supreme Court reviewed municipal ordinances that prescribed penalties for “any individual or group that kills, slaughters or sacrifices animals for any type of ritual.” Lukumi, 508 U.S. at 527. In holding that “the object or purpose of [the challenged] law is the suppression of religion or religious conduct,” the Court looked to three main factors. Id. at 533. First, it determined that the drafters of the ordinances displayed a “pattern” of animosity towards “Santeria worshippers,” who practiced animal sacrifice. Id. at 542. Second, it recognized that “the ordinances [we]re drafted with care to forbid few killings but those occasioned by religious sacrifice.” Id. at 543. Third, it concluded that the “ordinances suppress much more religious conduct than is
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necessary in order to achieve the legitimate ends asserted in their defense.” Id. at 536.
This case is different. For one, nothing in the record suggests that Governor Pritzker has a history of animus towards religion or religious people, and Plaintiffs do not argue otherwise. For another, the Order proscribes secular and religious conduct alike. See, e.g., April 30 Order § 2, ¶ 3 (forbidding “any gathering of more than ten people”). Indeed, its limitations extend to most places where people gather, from museums to theaters to bowling alleys. Id. And finally, Plaintiffs have not established that the Order “suppress[es] much more religious conduct than is necessary” to slow the spread of COVID-19. Lukumi, 508 U.S. at 536. To the contrary, the April 30 Order expressly preserves various avenues for religious expression, including gatherings of up to ten people and drive-in services. April 30 Order § 2, ¶ 5(f). For these reasons, the Court concludes that the Order does not “impose special disabilities on the basis of . . . religious status.” Smith, 494 U.S. at 877.
Neither of Plaintiffs’ counterarguments is persuasive. First, they claim that the Order “targets . . . church services because it makes them the only Essential Activity effectively subject to the 10-person maximum requirement.” But that argument rests on a misreading of the Order. In fact, the Order broadly prohibits “any gathering of more than ten people [other than members of the same household]. . . unless exempted by this Executive Order.” April 30 Order § 2, ¶ 3.
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And nothing in the Section that enumerates “Essential Activities” appears to exempt secular activities from that generally-applicable constraint. Id. § 2, ¶ 5.
It is true that the provision recognizing religious activities as essential reiterates the ten-person restriction. Id. ¶ 5(f). But, read as a whole, the Order appears to apply that limit to the other Essential Activities as well. For example, Section 2, ¶ 5 of the Order permits “individuals” to leave their homes in order to visit their doctors, pick up groceries, and travel to work at “Essential Businesses” (which must abide by their own additional restrictions). Id. ¶ 5(a)–(d). It also lists “hiking,” “running,” and “[f]ishing” as essential activities. Id. ¶ 5(c). In practice, those are pursuits that individuals normally perform alone or in small groups. By contrast, people of faith tend to gather for worship in much greater numbers, as Plaintiffs themselves acknowledge. Compl. ¶ 27. Understood in that context, it makes sense for Order to explicitly remind worshippers that they must abide by the prohibition on large groups.
Second, Plaintiffs complain that “grocery stores,” “food and beverage manufacturing plants,” and other “Essential Businesses” need not comply with the ten-person limitation.4 April 30 Order § 2, ¶ 12(a), (b). If Walmart and Menards are allowed to host more than ten visitors, Plaintiffs’ theory goes, then so should the

4

At times, Plaintiffs also argue that the government does not enforce social

distancing requirements as applied to Essential Businesses. See Pls.’ Reply at 8. In

support, Cassell states that he has observed social distancing violations while shopping at

Menards and Walmart. Cassell Decl. ¶ 16. But limited, anecdotal instances of

noncompliance contribute little to the inference that the “object or purpose” of the

challenged order is to interfere with religious practices. Lukumi, 508 U.S. at 527.

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Beloved Church. But the question is not whether any secular organization faces fewer restrictions than any religious organization. Rather, the question is whether secular conduct “that endangers the [government]’s interests in a similar or greater degree” receives favorable treatment. Lukumi, 508 U.S. at 543. Only then does different treatment signal that the government’s “object” is to target religious practices. Id. at 533.
Contrary to Plaintiffs’ suggestion, retailers and food manufacturers are not comparable to religious organizations. The avowed purpose of the Order is to slow the spread of COVID-19. As other courts have recognized, holding in-person religious services creates a higher risk of contagion than operating grocery stores or staffing manufacturing plants. See, e.g., Gish, 2020 WL 1979970, at *6. The key distinction turns on the nature of each activity. When people buy groceries, for example, they typically “enter a building quickly, do not engage directly with others except at points of sale, and leave once the task is complete.” Id. The purpose of shopping is not to gather with others or engage them in conversation and fellowship, but to purchase necessary items and then leave as soon as possible.5
By comparison, religious services involve sustained interactions between many people. During Sunday services, for example, Cassell encourages members of his congregation to “converse” and “build fellowship and morale.” Compl. ¶ 29. Indeed, Plaintiffs view “informal conversations and fellowship” as “essential parts of

5

Indeed, among other things, the Order requires retail stores that are designated as

Essential Businesses to set up aisles to be one-way “to maximize spacing between

customers and identify the one-way aisles with conspicuous signage and/or floor markings.”

April 30 Order § 2.

