Case: 1:20-cv-02782 As of: 06/07/2020 07:06 PM CDT 1 of 6
APPEAL,CUMMINGS
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:20−cv−02782

Elim Romanian Pentecostal Church et al v. Pritzker Assigned to: Honorable Robert W. Gettleman Case in other court: 20−01811 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/07/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Elim Romanian Pentecostal Church

represented by Daniel Joseph Schmid Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (407) 875−1776 Email: dschmid@lc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Horatio Gabriel Mihet Liberty Counsel 1055 Maitland Center Commons Second Floor Maitland, FL 32751 (800) 671−1776 Email: hmihet@liberty.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Roger K Gannam Liberty Counsel PO Box 540774 Orlando, FL 32854 (407) 875−1776 Email: rgannam@lc.org PRO HAC VICE ATTORNEY TO BE NOTICED

Sorin Adrian Leahu Mauck & Baker, LLC One North LaSalle Street Suite 600 Chicago, IL 60602 (312) 977−0478 Email: sleahu@mauckbaker.com ATTORNEY TO BE NOTICED

Plaintiff Logos Baptist Ministries

represented by Daniel Joseph Schmid (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Roger K Gannam (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:20-cv-02782 As of: 06/07/2020 07:06 PM CDT 2 of 6
Sorin Adrian Leahu (See above for address) ATTORNEY TO BE NOTICED
Horatio Gabriel Mihet (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Jay Robert Pritzker in his official capacity as Governor of the State of Illinois

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
Gretchen Elizabeth Helfrich Office of the Illinois Attorney General Special Litigation Bureau 100 West Randolph Street, 11th Floor Chicago, IL 60601 (312) 814−3000 Email: ghelfrich@atg.state.il.us 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
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 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 Jeanne Gallo Illinois Office of the Attorney General 100 W. Randolph Chicago, IL 60601 312−814−8309

Case: 1:20-cv-02782 As of: 06/07/2020 07:06 PM CDT 3 of 6
Email: sgallo@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

Date Filed 04/24/2020
05/07/2020
05/07/2020 05/07/2020 05/08/2020 05/08/2020 05/08/2020 05/08/2020 05/08/2020 05/08/2020 05/08/2020

# Docket Text
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 (ec, ) (Entered: 05/08/2020)
1 COMPLAINT for Emergency Temporary Restraining Order and Preliminary Injunction filed by Elim Romanian Pentecostal Church, Logos Baptist Ministries; Filing fee $ 400, receipt number 0752−16996654. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V)(Mihet, Horatio) (Entered: 05/07/2020)
2 CIVIL Cover Sheet (Mihet, Horatio) (Entered: 05/07/2020)
3 Designation of Local Counsel by Elim Romanian Pentecostal Church, Logos Baptist Ministries (Mihet, Horatio) (Entered: 05/07/2020)
4 MOTION by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries for temporary restraining order and preliminary injunction and for emergency hearing (Mihet, Horatio) (Entered: 05/08/2020)
5 MEMORANDUM by Elim Romanian Pentecostal Church, Logos Baptist Ministries in support of motion for temporary restraining order 4 and for preliminary injunction and emergency hearing (Mihet, Horatio) (Entered: 05/08/2020)
6 MOTION by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries for leave to file excess pages in Memorandum in Support of Emergency Motion for Temporary Restraining Order and Preliminary Injunction Instanter (Mihet, Horatio) (Entered: 05/08/2020)
7 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−16996711. (Mihet, Horatio) (Entered: 05/08/2020)
8 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−16996713. (Schmid, Daniel) (Entered: 05/08/2020)
CASE ASSIGNED to the Honorable Robert W. Gettleman. Designated as Magistrate Judge the Honorable Jeffrey I. Cummings. Case assignment: Random assignment. (td, ) (Entered: 05/08/2020)
10 MINUTE entry before the Honorable Robert M. Dow, Jr: This matter is before Judge Dow as the emergency judge. Plaintiffs' motion for temporary restraining order and preliminary injunction [docket entry 769 on the emergency docket; docket entry 4 in the regular civil docket in Case No. 20−cv−2782] will be handled by Judge Gettleman, who is the assigned judge. The Clerk is directed to terminate the motion in the emergency docket and all further filings will be made in the regular civil docket. Counsel are directed to contact Judge Gettleman's Courtroom Deputy, Claire Newman (Claire_Newman@ilnd.uscourts.gov) with any inquiries. Mailed notice (cdh, ) (Entered: 05/08/2020)

Case: 1:20-cv-02782 As of: 06/07/2020 07:06 PM CDT 4 of 6

05/08/2020 05/08/2020 05/08/2020
05/08/2020 05/08/2020 05/08/2020 05/08/2020 05/09/2020 05/09/2020 05/09/2020 05/09/2020 05/09/2020 05/10/2020 05/10/2020 05/10/2020

11 ATTORNEY Appearance for Defendant Jay Robert Pritzker by R. Douglas Rees (Rees, R.) (Entered: 05/08/2020)
12 ATTORNEY Appearance for Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries by Sorin Adrian Leahu (Leahu, Sorin) (Entered: 05/08/2020)
13 MINUTE entry before the Honorable Robert W. Gettleman: Plaintiffs have filed a motion for temporary restraining order ("TRO") and preliminary injunction 4 seeking to temporarily and preliminarily enjoin what plaintiffs refer to as defendant's "Gathering Orders" so that plaintiffs can begin conducting in−person religious services for more than 10 people beginning Sunday, May 10, 2020. Defendant is directed to file a response to the motion on or before 5:00 p.m., May 9, 2020. Plaintiffs may file a reply on or before 5:00 p.m., May 10, 2020. Due to the timing of the filing of the complaint and motion by plaintiffs (at approximately 11:15 p.m. May 7, 2020), and the briefing schedule set by the court, the court declines to issue a TRO with respect to this Sunday's May 10, 2020 religious services. The court will consider the remainder of the motion after receiving the parties' briefs. Plaintiffs' motion for leave to file excess pages in their memorandum of law in support of motion for temporary restraining order and preliminary injunction instanter 6 and attorneys Horatio G. Mihet 7 and Daniel J. Schmid's 8 motions to appear pro hac vice are granted. Mailed notice (cn). (Entered: 05/08/2020)
14 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Kelly C. Bauer (Bauer, Kelly) (Entered: 05/08/2020)
15 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Hal Dworkin (Dworkin, Hal) (Entered: 05/08/2020)
16 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Christopher Graham Wells (Wells, Christopher) (Entered: 05/08/2020)
17 MOTION by Defendant Jay Robert Pritzker to transfer case and reassign as a related case (Wells, Christopher) (Entered: 05/08/2020)
18 RESPONSE by Elim Romanian Pentecostal Church, Logos Baptist Ministriesin Opposition to MOTION by Defendant Jay Robert Pritzker to transfer case and reassign as a related case 17 (Schmid, Daniel) (Entered: 05/09/2020)
19 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Sarah Jeanne Gallo (Gallo, Sarah) (Entered: 05/09/2020)
20 MOTION by Defendant Jay Robert Pritzker for leave to file excess pages in opposition to Plaintiffs' motion for temporary restraining order and preliminary injunction (Rees, R.) (Entered: 05/09/2020)
21 RESPONSE by Jay Robert Pritzkerin Opposition to MOTION by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries for temporary restraining order and preliminary injunction and for emergency hearing 4 (Wells, Christopher) (Entered: 05/09/2020)
22 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Sarah Hughes Newman (Newman, Sarah) (Entered: 05/09/2020)
23 ORDER Signed by the Honorable Robert W. Gettleman on 5/10/2020: For the reasons described in the attached ORDER, defendant's Motion to Transfer and Reassign Case (Doc. 17 ) is denied. Mailed notice (cn). (Entered: 05/10/2020)
24 MOTION by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries for leave to file excess pages instanter (Schmid, Daniel) (Entered: 05/10/2020)
25 REPLY by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries to motion for temporary restraining order 4 (Attachments: # 1 Exhibit A − Sixth Circuit Injunction Pending Appeal as to In−Person Gatherings, # 2 Exhibit B − Western District of Kentucky Injunction Pending Appeal Concerning In−Person Services, # 3 Exhibit C − Eastern District of Kentucky Temporary Restraining Order, # 4 Exhibit D − Supplemental Declaration of Pastor Cristian Ionescu)(Schmid, Daniel) (Entered: 05/10/2020)

Case: 1:20-cv-02782 As of: 06/07/2020 07:06 PM CDT 5 of 6

05/10/2020 05/10/2020
05/11/2020
05/11/2020
05/12/2020 05/12/2020 05/12/2020
05/13/2020
05/13/2020
05/13/2020 05/13/2020 05/13/2020 05/14/2020 05/14/2020

26 MOTION by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries for leave to file Corrected Reply in Support of Motion for Temporary Restraining Order and Preliminary Injunction (Schmid, Daniel) (Entered: 05/10/2020)
27 REPLY by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries to motion for temporary restraining order 4 Amended Reply (Attachments: # 1 Exhibit A − Sixth Circuit Injunction Pending Appeal as to In−Person Gatherings, # 2 Exhibit B − Western District of Kentucky Injunction Pending Appeal Concerning In−Person Services, # 3 Exhibit C − Eastern District of Kentucky Temporary Restraining Order, # 4 Exhibit D − Supplemental Declaration of Pastor Cristian Ionescu)(Schmid, Daniel) (Entered: 05/10/2020)
28 MINUTE entry before the Honorable Robert W. Gettleman: The governor's motion for leave to file overlength brief instanter 20 , plaintiffs' motion for leave to file excess pages in their reply memorandum of law in support of motion for temporary restraining order and preliminary injunction instanter 24 , and plaintiffs' motion for leave to file corrected reply with table of contents and table of authorities 26 are granted. Mailed notice (cn). (Entered: 05/11/2020)
29 MINUTE entry before the Honorable Robert W. Gettleman: Defendant Governor J Pritzker is given leave to file a supplemental sur−reply on or before noon, May 12, 2020, responding to the additional factual and legal arguments contained in plaintiffs' amended reply brief 27 . No further briefs concerning the instant motion for a TRO and preliminary injunction will be accepted by the court. Mailed notice (cn). (Entered: 05/11/2020)
30 SUR−REPLY by Defendant Jay Robert Pritzker to text entry, 29 , motion for temporary restraining order 4 (Attachments: # 1 Exhibit Exhibit A − 5−10−20 Chicago Sun−Times Article)(Wells, Christopher) (Entered: 05/12/2020)
SUMMONS Issued as to Defendant Jay Robert Pritzker. (ng, ) (Entered: 05/12/2020)
31 MOTION by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries for leave to file Second Supplemental Declaration of Pastor Cristian Ionescu in Support of TRO/PI Motion (Attachments: # 1 Exhibit A − Second Supplemental Declaration of Pastor Cristian Ionescu in Support of TRO/PI Motion)(Mihet, Horatio) (Entered: 05/12/2020)
32 SUMMONS RETURNED EXECUTED filed by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries regarding Complaint, Motion for Temporary Restraining Order and Preliminary Injunction, Summons served on Governor Jay Robert Pritzker on 5/12/2020 (Schmid, Daniel) (Docket Text Modified by Clerks Office on 5/13/2020 (ec), ). (Entered: 05/13/2020)
33 MEMORANDUM Opinion and Order signed by the Honorable Robert W. Gettleman on 5/13/2020: Plaintiffs' motion for leave to file second supplemental declaration 31 is granted. For the reasons set forth in the attached Memorandum Opinion and Order, plaintiffs' motion for temporary restraining order and preliminary injunction (Doc. 4 ) is denied. Mailed notice (cn). (Entered: 05/13/2020)
34 NOTICE of appeal by Elim Romanian Pentecostal Church, Logos Baptist Ministries regarding orders 33 Filing fee $ 505, receipt number 0752−17009611. Receipt number: n (Schmid, Daniel) (Entered: 05/13/2020)
35 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−17009707. (Attachments: # 1 Addendum − Courts Admitted)(Gannam, Roger) (Entered: 05/13/2020)
36 MOTION by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist MinistriesEmergency Injunction Pending Appeal (Mihet, Horatio) (Entered: 05/13/2020)
37 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 34 (ec, ) (Entered: 05/14/2020)
38 TRANSMITTED to the 7th Circuit the short record on notice of appeal 34 . Notified counsel (ec, ) (Entered: 05/14/2020)

Case: 1:20-cv-02782 As of: 06/07/2020 07:06 PM CDT 6 of 6

05/14/2020
05/14/2020 05/19/2020
05/26/2020
05/28/2020 05/28/2020 05/29/2020 06/02/2020 06/03/2020 06/04/2020

39 MINUTE entry before the Honorable Robert W. Gettleman: For the reasons set forth in this court's Memorandum Opinion and Order 33 , Plaintiffs' emergency motion for injunction pending appeal and supporting memorandum 36 is denied. Attorney Roger K. Gannam's motion to appear pro hac vice is granted. Mailed notice (cn). (Entered: 05/14/2020)
40 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 34 ; USCA Case No. 20−1811 (ec, ) (Entered: 05/15/2020)
41 ORDER dated 5/16/2020 from the 7th Circuit regarding notice of appeal 34 ; Appellate case no.: 20−1811: Accordingly, IT IS FINALLY ORDERED that plaintiffs−appellants' motion to strike is DENIED. The defendant−appellee is GRANTED leave to file his overlength response, which was prepared and filed in less than 12 hours in accordance with this court's order. (ec,) (Entered: 05/19/2020)
42 ORDER ORDER Fourth Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on May 26, 2020. This Order does not extend or modify any deadlines set in civil cases. For non−emergency motions, no motion may be noticed for presentment on a date earlier than July 15, 2020. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 5/26/2020: Mailed notice. (docket11, ) (Entered: 05/26/2020)
43 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Gretchen Elizabeth Helfrich (Helfrich, Gretchen) (PDF not legible) Modified on 5/29/2020 (aee, ). (Entered: 05/28/2020)
44 NOTICE by Gretchen Elizabeth Helfrich of Change of Address (Helfrich, Gretchen) (Entered: 05/28/2020)
45 ATTORNEY Appearance for Defendant Jay Robert Pritzker by Gretchen Elizabeth Helfrich Refiled (Helfrich, Gretchen) (Entered: 05/29/2020)
46 MOTION by Defendant Jay Robert Pritzker to stay pending appeal (Wells, Christopher) (Entered: 06/02/2020)
47 MINUTE entry before the Honorable Robert W. Gettleman: Plaintiffs are directed to respond to the Governor's motion to stay these proceedings pending appeal 46 on or before 6/8/2020; defendant may reply on or before 6/11/2020. The court will rule via CM/ECF. Mailed notice (cn). (Entered: 06/03/2020)
48 RESPONSE by Plaintiffs Elim Romanian Pentecostal Church, Logos Baptist Ministries to motion to stay 46 , set motion and R&R deadlines/hearings, 47 (Mihet, Horatio) (Entered: 06/04/2020)

 
 Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 1 of 46 PageID #:1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
Eastern Division

ELIM ROMANIAN PENTECOSTAL CHURCH, )

and LOGOS BAPTIST MINISTRIES,

)

)

Plaintiffs,

)

)

v.