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a functioning Christian congregation.” Id. Given that religious gatherings seek to promote conversation and fellowship, they “endanger” the government’s interest in fighting COVID-19 to a “greater degree” than the secular businesses Plaintiffs identify. Lukumi, 508 U.S. at 543.
This distinction finds support in the record. There are many examples where religious services have accelerated the pathogen’s spread. For instance, of eighty congregants who attended a Life Church service in Illinois on March 15, ten contracted the disease, and at least one died. See Anna Kim, “Glenview church hit by COVID-19 is now streaming service online, as pastor remembers usher who died of disease,” Chicago Tribune (Mar. 31, 2020). Along the same lines, South Korea tracked more than 5,000 individual cases to a single church. See Youjin Shin, Bonnie Berkowitz, Min Joo-Kim, “How a South Korean church helped fuel the spread of the coronarvirus,” Washington Post (Mar. 25, 2020). And, near Seattle, at least forty-five individuals who attended a church choir gathering were diagnosed with COVID-19. See Richard Read, “A choir decided to go ahead with rehearsal. Now dozens have COVID-19 and two are dead,” Los Angeles Times (Mar. 29, 2020). In comparison, Plaintiffs have failed to identify a grocery store or liquor store that has acted as a vector for the virus.
A more apt analogy is between places of worship and schools. Like their religious counterparts, educational institutions play an essential part in supporting and promoting individuals’ wellbeing. At the same time, education and worship are both “activities where people sit together in an enclosed space to share a communal
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experience,” exacerbating the risk of contracting the coronavirus. Gish, 2020 WL 1979970, at *6. And here, the Order imposes the same restrictions on schools as it does on churches, synagogues, mosques, and other places of worship.
What is more, the interior of Beloved Church (like many churches of its kind) resembles that of a small movie theater. And, like moviegoers, during a service, congregants generally focus on the pastor or another speaker, who is typically in the front of the room. See Cassell Decl. ¶ 15 (photos of church interior). But, here again, movie theaters and concert halls (unlike churches) are completely barred from hosting any gatherings. April 30 Order § 2, ¶ 3. This reinforces the conclusion that the Order is not meant to single out religious people or communities of faith for adverse treatment.
This is not the first time that a governor’s stay-at-home order has been challenged by a religious group, and the majority of courts in those cases have determined that the orders reflect neutral, generally-applicable principles. See, e.g., Gish, 2020 WL 1979970, at *5–6 (“Because the Orders treat in-person religious gatherings the same as they treat secular in-person communal activities, they are generally applicable.”); Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB/SCY, 2020 WL 1905586, at *35 (D.N.M. Apr. 17, 2020) (“[The government] may distinguish between certain classes of activity, grouping religious gatherings in with a host of secular conduct, to achieve . . . a balance between maintaining community health needs and protecting public health.”).
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For their part, Plaintiffs make much of First Baptist v. Kelly, No. 20-1102JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020). In First Baptist, the stay-at-home orders in question prohibited “mass gatherings” at a number of establishments, including auditoriums, theaters, and stadiums, as well as “churches and other religious facilities.” Id. at *2. The orders also exempted places like airports, “retail establishments where large numbers of people are present but are generally not within arm’s length of one another for more than 10 minutes,” and food establishments provided that patrons practice social distancing. Id.
Even though the orders covered a wide array of secular places as well as religious places, the court determined that the orders amounted to “a wholesale prohibition against assembling for religious services anywhere in the state by more than ten congregants.” Id. at *4. “[B]oth orders,” the court emphasized, “expressly state” that “their prohibitions against mass gatherings apply to churches or other religious facilities.” Id. at *7. For that reason, First Baptist held that “these executive orders expressly target religious gatherings on a broad scale and are, therefore, not facially neutral.” Id.
The approach in First Baptist is difficult to square with Lukumi. Taken alone, the fact that a government restriction refers to religious activity (while at the same time listing others) cannot be sufficient to show that its “object or purpose” is to target religious practices for harsher treatment. Lukumi, 508 U.S. at 533; see Maryville Baptist Church, Inc. et al. v. Andy Beshear, No. 20-5427, slip. op. at 7 (6th Cir. May 2, 2020) (slip opinion) (mentioning religious gatherings “by name” does not
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Case: 3:20-cv-50153 Document #: 39 Filed: 05/03/20 Page 25 of 37 PageID #:312

establish “that the Governor singled out faith groups”). Instead, Lukumi embraced a functional assessment of how the challenged law operates in practice. In engaging in that analysis, courts must consider how a particular stay-at-home order treats secular and religious activities that are substantially comparable to one another. First Baptist overlooked that step.6
Nor does Maryville Baptist, a recently released Sixth Circuit opinion, support Plaintiffs’ position. That case involved a pair of stay-at-home orders that proscribed both “drive-in and in-person worship services,” while permitting their secular equivalents. Maryville Baptist, slip. op. at 1. Because Kentucky’s governor “offered no good reason” to treat drive-in religious services and drive-in businesses differently, the court halted enforcement of the prohibition on drive-in services. Id. at 10. At the same time, because of gaps in the factual record, the Court of Appeals allowed the ban on in-person services to continue pending further proceedings in the district court. Id.
Applied here, the Sixth Circuit’s reasoning counsels in favor of upholding Governor Pritzker’s Order. Unlike in Maryville Baptist, the April 30 Order confirms that religious organizations in Illinois may hold drive-in services. See Supp. Not. at 1–2, ECF No. 32. To the extent that the Sixth Circuit expressed concerns about restrictions on in-person services, those doubts stemmed from the

6

On Fire Christian Center, Inc. v. Fischer, another district court case Plaintiffs cite,

does not support their position either. No. 3:20-CV-264-JRW, 2020 WL 1820249 (W.D. Ky.

Apr. 11, 2020). In Fischer, the City of Louisville proscribed “drive-in church services, while

not prohibiting a multitude of other non-religious drive-ins and drive-throughs.” Id. at *6.

That is not the case here.