)

JAY ROBERT PRITZKER, in his official capacity as Governor of the State of Illinois,

) )

)

Defendant.

)

)

)

Case No.

VERIFIED COMPLAINT FOR DECLARATORY RELIEF, TEMPORARY RESTRAINING ORDER, PRELIMINARY AND
PERMANENT INJUNCTIVE RELIEF, AND DAMAGES

Plaintiffs, ELIM ROMANIAN PENTECOSTAL CHURCH, and LOGOS BAPTIST

MINISTRIES (collectively, “Churches”), sue Defendant, JAY ROBERT PRITZKER, in his

official capacity as Governor of the State of Illinois (“Governor Pritzker” or the “State”), and

allege:

URGENCIES JUSTIFYING TEMPORARY RESTRAINING ORDER

1. In their Prayer for Relief, infra, and in the contemporaneously filed Motion for

Temporary Restraining Order (TRO), Plaintiffs seek a TRO restraining enforcement against

Plaintiffs of the various COVID-19 orders issued by Governor Pritzker and other State officials

purporting to prohibit Plaintiffs, on pain of criminal sanctions, from gathering in-person at Plaintiffs’ Churches for worship services that include more than 10 people, regardless of whether Plaintiffs meet or exceed the social distancing and hygiene guidelines pursuant to which the State disparately and discriminatorily allows so-called “essential” commercial and non-religious entities (e.g., liquor stores, marijuana dispensaries, warehouse clubs, and ‘big box’ stores) to accommodate

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 2 of 46 PageID #:2
large crowds and masses of persons without scrutiny or the 10-person limit. Governor Pritzker has made it clear that churches, such as Plaintiffs, will not be able to hold in-person gatherings of more than 10 people until Phase 4 of his Restore Illinois plan, and that gatherings of more than 50 cannot take place until Phase 5—which he has stated may take more than 1 year to achieve, and will only be available if there is some vaccine widely available.
2. As shown in the verified allegations below, Governor Pritzker’s Executive Orders relating to COVID-19 have been interpreted, applied, and enforced, including against Plaintiffs, such that Plaintiffs have been forced not to hold in-person religious services at their churches and forced to prohibit their congregants from attending their houses of worship.
3. At around the same time as Governor Pritzker’s Executive Orders surrounding COVID-19 were being used to threaten criminal sanctions on Plaintiffs, officials in other jurisdictions had similarly threatened to impose criminal sanctions on other religious gatherings. In Louisville, Kentucky, for example, the government threatened to use police to impose criminal sanctions on those individuals found in violation of similar COVID-19 orders and threatened to impose various sanctions on individuals found in violation of such orders. The United States District Court for the Western District of Kentucky found that the mere threat of such criminal sanction warranted a TRO. See On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020) [hereinafter On Fire]. The On Fire TRO enjoined the Mayor of Louisville from “enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with any prohibition on drive-in church services at On Fire.” Id. at *1 (emphasis added).
2

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 3 of 46 PageID #:3
4. In fact, the Illinois State Police—acting under the direction of Governor Pritzker’s orders—have publicly declared that they would enforce the Governor’s orders and have threatened to impose criminal sanctions on those found in violation of them.
5. Additionally, the Governor of Kansas had imposed a similar restriction on religious gatherings in Kansas, stating that gatherings of more than 10 individuals are prohibited, including religious gatherings. On April 18, 2020, the United States District for the District of Kansas issued a TRO enjoining Kansas officials from enforcing its discriminatory prohibition on religious gatherings and required the government to treat “religious” worship services the same as other similar gatherings that are permitted. See First Baptist Church. v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, *6–7 (D. Kan. Apr. 18, 2020) [hereinafter First Baptist]. The First Baptist TRO specifically stated that the government’s disparate treatment of religious gatherings was a violation of the Free Exercise Clause because it showed that “religious activities were specifically targeted for more onerous restrictions than comparable secular activities,” and that the churches had shown irreparable harm because they would “be prevented from gathering for worship at their churches” during the pendency of the executive order. Id. at *7–8 (emphasis added).
6. In discussing the Kansas orders—which imposed a 10-person limit on in-person gatherings similar to Governor Pritzker’s orders here—the court said that specifically singling out religious gatherings for disparate treatment while permitting other non-religious activities “show[s] that these executive orders expressly target religious gatherings on a broad scale and are, therefore, not facially neutral,” First Baptist, 2020 WL 1910021, at *7, and—much like here— “churches and religious activities appear to have been singled out among essential functions for stricter treatment. It appears to be the only essential function whose core purpose—association for the purpose of worship—had been basically eliminated.” Id. (emphasis added). Thus, the court found that a TRO was necessary, and that Kansas should be enjoined from enforcing its
3

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 4 of 46 PageID #:4
orders’ disparate terms against churches. Indeed, “it goes without saying that the government could not lawfully expressly prohibit individuals from meeting together for religious services.” Id. at *6 (emphasis added).
7. Additionally, the Sixth Circuit of Appeals has issued an emergency injunction pending appeal prohibiting the Kentucky Governor from enforcing prohibitions on religious worship services. See Maryville Baptist Church, Inc. v. Beshear, -- F.3d --, 2020 WL 2111316 (6th Cir. May 2, 2020). In that appeal challenging orders similar to Governor Pritzker’s orders here, the Sixth Circuit stated that “[t]he Governor’s actions substantially burden the congregants’ sincerely held religious practices—and plainly so. . . . Orders prohibiting religious gatherings, enforced by police officers telling congregants they violated a criminal law and by officers taking down license plate numbers, amount to a significant burden on worship gatherings.” 2020 WL 2111316, at *2 (emphasis added). Additionally, “[t]he way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches.” Id. “Outright bans on religious activity alone obviously count. So do general bans that cover religious activity when there are exceptions for comparable secular activities.” Id., at *3. In discussing the prohibitions on religious gatherings, the Sixth Circuit posed several questions of equal import here:
Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one. Id., at *4 (emphasis added). 8. Because the prohibition on religious gatherings substantially burdened Maryville Baptist’s sincerely held religious beliefs and was not the least restrictive means, the Sixth Circuit
4

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 5 of 46 PageID #:5
issued an injunction pending appeal enjoining the Kentucky Governor from enforcing his unconstitutional orders. Id., at *5.
9. Plaintiffs’ congregants are also threatened with criminal sanctions and penalties if, at any time, any number of individuals gather together for in-person worship services at Plaintiffs’ churches, and regardless of whether social distancing, enhanced sanitization, and personal hygiene practices are followed. Because of the government threat of criminal sanction, Plaintiffs were forced not to host services on Easter Sunday, the most treasured day in Christianity.
10. Absent emergency relief from this Court, Plaintiffs, their pastors, and all congregants will suffer immediate and irreparable injury from the threat of criminal prosecution for the mere act of engaging in the free exercise of religion and going to church. Indeed, if Plaintiffs, their pastors, or their members do not subscribe to what Governor Pritzker has prescribed as orthodox in a worship service, they risk becoming criminals in the State. A temporary restraining should issue.
INTRODUCTION 11. Due to the unprecedented nature of the 2019 novel coronavirus disease (COVID-19) and the indisputable health tragedy the disease has wrought on our great Republic and those victims suffering under its yoke, there are those who may find it “tempting to hold that First Amendment rights should acquiesce to national security in this instance.” Tobey v. Jones, 706 F.3d 379, 393 (4th Cir. 2013). One could be forgiven for hastily reaching such a conclusion in such uncertain times, but “our Forefather Benjamin Franklin warned against such a temptation by opining that those who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” Id. 12. When the great American experiment was first implemented, our revered Founders took pains to note that the Constitution—and all of the rights it recognized and enshrined—was
5

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 6 of 46 PageID #:6
instituted “in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” U.S. Const. Pmbl. (emphasis added). To this very day, “we continue to strive toward ‘[that] more perfect union.’” Smith v. City of New Smyrna Beach, No. 6:110cv01110-Orl-37KRS, 2013 WL 5230659, *1 (M.D. Fla. Sept. 16, 2013). That work is not easy, and governments acting in good faith can and sometimes do miss the mark. This is such a case.
13. Recognizing that times of crisis would arise, that such times might lead governments to seek to repress precious freedoms, and that the Republic’s survival depended upon defeating such repressive instincts, the genius of our founding document is that it placed explicit protections into the text of the Bill of Rights. And, importantly, “[o]ur Bill of Rights placed our survival on firmer ground—that of freedom, not repression.” Konigsberg v. State Bar of California, 366 U.S. 36, 79 (1961) (Black, J., dissenting).
14. During times of national crisis, such as the current uncertainty arising from COVID-19, “the fog of public excitement obscures the ancient landmarks set up in our Bill of Rights.” American Communist Ass’n, C.I.O. v. Douds, 339 U.S. 382, 453 (1950) (Black, J., dissenting). But, where the fog of public excitement is at its apex, “the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly.” De Jonge v. Oregon, 299 U.S. 353, 365 (1937). Without doubt, “[t]herein lies the security of the Republic, the very foundation of constitutional government.” Id.
15. It is beyond cavil that our commitment to our founding principles is most tested and best calculated during times of crisis and uncertainty. Indeed, “[t]imes of crisis take the truest measure of our commitment to constitutional values. Constitutional values are only as strong as our willingness to reaffirm them when they seem most costly to bear.” Hartness v. Bush, 919
6

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 7 of 46 PageID #:7
F.2d 170, 181 (D.C. Cir. 1990) (Edwards, J., dissenting) (emphasis added). Our willingness to reaffirm our staunch commitment to our fundamental freedoms is imperative to the very survival of the American experiment. For, “[h]istory reveals that the initial steps in the erosion of individual rights are usually excused on the basis of an ‘emergency’ or threat to the public. But the ultimate strength of our constitutional guarantees lies in the unhesitating application in times of crisis and tranquility alike.” United States v. Bell, 464 F.2d 667, 676 (2d Cir. 1972) (Mansfield, J., concurring) (emphasis added).
16. Plaintiffs bring this case to restrain the troubling transgression of their fundamental and cherished liberties wrought by the imposition of Governor Pritzker’s orders surrounding COVID-19. Plaintiffs seek not to discredit or discard the government’s unquestionable interest in doing that task for which it was instituted—protecting the citizenry. But, as is often true in times of crisis, Plaintiffs respectfully submit that in an effort to uphold his sworn duties Governor Pritzker has stepped over a line the Constitution does not permit. Because of that, Plaintiffs bring this action to ensure that this Court safeguards the cherished liberties for which so many have fought and died. For, “[i]f the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be discarded.” Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J., dissenting) (emphasis added). Plaintiffs pray unto the Court that it not permit the cherished and fundamental liberties enshrined in the Constitution to be another tragic casualty of COVID-19.
17. Indeed, Plaintiffs and many of their members chose America as their homeland after fleeing communist oppression in Romania that, much like the COVID-19 Orders at issue here, targeted religious gatherings, houses of worship, and communal exercise of their religion and faith and imposed criminal sanctions for defiance of such prohibitions.
7