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fact that the Kentucky Governor’s orders prohibit in-person religious gatherings, regardless of how many worshippers attend. Maryville Baptist, slip. op. at 9. “[I]f the problem is numbers, and risks that grow with greater numbers,” the court reasoned, “there is a straightforward remedy: limit the number of people who can attend a service at one time.” Id. That is exactly what Governor Pritzker’s latest order does.
Ultimately, then, the Court concludes that the April Order qualifies as a neutral, generally applicable law. It therefore withstands First Amendment scrutiny so long as “it is supported by a rational basis.” Anderson, 870 F.3d at 639. Given the importance of slowing the spread of COVID-19 in Illinois, the Order satisfies that level of scrutiny, and Plaintiffs do not seriously argue otherwise. As a result, the Court finds that Plaintiffs’ Free Exercise claim is unlikely to succeed on the merits. B. State Law Claims
1. Sovereign Immunity The Eleventh Amendment protects Defendants from Plaintiffs’ RIFRA, EMAA, and DHA claims. That provision dictates that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Although not explicit in the text, the Eleventh Amendment also “guarantees that an unconsenting State is immune from suits brought in federal courts by her own
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Case: 3:20-cv-50153 Document #: 39 Filed: 05/03/20 Page 27 of 37 PageID #:314
citizens.” Council 31 of Am. Fed’n of State, Cty. & Mun. Employees, AFL-CIO v. Quinn, 680 F.3d 875, 881–82 (7th Cir. 2012) (citations and quotation marks omitted). “[I]f properly raised, the amendment bars actions in federal court against . . . state officials acting in their official capacities.” Id. (citation omitted).
Because Defendants are state officials, who have been sued in their official capacities and have raised sovereign immunity, the Eleventh Amendment shields them from Plaintiffs’ state law claims. To be sure, “individual state officials may be sued personally” for federal constitutional violations committed “in their official capacities.” Goodman v. Carter, No. 2000 C 948, 2001 WL 755137, at *9 (N.D. Ill. July, 2, 2001) (citing Ex Parte Young, 209 U.S. 12, 160 (1908)). But that principle does not extend to “claim[s] that officials violated state law in carrying out their official responsibilities.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984).
For example, in Carter, a court in this circuit considered a suit that raised claims under the First Amendment’s Free Exercise Clause, as well as Illinois’s RFRA statute. 2001 WL 755137, at *1. “[Plaintiff]’s ILRFRA claim,” the Carter court observed, “asks this court to instruct state officials on how to conform their conduct to state law.” Id. at *10. Explaining that “such a state-law claim may not be entertained under this court’s supplemental jurisdiction simply because a proper § 1983 claim is also presented,” the court applied the doctrine of sovereign immunity and dismissed the RFRA claim. Id. (citing Pennhurst, 465 U.S. at 121).
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For the same reason, the Eleventh Amendment almost certainly forecloses Plaintiffs’ state law claims here.
2. Merits of the State Law Claims Sovereign immunity aside, the Court finds that Plaintiffs’ RFRA, EMAA, and PHDA claims are unlikely to succeed on the merits. The Court addresses each statutory claim in turn.
a. RFRA For starters, Plaintiffs maintain that the Order violates Illinois’s RFRA statute. Under that statute, the “government may not substantially burden a person’s exercise of religion . . . unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling government interest.” 775 Ill. Comp. Stat 35/15. At this stage, the Court assumes (without deciding) that the Order’s prohibition on in-person religious gatherings of more than ten people qualifies as a “substantial burden” under the RFRA. Id. § 35/15. That means that Defendants must show that the ten-person limitation is the least restrictive way to promote a compelling interest. Turning first to the government’s interest in fighting COVID-19, Plaintiffs reiterate their claim that “the coronavirus epidemic ‘curve’ has been substantially ‘flattened’ statewide.” Compl. ¶ 69. Because previous stay-at-home orders have partially succeeded in limiting the pathogen’s spread, Plaintiffs posit that the
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government no longer has a compelling interest in preventing large gatherings. Yet the virus continues to proliferate, Illinoisans continue to die, and restrictions remain vital to ensuring that hospitals are not overwhelmed. April 30 Order at 1–2. In these exceptional circumstances, controlling the spread of COVID-19 counts as a compelling interest. See United States v. Salerno, 481 U.S. 739, 755 (1987) (recognizing that the government’s interest in “the safety . . . of [its] citizens” is “compelling”).
The remaining question is whether the ten-person limit is the “least restrictive means” of pursuing that goal. 775 Ill. Comp. Stat 35/15. This element turns on “whether [the government] could have achieved, to the same degree, its compelling interest” without interfering with religious activity. Affordable Recovery Hous. v. City. of Blue Island, No. 12 C 4241, 2016 WL 5171765, at *8 (N.D. Ill. Sept. 21, 2016). But Plaintiffs have failed to spotlight, and the Court has not found, any less restrictive rules that would achieve the same result as the prohibition on large gatherings.
While permitting the Beloved Church to hold in-person services with its full congregation might be less disruptive, it would not advance the government’s interest in curtailing COVID-19 “to the same degree” as the ten-person limit. Id. The Court recognizes that Cassell has promised to equip worshippers with masks, place hand sanitizer at entryways, and arrange seating so that families can remain six feet apart and follow the social distancing requirements set forth in the Order.
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Cassell Decl. ¶¶ 7–11. But it is not entirely clear, given the seating configuration at Beloved Church, whether social distancing would be possible.
According to Cassell, ten to fifteen families attend a typical service, and many are “large families, some with up to 12 members.”7 Id. ¶ 12. Yet the photographs of the church’s interior provided by Cassell depict a total of twenty rows, many with fewer than seven seats. Id. ¶ 15. To remain six feet apart, it appears that each family unit must sit at least one row apart from another. It is difficult to see how the church could accommodate ten to fifteen large families in this manner.8 But, even assuming that it is possible, an eighty-person service poses a greater risk to public safety than a gathering of ten or fewer or a drive-in service.
Indeed, Defendants highlight the example of a church choir practice where the members actually used hand sanitizer and practiced social distancing. See Richard Read, “A choir decided to go ahead with rehearsal. Now dozens have COVID-19 and two are dead,” Los Angeles Times (Mar. 29, 2020). Despite those efforts, forty-five choir members ended up contracting COVID-19 and two died. Id.

7

In fact, as Plaintiffs put it, “[t]he Church has numerous families that have taken

seriously the biblical admonition to ‘be fruitful and multiply.’” Pl. Reply at 3.

8

Cassell also states that “[i]t is not feasible to conduct drive-in services on The

Beloved Church’s property” because they “do not have a parking lot that can accommodate

such services.” Id. ¶ 5. But the church appears to have a large parking lot that can

accommodate a number of cars to conduct such services.

See

https://www.google.com/maps/place/216+W+Mason+St,+Lena,+IL+61048/@42.3784957,-

89.827654,3a,75y,99.24h,66.75t/data=!3m6!1e1!3m4!1s-

EqLIBLYW6X0O96wk9B0nA!2e0!7i13312!8i6656!4m5!3m4!1s0x8808103eadade1e7:0x6807

f35e1247a6cb!8m2!3d42.378454!4d-89.8273456; see also Ke Chiang Dai v. Holder, No. 10-

4636-ag, 455 Fed. Appx. 25, 26 n.1 (2012) (taking judicial notice of Google Maps).

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As that example illustrates, large gatherings magnify the risk of contagion even when participants practice preventative measures.
It is also important to recognize the religious exercises that the April 30 Order does allow. In addition to drive-in services and smaller worship services, the Order permits Cassell and other staff members to visit and minister to parishoners in their homes. It allows small group meetings, bible study meetings, and prayer gatherings at the church or in private homes, subject to the ten-person limit. It empowers Cassell and members of his congregation to celebrate communion in small groups. And it authorizes individual congregants to go to the church to obtain spiritual help and guidance from their pastor and/or other church staff members. See Compl. ¶ 33 (noting that “prayer and spiritual counseling visits and meetings are central functions of [Cassell’s] leadership”).
Considering the seriousness of the continuing COVID-19 pandemic, the threat of additional infections in the context of large gatherings, and the avenues for religious worship, prayer, celebration, and fellowship that the April 30 Order does allow, the Court finds that no equally effective but less restrictive alternatives are available under these circumstances, and Plaintiffs’ RFRA claim is thus unlikely to succeed on the merits.
b. Emergency Management Agency Act Plaintiffs also contend that Governor Pritzker exceeded his authority under the EMAA. That Act equips the Governor with an array of emergency powers, including the authority “[t]o control . . . the movement of persons within the area,
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and the occupancy of premises therein.” 20 Ill. Comp. Stat. 3305/7(8). To make use of those powers, the Governor must first issue a proclamation “declar[ing] that a disaster exists.” Id. § 3305/7. After that, he may invoke the Act’s emergency powers “for a period not to exceed 30 days.” Id.
The question here is whether the Act permits Governor Pritzker to declare more than one emergency related to the spread of COVID-19.9 In Plaintiffs’ view, the ongoing pandemic only justifies a single 30-day disaster proclamation. In response, Defendants maintain that, so long as the Governor makes new findings of fact to determine that a state of emergency still exists, the Act empowers him to declare successive disasters, even if they stem from the same underlying crisis.
Based on the text and structure of the Act, Defendants have the better argument. By its terms, the Act defines a disaster as “an occurrence or threat of widespread or severe damage, injury or loss of life . . . resulting from . . . [an] epidemic.” 20 Ill. Comp. Stat. 3305/4. The data show that COVID-19 has infected more and more residents and continues to do so; therefore, a “threat of widespread or severe damage, injury or loss of life” continues to exist. Id.; see April 30 Order at 1–2 (discussing the continued threat imposed by Covid-19).
This statutory construction makes sense. Some types of disasters, such as a storm or earthquake, run their course in a few days or weeks. Other disasters may cause havoc for months or even years. For example, the Act designates “air

9

Plaintiffs also cast Governor Pritzker’s previous orders as improper continuations of

the initial emergency declaration. Given that the Governor has issued a new disaster

declaration, that argument is moot.