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 8 of 46 PageID #:8
18. Some of the pastors and members of Plaintiffs’ churches experienced such persecution personally, and had hoped to never experience it again in the great experiment of American freedom.
PARTIES 19. Plaintiff ELIM ROMANIAN PENTECOSTAL CHURCH is a not-for-profit corporation incorporated under the laws of the State of Illinois with its principal place of business at 4850 N. Bernard Street, Chicago, Illinois 60625. 20. Plaintiff LOGOS BAPTIST MINISTRIES is a not-for-profit corporation incorporated under the laws of the State of Illinois with its principal place of business at 7280 North Caldwell Avenue, Niles, Illinois 60714. 21. Defendant, JAY ROBERT PRITZKER, in his official capacity as Governor of the State of Illinois (“Governor Pritzker” or the “State”), is responsible for enacting and enforcing the COVID-19 Executive Orders and other Orders at issue in this litigation. Governor Pritzker is sued in his official capacity.
JURISDICTION AND VENUE 22. This action arises under the First and Fourteenth Amendments to the United States Constitution and is brought pursuant to 42 U.S.C. § 1983. This action also arises under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. This action also arises under Article I, Sections 3, 4, and 5 the Constitution of the State of Illinois, and the Illinois Religious Freedom Restoration Act. 23. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. 24. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
8

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 9 of 46 PageID #:9
25. This Court is authorized to grant declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02, implemented through Rule 57 of the Federal Rules of Civil Procedure, and is authorized to grant a temporary restraining order and injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure.
26. This Court is authorized to grant Plaintiffs’ prayer for relief regarding costs, including a reasonable attorney’s fee, pursuant to 42 U.S.C. § 1988.
GENERAL ALLEGATIONS A. GOVERNOR PRITZKER’S EXECUTIVE ORDERS AND RELATED
ORDERS FROM THE STATE OF ILLINOIS. 27. On March 9, 2020, in response to COVID-19, Governor Pritzker issued a Gubernatorial Disaster Proclamation, which declared a state of emergency in the State of Illinois. A true and correct copy of the March 9th Proclamation is attached hereto as EXHIBIT A and incorporated herein. 28. In the Emergency Proclamation, Governor Pritzker stated that COVID-19 represents a public health emergency and directed various government agencies to implement certain restrictions and orders to facilitate the State’s response. 29. On March 13, 2020, Governor Pritzker issued Executive Order 2020-04 stating that “all public and private gatherings in the State of Illinois of 1,000 or more people are cancelled.” A true and correct copy of Executive Order 2020-04 is attached hereto as EXHIBIT B and incorporated herein. 30. On March 16, 2020, Governor Pritzker issued Executive Order 2020-07, which bans “all public and private gatherings in the State of Illinois of 50 or more people.” A true and correct copy of Executive Order 2020-07 is attached hereto as EXHIBIT C and incorporated herein.
9

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 10 of 46 PageID #:10
31. Executive Order 2020-07 explicitly states that its prohibitions apply to “faith-based events” that “bring[] together 50 or more people in a single room or a single space at the same time.” But, the plain langue of the order excludes so-called “essential” services, such as grocery stores and gas stations.
32. Executive Order 2020-07 also directs various government agencies, including the Illinois State Police, to use all available resources “to enforce the provisions of this Executive Order.”
33. On March 20, 2020, Governor Pritzker issued Executive Order 2020-10, which purports to mandate all individuals in the State of Illinois to “stay at home or at their place of residence.” A true and correct copy of Executive Order 2020-10 is attached hereto as EXHIBIT D and incorporated herein. The stay-at-home mandate exempts “Essential Travel,” including for access to “Essential Activities” and “Essential Businesses and Operations.”
34. Executive Order 2020-10 states that “[a]ll public and private gatherings of any number of people . . . are prohibited” (emphasis added), and also (inconsistently) that “any gathering of more than ten people is prohibited,” unless otherwise permitted by the Executive Order. But, the order exempts from the gathering limitations “Essential Businesses and Operations,” comprising health, human services, governmental, and infrastructure operations, and 23 categories of exempted businesses including, inter alia, grocery stores, alcoholic beverage stores, hardware stores, cannabis stores, gas stations, law firms and professional businesses, labor unions, and hotels, and also including warehouse, supercenter, and ‘big box’ stores combining several categories.
35. The only limitation placed on so-called “Essential Businesses and Operations” is that they—“[t]o the greatest extent feasible” and “where possible”—comply with social distancing and hygiene recommendations.
10

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 11 of 46 PageID #:11
36. On April 1, 2020, Governor Pritzker issued Executive Order 2020-18, which continued the prohibitions of the previous executive orders through April 30, 2020. A true and correct copy of Executive Order 2020-18 is attached hereto as EXHIBIT E and incorporated herein.
37. On April 2, 2020, Governor Pritzker issued another Disaster Proclamation, extending his purported authority to issue emergency declarations in response to COVID-19. A true and correct copy of the April 2 Proclamation is attached hereto as EXHIBIT F and incorporated herein.
38. On April 30, 2020, Governor Pritzker issued another Disaster Proclamation, extending until May 30, 2020 the original disaster proclamation and purporting to extend his authority to continue issuing executive orders related to COVID-19. A true and correct copy of the April 30th Proclamation is attached hereto as EXHIBIT G and incorporated herein.
39. On April 30, 2020, Governor Pritzker also issued Executive Order 2020-32, which effectively replaced Executive Order 2020-10, and which continues to prohibit “[a]ll public and private gatherings of any number of people” and (still inconsistently) “any gathering of more than ten people.” A true and correct copy of Executive Order 2020-32 is attached hereto as EXHIBIT H and incorporated herein.
40. Executive Order 2020-32 also continues to require all individuals to stay in their homes and places of residence except “for Essential Activities, Essential Governmental Functions, or to operate Essential Businesses and Operations.”
41. For the first time, Executive Order 2020-32 adds to “Essential Activities” for which individuals may leave their homes or places of residence “engag[ing] 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.” The order also states that “[r]eligious organizations
11

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 12 of 46 PageID #:12
and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregants.”
42. So-called “Essential Businesses and Operations” are permitted to continue accommodate large numbers of people without the 10-person limit imposed on religious gatherings, subject only to—“to the greatest extent possible” and “where possible”—social distancing and other hygiene precautions and an occupancy limit of 50% of building capacity for retail stores.
43. Executive Order 2020-32 continues to recognize a list of 23 categories of exempted businesses as “Essential Businesses and Operations,” including, inter alia, grocery stores, alcoholic beverage stores, hardware stores, cannabis stores, gas stations, law firms and professional businesses, labor unions, and hotels, and also including warehouse, supercenter, and ‘big box’ stores combining several categories.
44. On April 30, 2020, Governor Pritzker also issued Executive Order 2020-33, continuing through May 29, 2020, inter alia, Executive Orders 2020-04 and 2020-07. A true and correct copy of Executive Order 2020-33 is attached hereto as EXHIBIT I and incorporated herein.
45. On May 5, 2020, Governor Pritzker released his “Restore Illinois” plan, which purports to set stages for the reopening of churches and religious gatherings in Illinois. A true and correct copy of Restore Illinois is attached hereto as EXHIBIT J and incorporated herein.
46. Restore Illinois states that Phases 1, 2, and 3 will continue to limit in-person gatherings to 10 or fewer people, with the Phase 3 limit “subject to change based on latest data & guidance.”
47. Restore Illinois does not contemplate permitting religious gatherings of more than 10 people until Phase 4, when “[g]atherings of 50 people or fewer are allowed with this limit
12

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 13 of 46 PageID #:13
subject to change based on latest data and guidance,” and if Governor Pritzker determines it is appropriate to permit such gatherings. Also, beginning Phase 4 this plan “can and will be updated” and is “subject to change” at any time and in the Governor’s discretion.
48. Restore Illinois does not contemplate permitting gatherings of more than 50 people until Phase 5, when “[l]arge gatherings of all sizes can resume,” but Phase 5 will not occur until “a vaccine is developed,” “a treatment option is readily available,” or “there are no new cases over a sustained period.”
49. Restore Illinois is merely “an initial framework” with all criteria subject to change, without commitments to timing, and contemplating backwards movement to prior phases as well as forward movement to new phases. To be sure, in his press conference on May 6, 2020, Governor Pritzker made it clear that in-person gathering limitations will apply to churches throughout the phased openings, and that it might take more than 12 to 18 months for churches to be permitted to have over 50 persons present, regardless of the sizes of facilities and whether social distancing may be effected. See Gov. Pritzker’s Coronavirus (COVID-19) Press Conference, Wednesday, May 6, 2020, State of Illinois Coronavirus (COVID-19) Response, available at https://coronavirus.illinois.gov/s/news-archive, and https://vimeo.com/415693668 (last visited May 7, 2020).
50. Plaintiffs hereinafter refers to Executive Order 2020-04, Executive Order 2020-07, Executive Order 2020-10, Executive Order 2020-18, Executive Order 2020-32, and Executive Order 2020-33, the relevant disaster Proclamations, and the Restore Illinois plan (EXHIBITS A– J) collectively as the “GATHERING ORDERS.”
13

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 14 of 46 PageID #:14

B. THE STATE’S ENFORCEMENT OF GOVERNOR PRITZKER GATHERING ORDERS.

51. On April 8, 2020, the Illinois State Police issued an enforcement guidance

document (the “ISP Enforcement Guidance”) indicating that it will enforce Governor Pritzker’s

GATHERING ORDERS against churches and individuals found in violation of them. A true and

correct copy of the ISP Enforcement Guidance is attached hereto as EXHIBIT K and incorporated

herein.

52. The ISP Enforcement Guidance states that the State Police are “free to use their

training to disperse the crowd” found in violation of Governor Pritzker’s GATHERING ORDERS.

53. The ISP Enforcement Guidance further states that the State Police can fill out

“[s]top cards and field reports” concerning those found in violation of the GATHERING

ORDERS, and that non-compliance with the GATHERING ORDERS may result in misdemeanor

citations being issued for the offenses of Reckless Conduct and Disorderly Conduct under the

Illinois code.

54. Through its ISP Enforcement Guidance, the Illinois State Police has unquestionably

demonstrated that it intends to enforce the GATHERING ORDERS, including against Plaintiffs

and their religious services.

C. PLAINTIFFS’ CHURCHES SERVICES CAN AND WILL COMPLY WITH

SOCIAL

DISTANCING

AND

PERSONAL

HYGIENE

RECOMMENDATIONS.

55. On Saturday May 2, 2020, Plaintiffs joined in a letter sent to Governor Pritzker

informing him that they are willing to voluntarily comply with social distancing and personal

hygiene practices for their in-person worship services. A true and correct copy of that letter is

attached hereto as EXHIBIT L and incorporated herein.

14

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 15 of 46 PageID #:15
56. In their letter, Plaintiffs stated that they would incorporate all of the following into each of their in-person worship services: (1) reduced seating for in-person worship services; (2) churches with moveable chairs will remove some of the chairs to maintain proper social distancing; (3) marking chairs or pews for use or non-use, and/or ushers’ seating people with social distancing guidelines (allowing family units to be seated together); (4) prior to and following any in-person service, facilities will be sanitized; (5) attendees will be advised that, if they choose, they may wear masks and/or gloves; (6) attendees will be advised not to engage in hand shaking or other physical contact; (7) hand sanitizer will be available for use throughout the facility, and each person may be given a squirt of sanitizer or a sanitizer wipe upon entering; (8) selected points of entry and exit separated from each other establishing a one-way traffic pattern; (9) doors propped open or held open by ushers to prevent the need for congregants to touch doors while entering and exiting the church or sanctuary; and (10) asking anyone with any symptoms of COVID-19, anyone who works in healthcare facilities that treat COVID-19 patients, and those that are elderly and/or with auto-immune issues to forego our in-person gatherings for a time.
57. Plaintiff Elim Romanian Pentecostal Church has a campus of approximately 40,000 square feet, with 750 seats in its main auditorium and an additional 550 seats in overflow rooms (1,300 total seats).
58. Plaintiff Logos Baptist Ministries has a campus of approximately 36,000 square feet, with 425 seats in its main auditorium and 100 seats available in an overflow room (525 total seats.
59. Plaintiffs’ churches, and many others like them, could each easily accommodate many more than 10 persons in a worship service while still observing all social distancing and safety precautions imposed by Governor Pritzker’s GATHERING ORDERS (i.e., “to the greatest extent feasible” or “when possible” for exempted businesses), and Plaintiffs can and would
15

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 16 of 46 PageID #:16
practice the stringent social distancing and personal hygiene protocols outlined in their May 2, 2020 letter to Governor Pritzker.
D. LESS RESTRICTIVE ALTERNATIVES ARE AVAILABLE TO GOVERNOR PRITZKER.
60. Despite Governor Pritzker’s insistence that in-person religious gatherings of more than 10 people cannot continue because they would spread COVID-19, the State has failed to consider other, substantially less restrictive alternatives to an absolute prohibition on such “religious” gatherings.
61. Like the State of Illinois, the State of Florida has issued stay-at-home executive orders and required the closure of all so-called “non-essential” businesses without unnecessarily discriminating against religious gatherings. On April 1, 2020, Florida Governor Ron DeSantis issued Executive Order 20-91, which included “religious services conducted in churches, synagogues, and houses of worship” as essential activities permitted to continue subject to social distancing and personal hygiene guidelines. A true and correct copy of Florida Executive Order 20-91 is attached hereto as EXHIBIT M and incorporated herein.
62. The State of Indiana has likewise issued stay-at-home executive orders and required the closure of all so-called “non-essential” businesses without unnecessarily discriminating against religious gatherings. Governor Eric. J. Holcomb’s Executive Order 20-08 declared that “[r]eligious facilities, entities and groups, and religious gatherings” are essential and may continue to operate provided they follow appropriate social distancing and personal hygiene practices. A true and correct copy of Indiana’s Executive Order 20-08 is attached hereto as EXHIBIT N and incorporated herein.
63. The State of Arizona, in Executive Order 2020-18, classified “[e]ngaging in constitutionally protected activities such as speech and religion” as essential activities, subject to
16