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contamination, blight, extended periods of inclement weather, [and] drought” as disasters. 20 Ill. Comp. Stat. 3305/4. Those events pose a threat that may persist for long periods of time and certainly beyond a single 30-day period. It is difficult to see why the legislature would recognize these long-running problems as disasters, yet divest the Governor of the tools he needs to address them.
This is not to say that the Governor’s authority to exercise his emergency powers is without restraint. To support each successive emergency declaration, the Governor must identify an “occurrence or threat of widespread or severe damage, injury or loss of life.” 20 Ill. Comp. Stat. 3305/4. Once an emergency has abated, the facts on the ground will no longer justify such findings, and the Governor’s emergency powers will cease. And, should this or any future Governor abuse his or her authority by issuing emergency declarations after a disaster subsides, affected parties will be able to challenge the sufficiency of those declarations in court. But in this case, Plaintiffs do not question the Governor’s factual findings, only his authority to issue successive emergency proclamations based on the same, ongoing disaster. For these reasons, the Court concludes that this claim lacks even a negligible chance of success.
c. Department of Health Act Lastly, Plaintiffs invoke Illinois’s Department of Health Act, 20 Ill. Comp. Stat. 2305/2(a). Under that Act, the “State Department of Public Health . . . . has supreme authority in matters of quarantine and isolation.” Id. § 2305/2(a). Before exercising its authority to “quarantine,” “isolate,” and make places “off limits the
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Case: 3:20-cv-50153 Document #: 39 Filed: 05/03/20 Page 34 of 37 PageID #:321
public,” however, the Department must comply with certain procedural requirements. Id. § 2305/2(c). As Plaintiffs see it, the Act vests the Department with the exclusive authority to quarantine and isolate Illinoisans, making Governor Pritzker’s orders ultra vires.
The problem for Plaintiffs is that the challenged Order does not impose restrictions that fall within the meaning of the Act. By definition, a “quarantine” refers to “a state of enforced isolation.” Quarantine, MerriamWebster, https://www.merriam-webster.com/dictionary/quarantine; see also, e.g., In re Washington, 735 N.W.2d 111, 121–22 (Wis. 2007) (explaining that to “quarantine” is “to isolate”); Com. v. Rushing, 99 A.3d 416, 423 (Pa. 2014) (indicating that to “place in quarantine” equates to requiring an individual to be “set apart” from other members of society (emphasis added)); Ex Parte Culver, 202 P. 661, 664 (Cal. 1921) (“‘Quarantine’ as a verb means to keep persons, when suspected of having contracted or been exposed to an [infectious] disease, out of a community, or to confine them to a given place therein, and to prevent intercourse between them and the people generally of such community.’” (emphasis added) (citation omitted)).
As discussed above, the Order empowers Cassell to, among other things, worship and pray with small groups of his parishioners, visit them in their homes (while observing social distancing), and lead drive-in sermons. See Daniel v. Putnam Cty., 38 S.E. 980, 981 (Ga. 1901) (noting that even stringent means of preventing disease dissemination are not “quarantine” unless they preclude
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engagement between the individual and members of their community). So, while the Order curtails the ability of individuals to gather in large groups, it falls far short of a “quarantine” as that term appears in the Act. The Court therefore concludes that this claim has almost no likelihood of success on the merits.
V. Equitable Considerations The remaining factors confirm that Plaintiffs are not entitled to a preliminary injunction. Under the Seventh Circuit’s “sliding scale approach,” the less likely a claimant is to win, the more that the “balance of harms [must] weigh in his favor.” Valencia v. City of Springfield, Ill., 883 F.3d 859, 966 (7th Cir. 2018). Given that Plaintiffs’ claims have little likelihood of prevailing on the merits, they cannot obtain a preliminary injunction without showing that the scales tip heavily in their direction. But, if anything, the balance of hardships tilts markedly the other way. Preventing enforcement of the latest stay-at-home order would pose serious risks to public health. The record reflects that COVID-19 is a virulent and deadly disease that has killed thousands of Americans and may be poised to devastate the lives of thousands more. April 30 Order at 1–2. And again, the sad reality is that places where people congregate, like churches, often act as vectors for the disease. See Pritzker Resp. at 12–13 (collecting examples). Enjoining the Order would not only risk the lives of the Beloved Church’s members, it also would increase the risk of infections among their families, friends, co-workers, neighbors, and surrounding communities.
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While Plaintiffs’ interest in holding large, communal in-person worship services is undoubtedly important, it does not outweigh the government’s interest in protecting the residents of Illinois from a pandemic. Certainly, the restrictions imposed by the Order curtail the ability of the congregants of Beloved Church to worship in whatever way they would like. But this is not a case where the government has “ban[ned]” worshippers from practicing their religion altogether, as Plaintiffs insist. PI Mot. at 8, ECF No. 7. And again, the Order empowers Cassell and the other members of his church to worship, sing, break bread, and pray together in drive-in services, online meetings, and in-person in groups of ten or fewer. April 30 Order § 2, ¶ 5(f). Such allowances go a long way towards mitigating the harms Plaintiffs identify.
Taking into account COVID-19’s virulence and lethality, together with the State’s efforts to protect avenues for religious activity, the Court finds that equitable considerations, including the promotion of the public interest, weigh heavily against the entry of the temporary restraining order and preliminary injunction that Plaintiffs seek. Coupled with the relative weakness of Plaintiffs’ legal arguments, this is fatal to their motion.
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VI. Conclusion These are unsettling times. Illinois and the rest of world are engaged in a massive effort to stave off the COVID-19 pandemic and the human suffering and death that it brings. At the same time, the stay-at-home orders issued by government officials as part of these efforts have resulted in their own form of loss and suffering—financial, emotional, psychological, and spiritual. The broader societal and political debate about how to balance these interests is beyond the purview of this Court. For present purposes, it suffices to state that Governor Pritzker’s April 30 Order satisfies minimal constitutional requirements as they pertain to religious organizations, like the Beloved Church. Accordingly, Plaintiffs’ motion for a temporary restraining order and a preliminary injunction is denied.