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 17 of 46 PageID #:17
a flexible requirement that such engagement be “conducted in a manner that provides appropriate physical distancing to the extent feasible.” The Arizona Attorney General, in Opinion I20-008, interpreted such essential activities clearly to include assembling for religious worship. True and correct copies of Arizona Executive Order 2020-18 and Arizona Attorney General Opinion I20-008 are attached hereto as EXHIBIT O and EXHIBIT P, respectively, and incorporated herein.
64. The State of Alabama, in its final Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19, issued April 3, 2020, exempts individuals attending religious worship services in person subject to certain requirements and permits “drive-in” worship services without limitation. A true and correct copy of the Alabama Order is attached hereto as EXHIBIT Q and incorporated herein.
65. The State of Arkansas has likewise exempted “places of worship” from its Executive Order 20-13 imposing restrictions to prevent the spread of COVID-19, provided that they engage in adequate social distancing and personal hygiene practices. A true and correct copy of the Arkansas Executive Order is attached hereto as EXHIBIT R and incorporated herein.
66. The State of Connecticut has similarly shown that other, less restrictive alternatives are available. In Executive Order No. 7N, Governor Ned Lamont permitted religious services to continue to meet, but limited their in-person gatherings to 50 people, as opposed to the six-person limit applicable to other gatherings. A true and correct copy of the Connecticut Executive Order No. 7N is attached hereto as EXHIBIT S and incorporated herein.
67. The State of Texas has likewise issued certain COVID-19 orders, but has provided explicit protections to religious gatherings and issued directives outlining the protection for religious freedom, even in these times of uncertainty. A true and correct copy of the Texas Guidance for Houses of Worship is attached hereto as EXHIBIT T and incorporated herein. In
17

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 18 of 46 PageID #:18
that Guidance, Texas notes that religious assemblies and houses of worship are “essential services” and that in-person gatherings are permissible if social distancing and personal hygiene practices are followed.
68. The State of Ohio has likewise issued certain COVID-19 orders, including the Ohio Department of Health’s Stay Safe Ohio Order. A true and correct copy of the Ohio order is attached hereto as EXHIBIT U and incorporated herein. Ohio’s order likewise states that the stay at home mandate “does not apply to religious facilities, entities and groups and religious gatherings.”
69. Numerous other states have similarly permitted religious gatherings to be treated equally with non-religious gatherings.
70. As these other states have demonstrated, Governor Pritzker can continue to pursue the State’s objective of preventing the spread of COVID-19 without unnecessarily treating religious gatherings in a discriminatory manner, and the State has numerous other, less restrictive alternatives available to it to do so.
71. Governor Pritzker has neither tried without success nor considered and ruled out for good reason these less restrictive alternatives.
72. Governor Pritzker has constitutionally permissible alternatives available, but has failed to attempt to achieve the State’s purported goals without unnecessarily interfering with constitutionally protected activities.
E. IRREPARABLE INJURY TO PLAINTIFFS FROM GOVERNOR PRITZKER’S GATHERING ORDERS.
73. Despite being capable of following all social distancing and personal hygiene protocols recommended by the CDC and specified in the GATHERING ORDERS, Plaintiffs have been explicitly targeted, singled out, and punished for participating in an in-person religious gathering when exempted commercial and non-religious entities may accommodate gatherings,
18

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 19 of 46 PageID #:19
crowds, and masses of people without numeric limitation, and without targeting or punishment by the government.
74. As a result of Governor Pritzker’s GATHERING ORDERS, Plaintiffs have suffered and are suffering irreparable injury by having their pastors, members, and all attendees of future services threatened with criminal sanction.
75. As a result of Governor Pritzker’s GATHERING ORDERS, Plaintiffs have suffered and are suffering irreparable injury by being prohibited from engaging in their constitutionally and statutorily protected rights of free exercise, assembly, and speech.
76. As a result of Governor Pritzker’s GATHERING ORDERS, Plaintiffs have suffered and are suffering irreparable injury by the infringement of their constitutionally protected rights to be free from government hostility toward religion.
77. As a result of the Governor Pritzker’s GATHERING ORDERS and the explicit threats from the Illinois State Police, Plaintiffs have suffered and are suffering irreparable injury by the continuing threat of criminal sanctions on Plaintiffs’ pastors and congregants for merely exercising their constitutionally protected freedoms.
78. Due to the explicit threats of Governor Pritzker’s GATHERING ORDERS and the announcements by the Illinois State Police, Plaintiffs have been forced to self-censor, cease their religious worship services, and violate their sincerely held religious beliefs.
G. PLAINTIFFS’ ATTEMPTS TO SECURE RELIEF WITHOUT JUDICIAL INTERVENTION WERE IGNORED AND FURTHER ATTEMPTS TO NOTIFY THE STATE ARE FUTILE AND IMPRACTICAL BEFORE THIS SUNDAY.
79. In addition to the May 2, 2020 letter to Governor Pritzker joined by Plaintiffs (EXHIBIT L), on May 7, 2020, prior to the commencement of the instant action, Plaintiffs’ counsel sent by email and facsimile a demand letter to Governor Pritzker (via Lieutenant Governor Juliana
19

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 20 of 46 PageID #:20
Stratton), with copies to the Governor’s General Counsel and the Illinois Attorney General, in which Plaintiffs’ counsel demanded, by 3:00 P.M. on May 7, written confirmation that the State has withdrawn the ban on religious gatherings embodied in the GATHERING ORDERS, will allow individuals to attend church services at Plaintiffs’ churches in an equal manner with other essential and non-essential business permitted to continue provided certain social distancing and personal hygiene practices are followed, and will cease enforcement of any church gathering ban against members and/or attendees of Plaintiffs’ church services. A true and correct copy of the demand letter is attached hereto as EXHIBIT V. No written response from Governor Pritzker’s office was received by the requested deadline, or at any time prior to the filing of this Verified Complaint.
80. The failure of Governor Pritzker or his officials to confirm withdrawal or cessation of enforcement of the discriminatory prohibitions on religious services in the GATHERING ORDERS and applied to Plaintiffs shows that Plaintiffs’ irreparable injury to their constitutionally protected freedoms is ongoing.
81. The failure of Governor Pritzker or his officials to respond to Plaintiffs’ communication also shows that notice and an opportunity to respond to this lawsuit cannot be effectuated, and would be futile, prior to this Sunday’s worship activities at Plaintiffs’ respective churches, when Governor Pritzker or other State officials will again interfere with the constitutional liberties of Plaintiffs and their congregants absent a temporary restraining order from this Court.
20

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 21 of 46 PageID #:21
CONSTITUTIONAL CLAIMS COUNT I—THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS TO FREE EXERCISE OF RELIGION
UNDER THE FIRST AMENDMENT 82. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–81 above. 83. The Free Exercise Clause of the First Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, prohibits the State from abridging Plaintiffs’ rights to free exercise of religion. 84. Plaintiffs have sincerely held religious beliefs that Scripture is the infallible, inerrant word of the Lord Jesus Christ, and that they are to follow its teachings. 85. Plaintiffs have sincerely held religious beliefs, rooted in Scripture’s commands (e.g., Hebrews 10:25), that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis. Indeed, the entire purpose of the Church (in Greek “ekklesia,” meaning “assembly”) is to assemble together Christians to worship Almighty God. 86. The GATHERING ORDERS, on their face and as applied, target Plaintiffs’ sincerely held religious beliefs by prohibiting religious gatherings. 87. The GATHERING ORDERS, on their face and as applied, impermissibly burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs in the commands of Scripture and the State’s imposed value system.
21

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 22 of 46 PageID #:22
88. The GATHERING ORDERS, on their face and as applied, place Plaintiffs in an irresolvable conflict between compliance with the GATHERING ORDERS and their sincerely held religious beliefs.
89. The GATHERING ORDERS, on their face and as applied, put substantial pressure on Plaintiffs to violate their sincerely held religious beliefs by ignoring the fundamental teachings and tenets of Scripture concerning the assembling of Believers.
90. The GATHERING ORDERS, on their face and as applied, are neither neutral nor generally applicable, but rather specifically and discriminatorily target the religious beliefs, speech, assembly, and viewpoint of Plaintiffs.
91. The GATHERING ORDERS, on their face and as applied, constitute a substantial burden on Plaintiffs’ sincerely held religious beliefs.
92. The State lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of different standards for churches and religious gatherings than those applicable to exempted businesses or non-religious entities.
93. Even if the GATHERING ORDERS’ restriction on religious gatherings were supported by a compelling interest, which it is not, they are not the least restrictive means to accomplish the government’s purported interest.
94. The GATHERING ORDERS, on their face and as applied, fail to accommodate Plaintiffs’ sincerely held religious beliefs.
95. The GATHERING ORDERS, on their face and as applied, specifically target Plaintiffs’ sincerely held religious beliefs and set up a system of individualized exemptions that permits certain other similarly situated businesses or non-religious entities to continue operations under certain guidelines while prohibiting religious gatherings, such as Plaintiffs’ church and worship services, from operating with similar guidelines.
22

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 23 of 46 PageID #:23
96. The GATHERING ORDERS, on their face and as applied, constitute an express and overt religious gerrymander.
97. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
98. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for relief against the State as hereinafter set forth in their prayer for relief.
COUNT II—THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS TO PEACEABLE ASSEMBLY
UNDER THE FIRST AMENDMENT 99. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–81 above. 100. The First Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, prohibits the State from abridging the right of the people peaceably to assemble. 101. The GATHERING ORDERS, on their face and as applied, are an unconstitutional prior restraint on Plaintiffs’ right to assemble. 102. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of viewpoint. 103. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of content.
23

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 24 of 46 PageID #:24
104. The State lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of differential standards for churches and religious gatherings than those applicable to exempted businesses or non-religious entities.
105. The GATHERING ORDERS, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served by the orders.
106. The GATHERING ORDERS, on their face and as applied, are not narrowly tailored to serve the government’s purported interest.
107. The GATHERING ORDERS, on their face and as applied, do not leave open ample alternative channels of communication for Plaintiffs.
108. The GATHERING ORDERS, on their face and as applied, are irrational and unreasonable and impose unjustifiable and unreasonable restrictions on Plaintiffs’ constitutionally protected right to assemble.
109. The GATHERING ORDERS, on their face and as applied, impermissibly vest unbridled discretion in the hands of government officials, including Governor Pritzker and his designees, to apply or not apply the GATHERING ORDERS in a manner to restrict free assembly.
110. The GATHERING ORDERS, on their face and as applied, are underinclusive by limiting their gathering prohibitions to only certain businesses or organizations deemed “nonessential.”
111. The GATHERING ORDERS, on their face and as applied, are unconstitutionally vague and overbroad as they chill and abridge the free assembly rights of Plaintiffs.
112. On their face and as applied, the GATHERING ORDERS’ violation of Plaintiffs’ right to free assembly have caused, are causing, and will continue to cause Plaintiffs to suffer immediate and irreparable injury and undue and actual hardship.
24

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 25 of 46 PageID #:25
113. Plaintiffs have no other adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the State as hereinafter set forth in their prayer for relief.
COUNT III - THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS TO FREEDOM OF SPEECH
UNDER THE FIRST AMENDMENT 114. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–81 above. 115. The Free Speech Clause of the First Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, prohibits the State from abridging Plaintiffs’ freedom of speech. 116. The GATHERING ORDERS, on their face and as applied, are an unconstitutional prior restraint on Plaintiffs’ speech. 117. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of viewpoint. 118. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of content. 119. The State lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of different standards for churches and religious gatherings than those applicable to exempted businesses and non-religious entities. 120. The GATHERING ORDERS, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served by the orders.
25

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 26 of 46 PageID #:26
121. The GATHERING ORDERS, on their face and as applied, are not narrowly tailored to serve the government’s purported interest.
122. The GATHERING ORDERS, on their face and as applied, do not leave open ample alternative channels of communication for Plaintiffs.
123. The GATHERING ORDERS, on their face and as applied, are irrational and unreasonable and impose unjustifiable and unreasonable restrictions on Plaintiffs’ constitutionally protected speech.
124. The GATHERING ORDERS, on their face and as applied, impermissibly vest unbridled discretion in the hands of government officials, including Governor Pritzker and his designees, to apply or not apply the GATHERING ORDERS in a manner to restrict free speech.
125. The GATHERING ORDERS, on their face and as applied, are underinclusive by limiting their prohibitions to only certain entities, organizations, or businesses deemed “nonessential.”
126. The GATHERING ORDERS, on their face and as applied, are unconstitutionally overbroad as they chill and abridge the free speech rights of Plaintiffs.
127. On their face and as applied, the GATHERING ORDERS’ violation of Plaintiffs’ rights to free speech have caused, are causing, and will continue to cause Plaintiffs to suffer immediate and irreparable injury and undue and actual hardship.
128. Plaintiffs have no other adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the State as hereinafter set forth in their prayer for relief.
26