IT IS SO ORDERED.

ENTERED 5/3/20

______________________________________ John Z. Lee United States District Judge

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 Case: 3:20-cv-50153 Document #: 47 Filed: 05/05/20 Page 1 of 3 PageID #:335

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-forProfit Corporation, and PASTOR STEPHEN CASSELL, an individual,
Plaintiffs,
v.
JAY ROBERT PRITZKER, Governor of the State of Illinois, DAVID SNYDERS, Sheriff of Stephenson County, Illinois, STEVE SCHAIBLE, Chief of Police of the Village of Lena, Illinois, and CRAIG BEINTEMA, Administrator of the Department of Public Health of Stephenson County, Illinois, in their official capacities,
Defendants.

) ) ) No. 3:20-cv-50153 ) ) ) ) ) District Judge John Z. Lee ) ) ) Mag. Judge Iain D. Johnston ) ) ) ) ) ) )

PLAINTIFFS’ EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL AND MEMORANDUM OF LAW
Plaintiffs, by and through their counsel, the Thomas More Society, and pursuant to Federal Rule of Civil Procedure 62(d) and Federal Rule of Appellate Procedure 8(a)(1)(C), move this Court for an injunction pending appeal of this Court’s May 2, 2020 Minute Order (Dkt. 37) and May 3, 2020 Memorandum Opinion (Dt. 39), which are the subject of Plaintiffs’ Notice of Appeal (Dkt. 46) to the United States Court of Appeals for the Seventh Circuit.
MEMORANDUM OF LAW Plaintiffs have appealed to the Seventh Circuit from this Court’s May 2, 2020 Order (Dkt. 37) and May 3, 2020 Memorandum Opinion and Order (Dkt. 39) denying Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction (Dkt. 6). Because this Court denied Plaintiff’s motions for both a Temporary Restraining Order and a Preliminary Injunction,

Case: 3:20-cv-50153 Document #: 47 Filed: 05/05/20 Page 2 of 3 PageID #:336
Plaintiffs’ have appealed pursuant to 28 U.S.C. § 1292(a)(1) authorizing interlocutory appeals of federal district court orders refusing to grant an injunction. Plaintiffs now move for injunction pending appeal in this Court pursuant to Fed. R. App. P. 8(a)(1)(C). See Rakovich v. Wade, 834 F.2d 673, 673-74 (7th Cir. 1987) (stating that “trial court reserves the power to make orders appropriate to preserve the status quo while the appeal is pending” and that “a notice of appeal does not deprive the district court of jurisdiction over a motion for stay of its judgment” (emphasis in original)).
“The standard for granting a stay pending appeal mirrors that for granting a preliminary injunction.” In re A & F Enterprises, Inc., II, 742 F.3d 763, 766 (7th Cir. 2014). And Fed. R. App. P. 8(a)(1)(C) and (a)(2) authorizing injunctions pending appeal “does not suggest that the standard is different from that applicable to a motion to stay the district court’s judgment.” Cavel Int’l, Inc. v. Madigan, 500 F.3d 544, 547 (7th Cir. 2007). See also Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (stating that the factors for issuing a stay under Fed. R. App. P. 8(a) are “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies”).
Plaintiffs acknowledge this Court has already denied Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction under that analysis, but they are nonetheless required by Fed. R. App. P. 8(a)(1)(C) to first seek an injunction pending appeal in this Court before seeking it from the Seventh Circuit. Therefore, in support of this motion for an injunction pending appeal, Plaintiffs incorporate by reference their reasons and legal arguments provided in Plaintiffs’ Verified Complaint (Dkt. 1), Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. 6), Memorandum in Support of the Motion for Temporary
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Restraining Order and Preliminary Injunction (Dkt. 7), Reply in Support of Their Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. 33), and Declaration in Support of Reply (Dkt. 34).
CONCLUSION For the foregoing reasons, Plaintiffs request that this Court enter an injunction pending appeal.
Respectfully submitted, /s/Martin Whittaker Peter Breen Thomas Brejcha Martin Whittaker pbreen@thomasmoresociety.org tbrejcha@thomasmoresociety.org mwhittaker@thomasmoresociety.org THOMAS MORE SOCIETY 309 W. Washington St, Ste. 1250 Chicago, IL 60606 (312) 782-1680 Attorneys for Plaintiffs
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 Case: 3:20-cv-50153 Document #: 50 Filed: 05/06/20 Page 1 of 6 PageID #:340

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-for- )

Profit Corporation, and PASTOR STEPHEN

)

CASSELL, an individual,

)

)

Plaintiffs,

)

)

v.

)

)

JAY ROBERT PRITZKER, Governor of the State )

of Illinois, DAVID SNYDERS, Sheriff of

)

Stephenson County, Illinois, STEVE SCHAIBLE, )

Chief of Police of the Village of Lena, Illinois, and )

CRAIG BEINTEMA, Administrator of the

)

Department of Public Health of Stephenson

)

County, Illinois, in their official capacities,

)

)

Defendants.

)

Case No. 20-CV-50153 Honorable Judge Lee

DEFENDANTS STEPHENSON COUNTY SHERIFF SNYDERS AND HEALTH DEPARTMENT ADMINISTRATOR BEINTEMA’S RESPONSE TO PLAINTIFFS’
MOTION FOR AN EMERGENCY INJUNCTION PENDING APPEAL

This court should deny Plaintiffs’ Motion for Injunction Pending Appeal pursuant to

Federal Rule of Civil Procedure 62. Plaintiffs assert in their motion that the standard for

granting a stay pending appeal under F.R.C.P 62 mirrors the standard for granting a preliminary

injunction in the trial court. (Doc. 47 at 2 (citing In re A & F Enterprises, Inc., II, 742 F.3d 763, 766 (7th Cir. 2014).) But, “in the context of a stay pending appeal, where the applicant’s

arguments have already been evaluated on the success scale, the applicant must make a stronger

threshold showing of a likelihood of success to meet his burden.” In re Matter of Forty-Eight Insulations, Inc., 115 F.3d 1294, 1301 (7th Cir. 1997) (citing Adams v. Walker, 488 F.2d 1064, 1065 (7th Cir. 1973) for the proposition that a stay movant must make a “strong” and

“substantial” showing of likelihood of success on the appeal.) Where a court denies a

1

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preliminary injunction on the merits, the court should also deny a request for stay pending appeal. Id.
Plaintiffs acknowledge that this court already denied their request for preliminary injunction (doc. 47 at 7; doc. 39), but assert that they must move for this injunction pending appeal as a formality before they seek an injunction in the appellate court pursuant to F.R.A.P. 8(a)(1)(c). So, in support of this motion, Plaintiffs simply rely on and incorporate their Verified Complaint, Motion for Temporary Restraining Order and Preliminary Injunction, Memorandum in Support of their Motion for Temporary Restraining Order and Preliminary Injunction, Reply in Support of their Motion for Temporary Restraining Order and Preliminary Injunction, and Declaration in Support of Reply. They do not assert any new argument or facts.
This court denied Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction on the basis, inter alia, that the Plaintiffs have “little likelihood of prevailing on the merits[.]” (Doc. 39 at 35.) Having simply reasserted their prior arguments, Plaintiffs cannot overcome the burden of demonstrating a strong or substantial showing of likelihood of success on appeal. For these reasons, and for all of the reasons set forth in this court’s Memorandum Opinion & Order (doc. 39) and in the County Defendants’ Response to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (doc. 27), this court should deny Plaintiffs’ Motion for Injunction Pending Appeal.
WHEREFORE Defendants Stephenson County Sheriff Snyders and Health Department Administrator Beintema request that this court deny Plaintiffs’ Motion for Injunction Pending Appeal and for any further relief this court deems necessary.
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Benjamin M. Jacobi, #6296811 O’Halloran Kosoff Geitner & Cook, LLC 650 Dundee Road, #475 Northbrook, Illinois 60062 T: 847-291-0200 F: 847-291-9230 bjacobi@okgc.com

DAVID SNYDERS and CRAIG BEINTEMA
/s/Benjamin M. Jacobi One of their attorneys

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-for- )

Profit Corporation, and PASTOR STEPHEN

)

CASSELL, an individual,

)

)

Plaintiffs,

)

)

v.

)

)

JAY ROBERT PRITZKER, Governor of the State )

of Illinois, DAVID SNYDERS, Sheriff of

)

Stephenson County, Illinois, STEVE SCHAIBLE, )

Chief of Police of the Village of Lena, Illinois, and )

CRAIG BEINTEMA, Administrator of the

)

Department of Public Health of Stephenson

)

County, Illinois, in their official capacities,

)

)

Defendants.

)

Case No. 20-CV-50153 Honorable Judge Lee

CERTIFICATE OF SERVICE

I hereby certify that on May 6, 2020, I served Defendant Sheriff Snyders and Administrator Beintema’s Response to Plaintiffs’ Motion for Injunction Pending Appeal by filing same with the CM/ECF system, which shall provide electronic notice to the following counsel of record:

See Service List

DAVID SNYDERS and CRAIG BEINTEMA

/s/Benjamin M. Jacobi Attorney for Defendant O’Halloran Kosoff Geitner & Cook, LLC 650 Dundee Road, Suite 475 Northbrook, Illinois 60062 Telephone: (847) 291-0200 Facsimile: (847) 291-9230

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Case: 3:20-cv-50153 Document #: 50 Filed: 05/06/20 Page 5 of 6 PageID #:344
SERVICE LIST
Plaintiffs The Beloved Church and Stephen Cassell
Peter Breen pbreen@thomasmoresociety.org
Thomas Brejcha, Jr. tbrejcha@thomasmoresociety.org
Martin Whittaker privaterecht@gmail.com
Governor Jay B. Pritzker
Christopher Wells cwells@atg.state.il.us
Kelly Bauer kbauer@atg.state.il.us
Hal Dworkin hdworkin@atg.state.il.us
R. Douglas Rees drees@atg.state.il.us
Sarah Hughes Newman snowman@atg.state.il.us
Steve Schaible
Robert Pottinger rcpottinger@bslbv.com
Darron Burke dburke@bslbv.com
Dominick Lanzito dlanzito@pjmchicago.com
Jennifer Turiello jturiello@pjmchicago.com
Kevin Casey kcasey@pmjchicago.com
5

Case: 3:20-cv-50153 Document #: 50 Filed: 05/06/20 Page 6 of 6 PageID #:345 Paul O’Grady pogrady@pjmchicago.com Thomas Green tgreen@bslbv.com
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 Case: 3:20-cv-50153 Document #: 51 Filed: 05/06/20 Page 1 of 5 PageID #:346

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE BELOVED CHURCH, an Illinois notfor-profit corporation, and PASTOR STEPHEN CASSELL, an individual,
Plaintiffs,

No. 20-cv-50153

v.

Honorable John Z. Lee

GOVERNOR JB PRITZKER, et al.,

Defendants.

THE GOVERNOR’S OPPOSITION TO PLAINTIFFS’ MOTION FOR AN INJUNCTION PENDING APPEAL

Plaintiffs once again ask this Court to intercede on their behalf on an emergency basis. But

Plaintiffs have shown they have no interest in respecting this Court’s decisions unless the Court

rules in their favor. On Saturday evening, Plaintiffs lost their motion for a temporary restraining

order and preliminary injunction against Governor Pritzker’s stay-at-home order. Then, the next

morning, Plaintiffs went ahead anyway and convened several dozen people in close quarters. By

the estimation of their counsel’s spokesperson, 60 to 80 people were in attendance1 at Plaintiffs’

in-person worship service, in direct violation of the executive order and the public health

guidelines that are designed to protect Plaintiffs’ congregants and all who might come into contact

with them from the spread of COVID-19. Having disregarded this Court’s expedited judgment,

Plaintiffs now again turn to this Court for another “emergency” determination—which they

1 Jeremy Gorner, “Northwest Illinois church holds services days after filing lawsuit against Gov. J.B. Pritzker over stay-at-home order,” Chicago Tribune (May 4, 2020), https://www.chicagotribune.com/coronavirus/ct-coronavirus-illinois-church-holds-services-lawsuit20200503-ghvy3ob265etnegcccqyo6q3rq-story.html (last visited May 6, 2020).