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 27 of 46 PageID #:27
COUNT IV—THE GATHERING ORDERS VIOLATE THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT 129. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–81 above. 130. The Establishment Clause of the First Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, prohibits the government from establishing a religion. 131. The Establishment Clause also prohibits excessive government entanglement with religion. 132. The Establishment Clause also prohibits the government from showing hostility towards religion and prohibits showing favoritism towards one religious sect over another or between non-religion and religion. 133. The government mandated prohibition on “faith-based” or “religious” gatherings in the GATHERING ORDERS violates the Establishment Clause because the State of Illinois thereby dictates the manner in which Christians and churches must worship or worship online. 134. The Establishment Clause does not permit the State of Illinois to dictate under penalty of criminal sanctions the manner, style, form, practices, or sacraments of religious worship and thereby impose its own version of religious worship on every church and citizen of the State. 135. In fact, as the Supreme Court has unequivocally stated, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added).
27

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 28 of 46 PageID #:28
136. The State, through Governor Pritzker’s GATHERING ORDERS, is purporting to prescribe what shall be orthodox in matters of religious worship, and is thus running roughshod over the Establishment Clause.
137. The GATHERING ORDERS, on their face and as applied, permit the State to display impermissible hostility towards religious gatherings.
138. The GATHERING ORDERS, on their face and as applied, impermissibly show favoritism towards certain non-religious gatherings over religious gatherings.
139. The GATHERING ORDERS, on their face and as applied, violate the Establishment Clause because they excessively entangle the government with religion.
140. The GATHERING ORDERS, on their face and as applied, purport to inform religious adherents and believers how they may choose to worship, assemble together, or engage in their religious freedoms.
141. The GATHERING ORDERS, on their face and as applied, purport to establish an acceptable method of religious practice and worship, place a numerical limitation on the scope of how such religious practice and worship may occur, and provide a government imprimatur for only certain forms of “permissible” worship.
142. The GATHERING ORDERS, on their face and as applied, demonstrate overt hostility to religious practice and worship that does not conform to government sanctioned religious exercises.
143. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
144. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished constitutional liberties.
28

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 29 of 46 PageID #:29
WHEREFORE, Plaintiffs respectfully pray for the relief against the State as hereinafter set forth in their prayer for relief.
COUNT V—THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS TO EQUAL PROTECTION
UNDER THE FOURTEENTH AMENDMENT 145. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–81 above. 146. The Fourteenth Amendment to the United States Constitution guarantees Plaintiffs the right to equal protection under the law. 147. The GATHERING ORDERS, on their face and as applied, are an unconstitutional abridgement of Plaintiffs’ right to equal protection under the law, are not neutral, and specifically target Plaintiffs’ and other religious gatherings for unequal treatment. 148. The GATHERING ORDERS, on their face and as applied, are an unconstitutional abridgment of Plaintiffs’ right to equal protection because they permit the State to treat Plaintiffs differently from other similarly situated businesses and non-religious entities on the basis of the content and viewpoint of Plaintiffs’ gatherings. 149. The GATHERING ORDERS create a system of exempt categories that permit essential businesses and gatherings to continue to operate with restriction or threat of sanction, and impose disparate treatment to those categories of businesses and gatherings called “non-essential.” 150. The GATHERING ORDERS system of categories represents disparate treatment based upon classification in violation equal protection. 151. The GATHERING ORDERS, on their face and as applied, impermissibly discriminate between certain non-religious gatherings and religious gatherings.
29

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 30 of 46 PageID #:30
152. The State lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of different standards for churches and religious gatherings than those applicable to exempted businesses or non-religious entities.
153. The GATHERING ORDERS, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served.
154. The GATHERING ORDERS, on their face and as applied, do not have a rational basis.
155. The GATHERING ORDERS, on their face and as applied, are irrational and unjustifiable and impose irrational and unjustifiable restrictions on Plaintiffs’ religious gatherings.
156. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
157. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for relief against the State as hereinafter set forth in their prayer for relief.
COUNT VI—THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS TO A REPUBLICAN FORM OF GOVERNMENT
UNDER THE GUARANTEE CLAUSE OF ARTICLE IV, § 4 OF THE UNITED STATES CONSTITUTION
158. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–81 above.
159. Article IV, § 4 of the United States Constitution requires the United States to guarantee to every citizen in the nation a republican form of government.
30

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 31 of 46 PageID #:31
160. The Guarantee Clause’s distinguishing feature is that the republican form of government it guarantees is the right of the people to choose their own governmental administration and pass their own laws.
161. As interpreted by the federal judiciary and prominent scholars, the Guarantee Clause mandates that the federal government guarantee a form of government for all citizens in which supreme power resides in a body of citizens entitled to vote and exercised by elected officers responsible to such citizens.
162. The GATHERING ORDERS’ express, unilateral, and unequivocal exercises of purported executive authority over the constitutional rights of Plaintiffs deprive Plaintiffs of the right to select their own government administration, pass their own laws, and maintain a government administration directly responsible to the people, including by laws that are enacted by the legislature in constitutional recognition of the separation of powers.
163. The impermissible exercise of exclusive and unaccountable executive authority violates the Guarantee Clause of the United States Constitution.
164. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
165. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the State as hereinafter set forth in their prayer for relief.
31

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 32 of 46 PageID #:32
COUNT VII—THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS TO FREE EXERCISE OF RELIGION UNDER ARTICLE I, SECTION 3 OF THE CONSTITUTION OF ILLINOIS 166. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–81 above. 167. Article I, § 3 of the Constitution of Illinois states: “The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed, and no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions.” 168. Plaintiffs have sincerely held religious beliefs that Scripture is the infallible, inerrant word of the Lord Jesus Christ, and that they are to follow its teachings. 169. Plaintiffs have sincerely held religious beliefs, rooted in Scripture’s commands (e.g., Hebrews 10:25), that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis. Indeed, the entire purpose of the Church (in Greek “ekklesia,” meaning “assembly”) is to assemble together Christians to worship Almighty God. 170. The GATHERING ORDERS, on their face and as applied, target Plaintiffs’ sincerely held religious beliefs by prohibiting religious gatherings. 171. The GATHERING ORDERS, on their face and as applied, impermissibly burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs in the commands of Scripture and the State’s imposed value system.
32

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 33 of 46 PageID #:33
172. The GATHERING ORDERS, on their face and as applied, place Plaintiffs in an irresolvable conflict between compliance with the GATHERING ORDERS and their sincerely held religious beliefs.
173. The GATHERING ORDERS, on their face and as applied, put substantial pressure on Plaintiffs to violate their sincerely held religious beliefs by ignoring the fundamental teachings and tenets of Scripture concerning the assembling of Believers.
174. The GATHERING ORDERS, on their face and as applied, are neither neutral nor generally applicable, but rather specifically and discriminatorily target the religious beliefs, speech, assembly, and viewpoint of Plaintiffs.
175. The GATHERING ORDERS, on their face and as applied, constitute a substantial burden on Plaintiffs’ sincerely held religious beliefs.
176. The State lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of different standards for churches and religious gatherings than those applicable to exempted businesses or non-religious entities.
177. Even if the GATHERING ORDERS’ restriction on religious gatherings were supported by a compelling interest, which it is not, they are not the least restrictive means to accomplish the government’s purported interest.
178. The GATHERING ORDERS, on their face and as applied, fail to accommodate Plaintiffs’ sincerely held religious beliefs.
179. The GATHERING ORDERS, on their face and as applied, specifically target Plaintiffs’ sincerely held religious beliefs and set up a system of individualized exemptions that permits certain other similarly situated businesses or non-religious entities to continue operations under certain guidelines while prohibiting religious gatherings, such as Plaintiffs’ church and religious gatherings, from operating with similar guidelines.
33

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 34 of 46 PageID #:34
180. The GATHERING ORDERS, on their face and as applied, constitute an express and overt religious gerrymander.
181. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
182. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for relief against the State as hereinafter set forth in their prayer for relief.
COUNT VIII—THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS TO FREEDOM OF SPEECH AND ASSEMBLY UNDER ARTICLE I, SECTIONS 4–5 OF THE CONSTITUTION OF ILLINOIS 183. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–81 above. 184. Article I, Section 4 of the Constitution of Illinois states that “[a]ll persons may speak, write and publish freely.” 185. Article I, Section 5 states that “[t]he people have the right to assemble in a peaceable manner.” 186. The GATHERING ORDERS, on their face and as applied, are an unconstitutional prior restraint on Plaintiffs’ speech and assembly. 187. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of viewpoint. 188. The GATHERING ORDERS, on their face and as applied, unconstitutionally discriminate on the basis of content.
34

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 35 of 46 PageID #:35
189. The State lacks a compelling, legitimate, or rational interest in the GATHERING ORDERS’ application of different standards for churches and religious gatherings than those applicable to exempted businesses and non-religious entities.
190. The GATHERING ORDERS, on their face and as applied, are not the least restrictive means to accomplish any permissible government purpose sought to be served by the orders.
191. The GATHERING ORDERS, on their face and as applied, are not narrowly tailored to serve the government’s purported interest.
192. The GATHERING ORDERS, on their face and as applied, do not leave open ample alternative channels of communication for Plaintiffs.
193. The GATHERING ORDERS, on their face and as applied, are irrational and unreasonable and impose unjustifiable and unreasonable restrictions on Plaintiffs’ constitutionally protected speech and right to assemble.
194. The GATHERING ORDERS, on their face and as applied, impermissibly vest unbridled discretion in the hands of government officials, including Governor Pritzker and his designees, to apply or not apply the GATHERING ORDERS in a manner to restrict free speech and assembly.
195. The GATHERING ORDERS, on their face and as applied, are underinclusive by limiting their prohibitions to only certain entities, organizations, or businesses deemed “nonessential.”
196. The GATHERING ORDERS, on their face and as applied, are unconstitutionally overbroad as they chill and abridge the free speech and assembly rights of Plaintiffs.
35

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 36 of 46 PageID #:36
197. On their face and as applied, the GATHERING ORDERS’ violation of Plaintiffs’ rights to free speech and assembly have caused, are causing, and will continue to cause Plaintiffs to suffer immediate and irreparable injury and undue and actual hardship.
198. Plaintiffs have no other adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for the relief against the State as hereinafter set forth in their prayer for relief.
STATUTORY CLAIMS COUNT IX—THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS UNDER
THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT 199. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–81 above. 200. The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc– 2000cc-5 (“RLUIPA”), states that “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.” 42 U.S.C. § 2000cc(a)(1). If the government does impose such a restriction, it must then demonstrate that such a burden on the religious assembly is supported by a compelling interest and is the least restrictive means to further that alleged interest. 201. RLUIPA further mandates that no government “impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). 202. RLUIPA further states that “[n]o government shall impose or implement a land use regulation that (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably
36

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 37 of 46 PageID #:37
limits religious assemblies, institutions, or structures within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3).
203. Plaintiffs have sincerely held religious beliefs that Scripture is the infallible, inerrant word of the Lord Jesus Christ, and that Plaintiffs are to follow its teachings.
204. Plaintiffs have sincerely held religious beliefs, rooted in Scripture’s commands (e.g., Hebrews 10:25), that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis. Indeed, the entire purpose of the Church (in Greek “ekklesia,” meaning “assembly”) is to assemble together Christians to worship Almighty God.
205. The GATHERING ORDERS, on their face and as applied, target Plaintiffs’ sincerely held religious beliefs by prohibiting religious gatherings.
206. The GATHERING ORDERS, on their face and as applied, impermissibly and substantially burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs in the commands of Scripture and the State’s imposed value system.
207. The GATHERING ORDERS, on their face and as applied, constitute a substantial burden on Plaintiffs’ sincerely held religious beliefs.
208. The State lacks a compelling interest in the GATHERING ORDERS’ application of different standards for churches and religious gatherings than those applicable to exempted businesses and non-religious entities.
209. Even if the GATHERING ORDERS’ restrictions on religious gatherings was supported by a compelling interest, which it is not, they are not the least restrictive means to accomplish the government’s purported interest.
37

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 38 of 46 PageID #:38
210. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
211. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
WHEREFORE, Plaintiffs respectfully pray for relief against the State as hereinafter set forth in their prayer for relief.
COUNT X – THE GATHERING ORDERS VIOLATE PLAINTIFFS’ RIGHTS UNDER THE ILLINOIS RELIGIOUS FREEDOM RESTORATION ACT
212. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1–81 above.
213. Illinois’s Religious Freedom Restoration Act prohibits the government from substantially burdening Plaintiffs’ free exercise of religion. 775 I.L.C.S. §35/15. If the government does burden a person’s sincerely held religious beliefs, it must demonstrated that it is in furtherance of a compelling government interest and is the least restrictive means of achieving that interest.
214. Plaintiffs have sincerely held religious beliefs that Scripture is the infallible, inerrant word of the Lord Jesus Christ, and that they are to follow its teachings.
215. Plaintiffs have sincerely held religious beliefs, rooted in Scripture’s commands (e.g., Hebrews 10:25), that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis. Indeed, the entire purpose of the Church (in Greek “ekklesia,” meaning “assembly”) is to assemble together Christians to worship Almighty God.
216. The GATHERING ORDERS, on their face and as applied, target Plaintiffs’ sincerely held religious beliefs by prohibiting faith-based gatherings.
38