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apparently will respect only if it is in their favor. Their motion for an injunction pending an appeal should be denied.
Plaintiffs note that parties seeking a stay or an injunction pending appeal must satisfy the test for a preliminary injunction, which Plaintiffs acknowledge they have already lost. (ECF No. 47 at 2.) Plaintiffs appropriately cite Cavel Int’l Inc. v. Madigan, 500 F.3d 544, 547 (7th Cir. 2007), and Hilton v. Braunskill, 481 U.S. 770, 776 (1987), for the test. But as Judge Easterbrook pointed out in his dissent in Cavel, the Supreme Court’s holding in Hilton requires a party seeking an injunction pending appeal—especially a party that has already lost—to make a “strong showing” it is likely to prevail on appeal. Cavel, 500 F.3d at 549. Here, Plaintiffs simply incorporate their prior briefs and do not even try to make any new showing, let alone a strong one, that they are likely to prevail on appeal. They do not because they cannot.
A. Plaintiffs Are Not Likely to Succeed on the Merits. On May 3, 2020—four days after Plaintiffs filed this lawsuit—the Court issued a 37-page opinion (“Opinion,” ECF No. 39), explaining its denial the previous evening of Plaintiffs’ emergency motion for a temporary restraining order and preliminary injunction (“TRO-PI Motion”) on their nine-count complaint. The same reasoning articulated in the Court’s Opinion now requires denial of Plaintiffs’ motion for an injunction pending appeal. Plaintiffs filed their complaint and TRO-PI Motion on Thursday, April 30, 2020. Plaintiffs’ motion challenged the constitutionality of the Governor’s “stay-at-home” orders related to the COVID-19 pandemic: Executive Orders 2020-10 and 2020-18, and then, through their reply brief, Executive Order 2020-32 (even though it expressly recognizes the free exercise of religion as an “essential activity”). Plaintiffs alleged that these orders violate their free exercise and free speech rights under the First Amendment to the U.S. Constitution and analogous provisions in the Illinois
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Constitution. Plaintiffs demanded immediate adjudication by this Court of their TRO-PI Motion, but after losing went ahead and held their large, in-person Sunday service in violation of the current executive order.
Plaintiffs do not have even a “negligible” chance of success on any of their claims. See Cavel, 500 F.3d at 548. This Court has already concluded that Plaintiffs “have a less than negligible chance of prevailing” on their First Amendment Free Exercise claim. (ECF No. 39 at 16.) Applying the Supreme Court’s long-established precedent in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1906), the Court determined that the current executive order satisfies the reasonableness standard applicable to assessing the constitutionality of government action taken in response to an emergency such as the current COVID-19 pandemic. (ECF No. 39 at 14–16.)
The Court also applied traditional Free Exercise analysis to conclude that the current executive order is a “neutral, generally applicable law” subject to rational basis scrutiny consistent with Employment Division v. Smith, 494 U.S. 872 (1990), and Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). (ECF No. 39 at 16–26.) Applying rational basis scrutiny, the Court concluded: “Given the importance of slowing the spread of COVID-19 in Illinois, the Order satisfies [rational basis] scrutiny, and Plaintiffs do not seriously argue otherwise.” (ECF No. 39 at 26.) The Court’s application of Jacobson also shows Plaintiffs have no chance of success on their Free Speech and Free Assembly claims under the First Amendment and the Illinois Constitution (Counts III–VI).
Although Plaintiffs did not press their under-developed substantive due process claim in Count VII in their TRO-PI Motion, it also has no chance of success. That claim is duplicative of Plaintiffs’ First Amendment claims and fails for the same reasons. See County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (“Where a particular Amendment provides an explicit source of
3

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constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.”)
The Court also correctly recognized that “the Eleventh Amendment almost certainly forecloses plaintiffs’ state law claims here.” (ECF 39 at 28.) Under the Supreme Court’s decision in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), Plaintiffs’ claims seeking injunctive relief to compel the Governor to comply with state law (Counts II, IV, VI, VIII, and IX) are barred by sovereign immunity under the Eleventh Amendment. Plaintiffs’ state statutory claims also are likely to fail on their substantive merits, as the Court concluded in the Opinion regarding the TRO-PI Motion. (ECF No. 39 at 28–35.)
Based on this Court’s reasoning in the Opinion, it should conclude that Plaintiffs have no plausible chance of succeeding on the merits on an appeal. Plaintiffs’ request for an injunction pending appeal should be denied on this basis.
B. The Balancing of the Harms Does Not Justify an Injunction. In deciding whether to grant or deny an injunction pending appeal, the Court also must consider the balance of harms and apply the sliding scale where “[t]he more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir. 1984); see also Cavel, 500 F.3d at 547. Given the public health emergency affecting Illinois, the Court has already found that this scale tilts decidedly in Defendants’ favor (ECF No. 39 at 35–36), and Plaintiffs again offer nothing new in their motion to cause the Court to decide otherwise.
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The Court should deny Plaintiffs’ motion for an additional reason noted above: Plaintiffs disregarded this Court’s May 2, 2020 ruling by proceeding with an in-person gathering of 60 to 80 people on Sunday, May 3, 2020, that exceeded the 10-person limitation in the current executive order. Instead of respecting the Court’s decision, complying with the current executive order, and pursuing their right to appeal the Court’s decision, Plaintiffs treated the Court’s decision as meaningless. Plaintiffs do not need this Court’s expedited ruling when they have shown their intention to hold their large in-person services in any manner they choose, despite the recognized threat to public health.
The Court should deny Plaintiffs’ motion because they do not and cannot meet the standards discussed above. Their disregard for the judicial process provides an additional reason for the Court to deny their motion.
For each of these reasons, Governor JB Pritzker requests that the Court deny Plaintiffs’ motion for an injunction pending appeal.

Dated: May 6, 2020
KWAME RAOUL Attorney General of Illinois
R. Douglas Rees Christopher G. Wells Sarah H. Newman Kelly C. Bauer Hal Dworkin Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601

Respectfully submitted,
/s/ Christopher G. Wells
Chief, Public Interest Division Office of the Illinois Attorney General 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 (312) 814-1134 cwells@atg.state.il.us

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 Case: 3:20-cv-50153 Document #: 52 Filed: 05/06/20 Page 1 of 5 PageID #:351

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

THE BELOVED CHURCH, an Illinois Not-for- )

Profit Corporation, and PASTOR STEPHEN

)

CASSELL, an individual,

)

)

Plaintiffs,

)

)

v.

)

)

JAY ROBERT PRITZKER, Governor of the State )

of Illinois, DAVID SNYDERS, Sheriff of

)

Stephenson County, Illinois, STEVE SCHAIBLE, )

Chief of Police of the Village of Lena, Illinois and )

CRAIG BEINTEMA, Administrator of the

)

Department of Public Health of Stephenson County, )

Illinois, in their official capacities,

)

)

Defendants.

)

Case No.: 3:20-cv-50153
Hon. Judge John Z. Lee Magistrate Judge Iain D. Johnston

DEFENDANT STEVE SCHAIBLE’S RESPONSE TO PLAINTIFFS’ EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL

NOW COMES Defendant STEVE SCHAIBLE, Chief of Police of the Village of Lena,

Illinois (collectively “Defendant Schaible”), by and through his attorneys, PETERSON,

JOHNSON & MURRAY CHICAGO, LLC, and for his Response to Plaintiffs’ Emergency Motion

for Injunction Pending Appeal, states as follows:

I. INTRODUCTION

Plaintiffs contend that an injunction pending appeal is necessary to preserve the status quo

and have an effective appellate review of this Court’s denial of their motion for a preliminary

injunction. Plaintiffs are wrong. An injunction pending an appeal is generally considered

extraordinary relief for which the moving party bears a heavy burden of proof. Furthermore, a

decision concerning an injunction pending an appeal is similar in nature to a decision granting or

denying a motion for a preliminary injunction. By denying Plaintiffs’ Motion for a Temporary 1

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Restraining Order and Preliminary Injunction, the Court has already expressed its view that Plaintiffs cannot satisfy any of the preliminary injunction factors, including the reasonable likelihood of success factor. The Court (appropriately) never wavered in that assessment. Plaintiffs’ instant motion gives the Court no reason to deviate from or abandon its prior analysis in that regard.
Notably, Plaintiffs have not taken umbrage with any of the Court’s findings of fact, its balancing of the factors for a preliminary injunction or the legal conclusions memorialized in the May 3, 2020 order. Plaintiffs’ failure in that regard is fatal to their present motion. As it is abundantly clear that Plaintiffs are just going through the proverbial motions of seeking an injunction pending appeal with no effort whatsoever being devoted toward addressing the Court’s findings and analysis on the preliminary injunction front, the Court can justifiably deny their request. II. STATEMENT OF FACTS
As and for his Statement of Facts, Defendant Schaible adopts and incorporates by reference the Statement of Facts set forth in his Response to Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction. (Doc. 29, Response). In addition to the foregoing facts, Defendant Schaible notes that on May 2, 2020, the Court issued an order denying Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction. (Doc. 37, Order). The Court’s May 2, 2020 order further indicated that a written opinion and additional order explaining its ruling in that regard would follow. (Doc. 37, Order).
On May 3, 2020, the Court issued the said written opinion and additional order, finding, among other things, that Defendant Governor Pritzker’s Executive Order 2020-32 passed constitutional muster and that Plaintiffs could not satisfy any preliminary injunction factors. (Doc.
2

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39, Opinion). Earlier that same day, in defiance of Defendant Pritzker’s Executive Order 2020-32, approximately 100 parishioners and/or presumed guests attended in-person services at The Beloved Church without incident.1 On May 4, 2020, Plaintiffs filed their notice of interlocutory appeal. III. ARGUMENT
A. Applicable legal standards Though not referenced in Plaintiffs’ motion, the source of their request for an injunction pending appeal is Federal Rule of Civil Procedure 62(c), which provides, in pertinent part: “While an appeal is pending from an interlocutory order . . . that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” See Fed. R. Civ. P. 62(c); see also Fed. R. App. P. 8(a) (providing that where a stay of an injunction pending appeal has been denied by a district court, the request for a stay may be renewed in the appellate court). A motion for an injunction pending appeal is an extraordinary remedy. Kuri v. Edelman, 491 F.2d 684, 687 (7th Cir. 1974). A decision concerning an injunction pending appeal is similar in nature to a decision granting or denying a motion for a preliminary injunction. Specifically, to make a such determination, a court must consider: (1) “whether the stay applicant has made a strong showing that he is likely to succeed on the merits” on appeal; (2) “whether the applicant
1 Such facts are the proper subject of judicial notice as they are uncontested and are the subject of a great deal of publicity in the print and broadcast media. See, e.g., https://wrex.com/2020/05/03/beloved-churchsin-person-church-service-causes-mixed-emotions/; see also Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781, 787 (7th Cir. 2004) (taking judicial notice of a newspaper article). Additionally, these facts were chronicled as part of Defendant Pritzker’s May 4, 2020 daily coronavirus news conference, to which Plaintiffs themselves have frequently referred in their prior submissions to the Court. (Doc. 33, Reply, p. 3). Finally, the reference to the fact that presumed additional guests attended the in-person service at the Beloved Church on Sunday, May, 3, 2020, derives from Pastor Cassell’s prior representations to the Court that only 60 to 80 people regularly attend Sunday Service at The Beloved Church. (Doc. 33, Reply, p. 17; Doc. 34, Cassell Declaration, ¶ 12).
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will be irreparably injured absent a stay”; (3) “whether issuance of the stay will substantially injure the other parties interested in the proceeding”; and (4) “where the public interest lies.” Glick v. Koenig, 766 F.2d 265, 269 (7th Cir. 1985).
B. There is no basis for granting the extraordinary relief Plaintiffs request. Nothing in terms of Plaintiffs’ presented legal averments has apparently changed in the four (4) days since the Court denied Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction. To that end, Plaintiffs have not endeavored to present any additional arguments to the Court, choosing instead to merely adopt and incorporate by reference their prior submissions. In doing so, Plaintiffs see fit to basically act as though the Court’s findings of fact, balancing of the factors for a preliminary injunction and the legal conclusions memorialized in its May 3, 2020 order simply do not exist. Such a perfunctory presentation does nothing to demonstrate that Plaintiffs’ appeal has significant merit. Indeed, Plaintiffs have given the Court no reason to believe that its decision denying Plaintiffs’ request for a preliminary injunction was wrong and will be reversed on appeal. With respect to the irreparable injury factor, Plaintiffs can hardly be said to have made a compelling case that they need an injunction pending appeal to avert serious irreparable harm. In fact, Plaintiffs’ conduct this past weekend belies such an argument. Again, on Sunday, May 3, 2020, Pastor Cassell conducted an in-person service at The Beloved Church without incident. Furthermore, Defendants Schaible, Snyder and Beintema have previously advised the Court that they have no intention of enforcing Defendant Pritzker’s Executive Order 2020-23 against Plaintiffs. For his part, Defendant Schaible makes that same attestation herein. Finally, as the Court has already determined, Defendant Pritzker’s Executive Order 2020-23 permits gatherings of up to ten people and drive-in services, both of which are capable of being conducted at The Beloved
4

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Church. In short, a case of irreparable injury continues not to arise from the circumstances before the Court.
Additionally, it is clear that consideration of the third and fourth aforesaid factors do not weigh in favor of granting Plaintiffs’ requested relief. For the reasons already noted by the Court in its May 3, 2020 order, an injunction enjoining the enforcement of Defendant Pritzker’s Executive Order 2020-23, even only if for the duration of Plaintiffs’ planned appeal, would pose serious risks to public health. Again, Plaintiffs have provided the Court with no additional argument or reasoning to cause the Court to in any way second guess its analysis in that regard.
Finally, in the interest of brevity and so as to comply with the Court’s May 5, 2020 order limiting any response to Plaintiff’s instant motion to five (5) pages, Defendant Schaible adopts and incorporates by reference herein the arguments presented by Defendants Pritzker, Snyder and Beintema in opposition to Plaintiffs’ motion. IV. CONCLUSION

WHEREFORE Defendant STEVE SCHAIBLE, respectfully requests that this Court enter

an order denying Plaintiffs’ Emergency Motion for Injunction Pending Appeal.

Respectfully submitted,

Date: May 6, 2020

/s/ Paul O’Grady Attorneys for Defendant Steve Schaible

Paul O’Grady (pogrady@pjmchicago.com) Dominick L. Lanzito (dlanzito@pjmchicago.com) Kevin Casey (kcasey@pjmchicago.com) Jennifer L. Turiello (jturiello@pjmchicago.com) PETERSON, JOHNSON & MURRAY CHICAGO, LLC 200 West Adams Street, Suite 2125 Chicago, Illinois 60606 Direct: (312) 724-8035 T: (312) 782-7150 F: (312) 896-9318
5