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 39 of 46 PageID #:39
217. The GATHERING ORDERS, on their face and as applied, impermissibly and substantially burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs in the commands of Scripture and Defendant’s imposed value system.
218. The GATHERING ORDERS, on their face and as applied, constitute a substantial burden on Plaintiffs’ sincerely held religious beliefs.
219. Defendant lacks a compelling interest in the GATHERING ORDERS’ application of differential standards for churches and faith-based gatherings than those applicable to other socalled “non-life-sustaining” businesses or services.
220. Even if the GATHERING ORDERS’s restriction on faith-based gatherings was supported by a compelling interest, which it is not, they are not the least restrictive means to accomplish the government’s purported interest.
221. The State has not and cannot demonstrate a compelling government interest in treating Plaintiffs’ faith-based or religious gatherings differently that other non-religious gatherings of so-called “non-life-sustaining” businesses or services.
222. The State has not and cannot demonstrate that it has deployed the least restrictive means to further its purported compelling interest.
223. The GATHERING ORDERS, on their face and as applied, have caused, are causing, and will continue to cause Plaintiffs immediate and irreparable harm, and actual and undue hardship.
224. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their most cherished liberties.
39

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 40 of 46 PageID #:40
WHEREFORE, Plaintiffs respectfully pray for the relief against Defendant as hereinafter set forth in their prayer for relief
PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays for relief as follows: A. That the Court issue a Temporary Restraining Order restraining and enjoining Governor Pritzker, all State officers, agents, employees, and attorneys, and all other persons in active concert or participation with them, from enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with the GATHERING ORDERS or any other order to the extent any such order prohibits religious worship services or in-person church services at Plaintiffs’ churches, if Plaintiffs meet the social distancing, enhanced sanitization, and personal hygiene guidelines pursuant to which the State allows so-called “essential” commercial and nonreligious entities (e.g., beer, wine, and liquor stores, warehouse clubs, ‘big box,” ‘supercenter’ stores, and marijuana dispensaries) to accommodate gatherings of persons without numerical limit. To be clear, Plaintiffs merely seeks a TRO preventing Plaintiffs, their pastors, and their congregants from being subject to criminal sanctions for hosting in-person worship services on Sunday during which Plaintiffs will implement social distancing and hygiene protections on an equal basis with other non-religious gatherings. In making such a request, Plaintiffs merely seek to be treated equally with other businesses, and seek only to be permitted to meet in person so long as they abide by social distancing, enhanced sanitizing, and personal hygiene recommendations that other businesses are allowed to follow and remain open. B. That the Court issue a Preliminary Injunction pending trial, and a Permanent Injunction upon judgment, restraining and enjoining Governor Pritzker, all State officers, agents, employees, and attorneys, and all other persons in active concert or participation with them, from enforcing the GATHERING ORDERS so that:
40

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 41 of 46 PageID #:41
i. The State will not apply the GATHERING ORDERS in any manner as to infringe Plaintiffs’ constitutional and statutory rights by discriminating against their right to assembly, speech, free exercise of religion, equal protection, and all other constitutional and statutory rights outlined herein;
ii. The State will apply the GATHERING ORDERS in a manner that treats Plaintiffs’ religious gatherings on equal terms as gatherings for or in socalled “essential” businesses and non-religious entities;
iii. The State will permit religious gatherings so long as they comply with the same social distancing and personal hygiene recommendations pursuant to which the State allows so-called “essential” commercial and non-religious entities (e.g., beer, wine, and liquor stores, cannabis stores, warehouse clubs, and supercenters) to accommodate gatherings of persons without numerical limit under the GATHERING ORDERS;
iv. The State will permit Plaintiffs the opportunity to comport their behavior to any further limitations or restrictions that the State may impose in any future modification, revision, or amendment of the GATHERING ORDERS or similar legal directive; and
v. The State will not bring any enforcement, criminal, or other public health actions against Plaintiffs as threatened in Governor Pritzker’s public statements.
C. That the Court render a Declaratory Judgment declaring that the GATHERING ORDERS both on their face and as applied by the State are unconstitutional under the United States Constitution and Constitution of Illinois, and further declaring that:
41

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 42 of 46 PageID #:42
i. The State has violated Plaintiffs’ rights to freedom of assembly by impermissibly prohibiting religious gatherings;
ii. The State has violated Plaintiffs’ rights to freedom of speech by impermissibly prohibiting religious gatherings;
iii. The State has violated Plaintiffs’ rights to free exercise of religion by impermissibly prohibiting religious gatherings, substantially burdening their sincerely held religious beliefs, applying criteria that are neither neutral nor generally applicable to religious and non-religious gatherings, by establishing a religious gerrymander against religious gatherings, and by establishing a system of individualized exemptions that exclude similarly situated non-religious gatherings from the prohibitions applicable to Plaintiffs’ religious gatherings;
iv. The State has violated Plaintiffs’ rights to equal protection of the laws by impermissibly prohibiting religious gatherings, and by applying criteria that treats religious gatherings in a discriminatory and dissimilar manner as that applied to various non-religious gatherings;
v. The State has violated the Establishment Clause by impermissibly demonstrating hostility towards religious gatherings and by impermissibly showing favoritism to certain non-religious gatherings;
vi. The State has violated the Guarantee Clause by impermissibly exercising executive authority in an unconstitutional manner;
vii. The State has violated the Religious Land Use and Institutionalized Persons Act by substantially and impermissibly burdening Plaintiffs’ sincerely held religious beliefs and treating unequally as compared to other non-religious
42

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 43 of 46 PageID #:43
assemblies or institutions, by imposing draconian prohibitions on Plaintiffs’ sincerely held religious beliefs without a compelling government interest, and without deploying the least restrictive means to achieve any permissible government interest; and viii. The State has violated the Illinois Religious Freedom Restoration Act by substantially and impermissibly burdening Plaintiffs’ sincerely held religious beliefs and treating unequally as compared to other non-religious assemblies or institutions, by imposing draconian prohibitions on Plaintiffs’ sincerely held religious beliefs without a compelling government interest, and without deploying the least restrictive means to achieve any permissible government interest D. That the Court award Plaintiffs nominal damages for the violation of Plaintiffs’ constitutional rights. E. That the Court adjudge, decree, and declare the rights and other legal relations within the subject matter here in controversy so that such declaration shall have the full force and effect of final judgment. F. That the Court retain jurisdiction over the matter for the purposes of enforcing the Court’s order. G. That the Court declare Plaintiffs are prevailing parties and award Plaintiffs the reasonable costs and expenses of this action, including a reasonable attorney’s fee, in accordance with 42 U.S.C. § 1988. H. That the Court grant such other and further relief as the Court deems equitable and just under the circumstances.
43

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 44 of 46 PageID #:44
Respectfully submitted, /s/ Horatio G. Mihet Mathew D. Staver* Horatio G. Mihet* Roger K. Gannam* Daniel J. Schmid* LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 Phone: (407) 875-1776 Facsimile: (407) 875-0770 Email: court@lc.org hmihet@lc.org rgannam@lc.org dschmid@lc.org *Pro hac vice applications pending
Attorneys for Plaintiffs
44

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 45 of 46 PageID #:45 VERIFICATION
I, Cristian Ionescu, am over the age of eighteen years and the Pastor of Elim Romanian Pentecostal Church, one of the Plaintiffs in this action. The statements and allegations that pertain to me and/or Plaintiff Elim Romanian Pentecostal Church or which I make in this VERIFIED COMPLAINT are true and correct, and based upon my personal knowledge (unless otherwise indicated). If called upon to testify to their truthfulness, I would and could do so competently. I declare under penalty of perjury, under the laws of the United States and the State of Illinois, that the foregoing statements are true and correct to the best of my knowledge.
Dated: May 7, 2020 /s/ Cristian Ionescu Christian Ionescu
45

Case: 1:20-cv-02782 Document #: 1 Filed: 05/07/20 Page 46 of 46 PageID #:46 VERIFICATION
I, Daniel Chiu, am over the age of eighteen years and the Pastor of Logos Baptist Ministries, one of the Plaintiffs in this action. The statements and allegations that pertain to me and/or Plaintiff Logos Baptist Ministries or which I make in this VERIFIED COMPLAINT are true and correct, and based upon my personal knowledge (unless otherwise indicated). If called upon to testify to their truthfulness, I would and could do so competently. I declare under penalty of perjury, under the laws of the United States and the State of Illinois, that the foregoing statements are true and correct to the best of my knowledge.
Dated: May 7, 2020 /s/ Daniel Chiu Daniel Chiu
46

Case: 1:20-cv-02782 Document #: 1-1 Filed: 05/07/20 Page 1 of 3 PageID #:47
GUBERNATORIAL DISASTER PROCLAMATION
WHEREAS, in late 2019, a new and significant outbreak of Coronavirus Disease 2019 (COVID-19) emerged in China; and,
WHEREAS, 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, 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, we are continuing our efforts to prepare for any eventuality given that this is a novel illness and given the known health risks it poses for the elderly and those with serious chronic medical conditions; and,
WHEREAS, the World Health Organization declared COVID-19 a Public Health Emergency of International Concern on January 30, 2020, and the United States Secretary of Health and Human Services declared that COVID-19 presents a public health emergency on January 27, 2020; and,
WHEREAS, the World Health Organization has reported 109,578 confirmed cases of COVID-19 and 3,809 deaths attributable to COVID-19 globally as of March 9, 2020; and,
WHEREAS, in response to the recent COVID-19 outbreaks in China, Iran, Italy and South Korea, the Centers for Disease Control and Prevention (“CDC”) has deemed it necessary to prohibit or restrict non-essential travel to or from those countries; and,
WHEREAS, the CDC has advised older travelers and those with chronic medical conditions to avoid nonessential travel, and has advised all travelers to exercise enhanced precautions; and,
WHEREAS, the CDC currently recommends community preparedness and everyday prevention measures be taken by all individuals and families in the United States, including voluntary home isolation when individuals are sick with respiratory symptoms, covering coughs and sneezes with a tissue, washing hands often with soap and water for at least 20 seconds, use of alcohol-based hand sanitizers with at least 60% alcohol if soap and water are not readily available, and routinely cleaning frequently touched surfaces and objects to increase community resilience and readiness for responding to an outbreak; and,
WHEREAS, a vaccine or drug is currently not available for COVID-19; and,
WHEREAS, in communities with confirmed COVID-19 cases, the CDC currently recommends mitigation measures, including staying at home when sick, when a household

Case: 1:20-cv-02782 Document #: 1-1 Filed: 05/07/20 Page 2 of 3 PageID #:48
member is sick with respiratory disease symptoms or when instructed to do so by public health officials or a health care provider and keeping away from others who are sick; and,
WHEREAS, despite efforts to contain COVID-19, the World Health Organization and the CDC indicate that it is expected to spread; and,
WHEREAS, there are currently 11 confirmed cases of COVID-19 and an additional 260 persons under investigation in Illinois; and,
WHEREAS, one of the confirmed cases of COVID-19 in Illinois has not been linked to any travel activity or to an already-confirmed COVID-19 case, which indicates community transmission in Illinois; and,
WHEREAS, based on the foregoing, the circumstances surrounding COVID-19 constitute a public health emergency under Section 4 of the Illinois Emergency Management Agency Act; and,
WHEREAS, it is the policy of the State of Illinois that the State will be prepared to address any disasters and, therefore, it is necessary and appropriate to make additional State resources available to ensure that the effects of COVID-19 are mitigated and minimized and that residents and visitors in the State remain safe and secure; and,
WHEREAS, this proclamation will assist Illinois agencies in coordinating State and Federal resources, including the Strategic National Stockpile of medicines and protective equipment, to support local governments in preparation for any action that may be necessary related to the potential impact of COVID-19 in the State of Illinois; and,
WHEREAS, these conditions provide legal justification under Section 7 of the Illinois Emergency Management Agency Act for the issuance of a proclamation of disaster;
NOW, THEREFORE, in the interest of aiding the people of Illinois and the local governments responsible for ensuring public health and safety, I, JB Pritzker, Governor of the State of Illinois, hereby proclaim as follows:
Section 1. Pursuant to the provisions of Section 7 of the Illinois Emergency Management Agency Act, 20 ILCS 3305/7, I find that a disaster exists within the State of Illinois and specifically declare all counties in the State of Illinois as a disaster area.
Section 2. The Illinois Department of Public Health and the Illinois Emergency Management Agency are directed to coordinate with each other with respect to planning for and responding to the present public health emergency.
Section 3. The Illinois Department of Public Health is further directed to cooperate with the Governor, other State agencies and local authorities, including local public health authorities, in the development of strategies and plans to protect the public health in connection with the present public health emergency.

Case: 1:20-cv-02782 Document #: 1-1 Filed: 05/07/20 Page 3 of 3 PageID #:49
Section 4. The Illinois Emergency Management Agency is directed to implement the State Emergency Operations Plan to coordinate State resources to support local governments in disaster response and recovery operations.
Section 5. To aid with emergency purchases necessary for response and other emergency powers as authorized by the Illinois Emergency Management Agency Act, the provisions of the Illinois Procurement Code that would in any way prevent, hinder or delay necessary action in coping with the disaster are suspended to the extent they are not required by federal law. If necessary, and in accordance with Section 7(1) of the Illinois Emergency Management Agency Act, 20 ILCS 3305/7(1), the Governor may take appropriate executive action to suspend additional statutes, orders, rules, and regulations.
Section 6. Pursuant to Section 7(3) of the Illinois Emergency Management Agency Act, 20 ILCS 3305/7(3), this proclamation activates the Governor’s authority, as necessary, to transfer the direction, personnel or functions of State departments and agencies or units thereof for the purpose of performing or facilitating emergency response programs.
Section 7. The Illinois Department of Public Health, Illinois Department of Insurance and the Illinois Department of Healthcare and Family Services are directed to recommend, and, as appropriate, take necessary actions to ensure consumers do not face financial barriers in accessing diagnostic testing and treatment services for COVID-19.
Section 8. The Illinois State Board of Education is directed to recommend, and, as appropriate, take necessary actions to address chronic absenteeism due to transmission of COVID-19 and to alleviate any barriers to the use of e-learning during the effect of this proclamation that exist in the Illinois School Code, 105 ILCS 5/1-1 et. seq.
Section 9. Pursuant to Section 7(14) of the Illinois Emergency Management Agency Act, 20 ILCS 3305/7(14), increases in the selling price of goods or services, including medical supplies, protective equipment, medications and other commodities intended to assist in the prevention of or treatment and recovery of COVID-19, shall be prohibited in the State of Illinois while this proclamation is in effect:
Section 10. This proclamation can facilitate a request for Federal emergency and/or disaster assistance if a complete and comprehensive assessment of damage indicates that effective recovery is beyond the capabilities of the State and affected local governments.
Section 11. This proclamation shall be effective immediately and remain in effect for 30 days.
Issued by the Governor March 9, 2020 Filed by the Secretary of State March 9, 2020

Case: 1:20-cv-02782 Document #: 1-2 Filed: 05/07/20 Page 1 of 2 PageID #:50

Case: 1:20-cv-02782 Document #: 1-2 Filed: 05/07/20 Page 2 of 2 PageID #:51

Case: 1:20-cv-02782 Document #: 1-3 Filed: 05/07/20 Page 1 of 3 PageID #:52

Case: 1:20-cv-02782 Document #: 1-3 Filed: 05/07/20 Page 2 of 3 PageID #:53

 
 Case: 1:20-cv-02782 Document #: 1-3 Filed: 05/07/20 Page 3 of 3 PageID #:54

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 1 of 9 PageID #:55

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 2 of 9 PageID #:56

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 3 of 9 PageID #:57

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 4 of 9 PageID #:58

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 5 of 9 PageID #:59

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 6 of 9 PageID #:60

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 7 of 9 PageID #:61

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 8 of 9 PageID #:62

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 9 of 9 PageID #:63

Case: 1:20-cv-02782 Document #: 1-5 Filed: 05/07/20 Page 1 of 5 PageID #:64

Case: 1:20-cv-02782 Document #: 1-5 Filed: 05/07/20 Page 2 of 5 PageID #:65

Case: 1:20-cv-02782 Document #: 1-5 Filed: 05/07/20 Page 3 of 5 PageID #:66

Case: 1:20-cv-02782 Document #: 1-5 Filed: 05/07/20 Page 4 of 5 PageID #:67

Case: 1:20-cv-02782 Document #: 1-5 Filed: 05/07/20 Page 5 of 5 PageID #:68

Case: 1:20-cv-02782 Document #: 1-6 Filed: 05/07/20 Page 1 of 3 PageID #:69

Case: 1:20-cv-02782 Document #: 1-6 Filed: 05/07/20 Page 2 of 3 PageID #:70

Case: 1:20-cv-02782 Document #: 1-6 Filed: 05/07/20 Page 3 of 3 PageID #:71

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 1 of 6 PageID #:72

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 2 of 6 PageID #:73

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 3 of 6 PageID #:74

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 4 of 6 PageID #:75

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 5 of 6 PageID #:76

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 6 of 6 PageID #:77

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 1 of 12 PageID #:78

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 2 of 12 PageID #:79

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 3 of 12 PageID #:80

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 4 of 12 PageID #:81

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 5 of 12 PageID #:82

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 6 of 12 PageID #:83

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 7 of 12 PageID #:84

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 8 of 12 PageID #:85

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 9 of 12 PageID #:86

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 10 of 12 PageID #:87

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 11 of 12 PageID #:88

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 12 of 12 PageID #:89

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 1 of 6 PageID #:90

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 2 of 6 PageID #:91

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 3 of 6 PageID #:92

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 4 of 6 PageID #:93

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 5 of 6 PageID #:94

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 6 of 6 PageID #:95

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 1 of 10 PageID #:96
RESTORE ILLINOIS
A Public Health Approach To Safely Reopen Our State
O ice of the Governor JB Pritzker May 5, 2020

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 2 of 10 PageID #:97

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 3 of 10 PageID #:98
An Introduction
tt
From the beginning of the new coronavirus pandemic, Illinois’ response has been guided by data, science, and public health experts. As community spread rapidly increased, Governor Pritzker moved quickly to issue a Disaster Proclamation on March 9, restrict visitors to nursing homes on March 11, close bars and restaurants for on-site consumption on March 16, move schools to remote learning on March 17, and issue a Stay at Home order on March 21. This virus has caused painful, cascading consequences for everyone in Illinois, but the science has been clear: in the face of a new coronavirus with unknown characteristics and in the absence of widespread testing availability and contact tracing, mitigation and maintaining a 6-foot social distance have been the only options to reduce the spread and save as many lives as possible. Millions of Illinoisans working together by staying at home and following experts’ recommendations have proven these mitigation and social distancing measures effective so far. The result has been a lower infection rate, fewer hospitalizations, and lower number of fatalities than projected without these measures. Our curve has begun to flatten. Nevertheless, the risk of spread remains, and modeling and data point to a rapid surge in new cases if all mitigation measures were to be immediately lifted. Now that Illinois is bending the curve, it is vitally important that we follow a safe and deliberate path forward to get our Illinois economy moving. That path forward is not what everyone wants or hopes for, but it will keep Illinoisans as safe as possible from this virus as our economy is reopening. Restore Illinois is about saving lives and livelihoods. This five-phased plan will reopen our state, guided by health metrics and with distinct business, education, and recreation activities characterizing each phase. This is an initial framework that will likely be updated as research and science develop and as the potential for treatments or vaccines is realized. The plan is based upon regional healthcare availability, and it recognizes the distinct impact COVID-19 has had on different regions of our state as well as regional variations in hospital capacity. The Illinois Department of Public Health (IDPH) has 11 Emergency Medical Services Regions that have traditionally guided its statewide public health work and will continue to inform this reopening plan. For the purposes of this plan, from those 11, four health regions are established, each with the ability to independently move through a phased approach: Northeast Illinois; North-Central Illinois; Central Illinois; and Southern Illinois.

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 4 of 10 PageID #:99
The five phases for each health region are as follows:
Phase 1 – Rapid Spread: The rate of infection among those tested and the number of patients admitted to the hospital is high or rapidly increasing. Strict stay at home and social distancing guidelines are put in place and only essential businesses remain open. Every region has experienced this phase once already, and could return to it if mitigation efforts are unsuccessful.
Phase 2 – Flattening: The rate of infection among those tested and the number of patients admitted to the hospital beds and ICU beds increases at an ever slower rate, moving toward a flat and even a downward trajectory. Nonessential retail stores reopen for curb-side pickup and delivery. Illinoisans are directed to wear a face covering when outside the home and can begin enjoying additional outdoor activities like golf, boating and fishing while practicing social distancing. To varying degrees, every region is experiencing flattening as of early May.
Phase 3 – Recovery: The rate of infection among those surveillance tested, the number of patients admitted to the hospital, and the number of patients needing ICU beds is stable or declining. Manufacturing, offices, retail, barbershops and salons can reopen to the public with capacity and other limits and safety precautions. Gatherings limited to 10 people or fewer are allowed. Face coverings and social distancing are the norm.
Phase 4 – Revitalization: The rate of infection among those surveillance tested and the number of patients admitted to the hospital continues to decline. Gatherings of 50 people or fewer are allowed, restaurants and bars reopen, travel resumes, child care and schools reopen under guidance from the Illinois Department of Public Health. Face coverings and social distancing are the norm.
Phase 5 – Illinois Restored: With a vaccine or highly effective treatment widely available or the elimination of any new cases over a sustained period, the economy fully reopens with safety precautions continuing. Conventions, festivals and large events are permitted, and all businesses, schools and places of recreation can open with new safety guidance and procedures in place reflecting the lessons learned during the COVID-19 pandemic.
Until COVID-19 is defeated, this plan also recognizes that just as health metrics will tell us it is safe to move forward, health metrics may also tell us to return to a prior phase. With a vaccine or highly effective treatment not yet available, IDPH will be closely monitoring key metrics to immediately identify trends in cases and hospitalizations to determine whether a return to a prior phase may become necessary.
All public health criteria included in this document are subject to change. As research and data on this novel coronavirus continue to develop, this plan
can and will be updated to reflect the latest science and data.

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 5 of 10 PageID #:100
RESTORE ILLINOIS HEALTH REGIONS

Boone Henderson

Rock Island Mercer
Warren

Jo Daviess Stephenson Winnebago

McHenry

10

Carroll Whiteside

1
Ogle
Lee

Lake
9

DeKalb

Kane

8 DuPage

11

Kendall

7 Cook

2 Henry

Bureau

LaSalle

Grundy

Putnam

Stark

Marshall

Knox

Livingston

Peoria

Woodford

Will Kankakee
Iroquois

McDonough Hancock

Fulton

Tazewell

McLean

Ford

Adams

Schuyler

Brown

Cass
3

Scott Morgan Pike

Mason Menard Sangamon

Logan

DeWitt Piatt

Macon

Christian

Moultrie

Champaign
Douglas
6

Greene Jersey

Macoupin Montgomery

Shelby

Coles Cumberland

Fayette

Effingham

Jasper

Vermilion Edgar
Clark Crawford

Wabash Edwards
Alexander
Calhoun

Madison
4

Bond Clinton

St. Clair Monroe

Washington

Randolph

Perry

Jackson

Marion

Clay

Richland Lawrence

Jefferson
5

Wayne

White Hamilton

Franklin Williamson

Saline Gallatin

NORTHEAST NORTH-CENTRAL CENTRAL SOUTHERN

Union

Johnson Pope

Hardin

Pulaski Massac

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 6 of 10 PageID #:101
Phase 1: Rapid Spread
WHAT THIS PHASE LOOKS LIKE
COVID-19 is rapidly spreading. The number of COVID-19 positive patients in the hospital, in ICU beds, and on ventilators is increasing. The public health response relies on dramatic mitigation measures, like stay at home orders and social distancing, to slow the spread of the virus and prevent a surge that overwhelms the health care system. With a Stay at Home order in place, only essential businesses are in operation and activities outside of the home are limited to essentials, like grocery shopping.
WHAT’S OPEN?
Gatherings: Essential gatherings, such as religious services, of 10 or fewer allowed; No non-essential gatherings of any size
Travel: Non-essential travel discouraged
Health care: Emergency procedures and COVID-19 care only
Education and child care: Remote learning in P-12 schools and higher education; Child care in groups of 10 or fewer for essential workers
Outdoor recreation: Walking, hiking and biking permitted; State parks closed
Businesses:
• Manufacturing: Essential manufacturing only • “Non-essential” businesses: Employees of “non-essential” businesses are required to work from home except
for Minimum Basic Operations • Bars and restaurants: Open for delivery, pickup and drive-through only • Entertainment: Closed • Personal care services and health clubs: Closed • Retail: Essential stores are open with strict restrictions; Non-essential stores are closed
HOW WE MOVE TO THE NEXT PHASE
Cases and Capacity:
• Slowing of new case growth • Availability of surge capacity in adult medical and surgical beds, ICU beds, and ventilators
Testing:
• Ability to perform 10,000 tests per day statewide • Testing available in region for any symptomatic health care workers and first responders

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 7 of 10 PageID #:102
Phase 2: Flattening
WHAT THIS PHASE LOOKS LIKE
The rise in the rate of infection is beginning to slow and stabilize. Hospitalizations and ICU bed usage continue to increase but are flattening, and hospital capacity remains stable. Face coverings must always be worn when social distancing is not possible. Testing capacity increases and tracing programs are put in place to contain outbreaks and limit the spread.
WHAT’S OPEN
Gatherings: Essential gatherings, such as religious services, of 10 or fewer allowed; No non-essential gatherings Travel: Non-essential travel discouraged Health care: Emergency and COVID-19 care continue; Elective procedures allowed once IDPH criteria met Education and child care: Remote learning in P-12 schools and higher education; Child care in groups of 10 or fewer for essential workers Outdoor recreation: Walking, hiking, and biking permitted; Select state parks open; Boating and fishing permitted; Golf courses open; All with IDPH approved safety guidance Businesses:
• Manufacturing: Essential manufacturing only • “Non-essential” businesses: Employees of “non-essential” businesses are required to work from home except
for Minimum Basic Operations • Bars and restaurants: Open for delivery, pickup, and drive through only • Personal care services and health clubs: Closed • Retail: Essential stores are open with restrictions; Non-essential stores open for delivery and curbside pickup
HOW WE MOVE TO THE NEXT PHASE
Cases and Capacity: The determination of moving from Phase 2 to Phase 3 will be driven by the COVID-19 positivity rate in each region and measures of maintaining regional hospital surge capacity. This data will be tracked from the time a region enters Phase 2, onwards.
• At or under a 20 percent positivity rate and increasing no more than 10 percentage points over a 14-day period, AND • No overall increase (i.e. stability or decrease) in hospital admissions for COVID-19-like illness for 28 days, AND • Available surge capacity of at least 14 percent of ICU beds, medical and surgical beds, and ventilators Testing: Testing available for all patients, health care workers, first responders, people with underlying conditions, and residents and staff in congregate living facilities Tracing: Begin contact tracing and monitoring within 24 hours of diagnosis
WHAT COULD CAUSE US TO MOVE BACK
IDPH will closely monitor data and receive on-the-ground feedback from local health departments and regional healthcare councils and will recommend moving back to the previous phase based on the following factors:
• Sustained rise in positivity rate • Sustained increase in hospital admissions for COVID-19 like illness • Reduction in hospital capacity threatening surge capabilities • Significant outbreak in the region that threatens the health of the region

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 8 of 10 PageID #:103
Phase 3: Recovery
t
WHAT THIS PHASE LOOKS LIKE
The rate of infection among those surveillance tested is stable or declining. COVID-19-related hospitalizations and ICU capacity remains stable or is decreasing. Face coverings in public continue to be required. Gatherings of 10 people or fewer for any reason can resume. Select industries can begin returning to workplaces with social distancing and sanitization practices in place. Retail establishments reopen with limited capacity, and select categories of personal care establishments can also begin to reopen with social distancing guidelines and personal protective equipment. Robust testing is available along with contact tracing to limit spread and closely monitor the trend of new cases.
WHAT’S OPEN
Gatherings: All gatherings of 10 people or fewer are allowed with this limit subject to change based on latest data & guidance Travel: Travel should follow IDPH and CDC approved guidance Health Care: All health care providers are open with DPH approved safety guidance Education and child care: Remote learning in P-12 schools and higher education; Limited child care and summer programs open with IDPH approved safety guidance Outdoor recreation: State parks open; Activities permitted in groups of 10 or fewer with social distancing Businesses:
• Manufacturing: Non-essential manufacturing that can safely operate with social distancing can reopen with IDPH approved safety guidance
• “Non-essential” businesses: Employees of “non-essential” businesses are allowed to return to work with IDPH approved safety guidance depending upon risk level, tele-work strongly encouraged wherever possible; Employers are encouraged to provide accommodations for COVID-19-vulnerable employees
• Bars and restaurants: Open for delivery, pickup, and drive through only • Personal care services and health clubs: Barbershops and salons open with IDPH approved safety guidance; Health
and fitness clubs can provide outdoor classes and one-on-one personal training with IDPH approved safety guidance • Retail: Open with capacity limits and IDPH approved safety guidance, including face coverings
HOW WE MOVE TO THE NEXT PHASE
Cases and Capacity: The determination of moving from Phase 3 to Phase 4 will be driven by the COVID-19 positivity rate in each region and measures of maintaining regional hospital surge capacity. This data will be tracked from the time a region enters Phase 3, onwards.
• At or under a 20 percent positivity rate and increasing no more than 10 percentage points over a 14-day period, AND
• No overall increase (i.e. stability or decrease) in hospital admissions for COVID-19-like illness for 28 days, AND
• Available surge capacity of at least 14 percent of ICU beds, medical and surgical beds, and ventilators Testing: Testing available in region regardless of symptoms or risk factors Tracing: Begin contact tracing and monitoring within 24 hours of diagnosis for more than 90% of cases in region
WHAT COULD CAUSE US TO MOVE BACK
IDPH will closely monitor data and receive on-the-ground feedback from local health departments and regional healthcare councils and will recommend moving back to the previous phase based on the following factors:
• Sustained rise in positivity rate • Sustained increase in hospital admissions for COVID-19 like illness • Reduction in hospital capacity threatening surge capabilities • Significant outbreak in the region that threatens the health of the region

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 9 of 10 PageID #:104
Phase 4: Revitalization
t
WHAT THIS PHASE LOOKS LIKE
There is a continued decline in the rate of infection in new COVID-19 cases. Hospitals have capacity and can quickly adapt for a surge of new cases in their communities. Additional measures can be carefully lifted allowing for schools and child care programs to reopen with social distancing policies in place. Restaurants can open with limited capacity and following strict public health procedures, including personal protective equipment for employees. Gatherings with 50 people or fewer will be permitted. Testing is widely available, and tracing is commonplace.
WHAT’S OPEN
Gatherings: Gatherings of 50 people or fewer are allowed with this limit subject to change based on latest data and guidance
Travel: Travel should follow IDPH and CDC approved guidance
Health care: All health care providers are open
Education and child care: P-12 schools, higher education, all summer programs, and child care open with IDPH approved safety guidance
Outdoor Recreation: All outdoor recreation allowed
Businesses:
• Manufacturing: All manufacturing open with IDPH approved safety guidance • “Non-essential” businesses: All employees return to work with IDPH approved safety guidance; Employers
are encouraged to provide accommodations for COVID-19-vulnerable employees • Bars and restaurants: Open with capacity limits and IDPH approved safety guidance • Personal care services and health clubs: All barbershops, salons, spas and health and fitness clubs open
with capacity limits and IDPH approved safety guidance • Entertainment: Cinema and theaters open with capacity limits and IDPH approved safety guidance • Retail: Open with capacity limits and IDPH approved safety guidance
HOW WE MOVE TO THE NEXT PHASE
Post-pandemic: Vaccine, effective and widely available treatment, or the elimination of new cases over a sustained period of time through herd immunity or other factors.
WHAT COULD CAUSE US TO MOVE BACK
IDPH will closely monitor data and receive on-the-ground feedback from local health departments and regional healthcare councils and will recommend moving back to the previous phase based on the following factors:
• Sustained rise in positivity rate • Sustained increase in hospital admissions for COVID-19 like illness • Reduction in hospital capacity threatening surge capabilities • Significant outbreak in the region that threatens the health of the region

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 10 of 10 PageID #:105
Phase 5: Illinois Restored
t
WHAT THIS PHASE LOOKS LIKE
Testing, tracing and treatment are widely available throughout the state. Either a vaccine is developed to prevent additional spread of COVID-19, a treatment option is readily available that ensures health care capacity is no longer a concern, or there are no new cases over a sustained period. All sectors of the economy reopen with new health and hygiene practices permanently in place. Large gatherings of all sizes can resume. Public health experts focus on lessons learned and building out the public health infrastructure needed to meet and overcome future challenges. Heath care equity is made a priority to improve health outcomes and ensure vulnerable communities receive the quality care they deserve.
WHAT’S OPEN
• All sectors of the economy reopen with businesses, schools, and recreation resuming normal operations with new safety guidance and procedures.
• Conventions, festivals, and large events can take place.

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 1 of 91 PageID #:106
Illinois State Police
COVID-19 Resources
Volume 1
April 8, 2020
DISCLAIMER: This overview is provided to assist in identifying resources available for your agency in developing best practices for dealing with COVID-19 issues. It should not be construed as Legal or Medical advice. Be advised that the COVID-19 pandemic is a dynamic and evolving situation, and information and
guidance can change rapidly. It is important to consult competent Legal and medical advice before utilizing any of this information. Please consult with your agency’s legal counsel or local State’s Attorney
before taking any enforcement action.
1

 
 Case: 1:20-cv-02782 Document #: 1-3 Filed: 05/07/20 Page 3 of 3 PageID #:54

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 1 of 9 PageID #:55

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 2 of 9 PageID #:56

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 3 of 9 PageID #:57

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 4 of 9 PageID #:58

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 5 of 9 PageID #:59

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 6 of 9 PageID #:60

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 7 of 9 PageID #:61

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 8 of 9 PageID #:62

Case: 1:20-cv-02782 Document #: 1-4 Filed: 05/07/20 Page 9 of 9 PageID #:63

Case: 1:20-cv-02782 Document #: 1-5 Filed: 05/07/20 Page 1 of 5 PageID #:64

Case: 1:20-cv-02782 Document #: 1-5 Filed: 05/07/20 Page 2 of 5 PageID #:65

Case: 1:20-cv-02782 Document #: 1-5 Filed: 05/07/20 Page 3 of 5 PageID #:66

Case: 1:20-cv-02782 Document #: 1-5 Filed: 05/07/20 Page 4 of 5 PageID #:67

Case: 1:20-cv-02782 Document #: 1-5 Filed: 05/07/20 Page 5 of 5 PageID #:68

Case: 1:20-cv-02782 Document #: 1-6 Filed: 05/07/20 Page 1 of 3 PageID #:69

Case: 1:20-cv-02782 Document #: 1-6 Filed: 05/07/20 Page 2 of 3 PageID #:70

Case: 1:20-cv-02782 Document #: 1-6 Filed: 05/07/20 Page 3 of 3 PageID #:71

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 1 of 6 PageID #:72

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 2 of 6 PageID #:73

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 3 of 6 PageID #:74

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 4 of 6 PageID #:75

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 5 of 6 PageID #:76

Case: 1:20-cv-02782 Document #: 1-7 Filed: 05/07/20 Page 6 of 6 PageID #:77

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 1 of 12 PageID #:78

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 2 of 12 PageID #:79

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 3 of 12 PageID #:80

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 4 of 12 PageID #:81

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 5 of 12 PageID #:82

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 6 of 12 PageID #:83

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 7 of 12 PageID #:84

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 8 of 12 PageID #:85

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 9 of 12 PageID #:86

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 10 of 12 PageID #:87

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 11 of 12 PageID #:88

Case: 1:20-cv-02782 Document #: 1-8 Filed: 05/07/20 Page 12 of 12 PageID #:89

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 1 of 6 PageID #:90

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 2 of 6 PageID #:91

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 3 of 6 PageID #:92

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 4 of 6 PageID #:93

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 5 of 6 PageID #:94

Case: 1:20-cv-02782 Document #: 1-9 Filed: 05/07/20 Page 6 of 6 PageID #:95

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 1 of 10 PageID #:96
RESTORE ILLINOIS
A Public Health Approach To Safely Reopen Our State
O ice of the Governor JB Pritzker May 5, 2020

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 2 of 10 PageID #:97

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 3 of 10 PageID #:98
An Introduction
tt
From the beginning of the new coronavirus pandemic, Illinois’ response has been guided by data, science, and public health experts. As community spread rapidly increased, Governor Pritzker moved quickly to issue a Disaster Proclamation on March 9, restrict visitors to nursing homes on March 11, close bars and restaurants for on-site consumption on March 16, move schools to remote learning on March 17, and issue a Stay at Home order on March 21. This virus has caused painful, cascading consequences for everyone in Illinois, but the science has been clear: in the face of a new coronavirus with unknown characteristics and in the absence of widespread testing availability and contact tracing, mitigation and maintaining a 6-foot social distance have been the only options to reduce the spread and save as many lives as possible. Millions of Illinoisans working together by staying at home and following experts’ recommendations have proven these mitigation and social distancing measures effective so far. The result has been a lower infection rate, fewer hospitalizations, and lower number of fatalities than projected without these measures. Our curve has begun to flatten. Nevertheless, the risk of spread remains, and modeling and data point to a rapid surge in new cases if all mitigation measures were to be immediately lifted. Now that Illinois is bending the curve, it is vitally important that we follow a safe and deliberate path forward to get our Illinois economy moving. That path forward is not what everyone wants or hopes for, but it will keep Illinoisans as safe as possible from this virus as our economy is reopening. Restore Illinois is about saving lives and livelihoods. This five-phased plan will reopen our state, guided by health metrics and with distinct business, education, and recreation activities characterizing each phase. This is an initial framework that will likely be updated as research and science develop and as the potential for treatments or vaccines is realized. The plan is based upon regional healthcare availability, and it recognizes the distinct impact COVID-19 has had on different regions of our state as well as regional variations in hospital capacity. The Illinois Department of Public Health (IDPH) has 11 Emergency Medical Services Regions that have traditionally guided its statewide public health work and will continue to inform this reopening plan. For the purposes of this plan, from those 11, four health regions are established, each with the ability to independently move through a phased approach: Northeast Illinois; North-Central Illinois; Central Illinois; and Southern Illinois.

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 4 of 10 PageID #:99
The five phases for each health region are as follows:
Phase 1 – Rapid Spread: The rate of infection among those tested and the number of patients admitted to the hospital is high or rapidly increasing. Strict stay at home and social distancing guidelines are put in place and only essential businesses remain open. Every region has experienced this phase once already, and could return to it if mitigation efforts are unsuccessful.
Phase 2 – Flattening: The rate of infection among those tested and the number of patients admitted to the hospital beds and ICU beds increases at an ever slower rate, moving toward a flat and even a downward trajectory. Nonessential retail stores reopen for curb-side pickup and delivery. Illinoisans are directed to wear a face covering when outside the home and can begin enjoying additional outdoor activities like golf, boating and fishing while practicing social distancing. To varying degrees, every region is experiencing flattening as of early May.
Phase 3 – Recovery: The rate of infection among those surveillance tested, the number of patients admitted to the hospital, and the number of patients needing ICU beds is stable or declining. Manufacturing, offices, retail, barbershops and salons can reopen to the public with capacity and other limits and safety precautions. Gatherings limited to 10 people or fewer are allowed. Face coverings and social distancing are the norm.
Phase 4 – Revitalization: The rate of infection among those surveillance tested and the number of patients admitted to the hospital continues to decline. Gatherings of 50 people or fewer are allowed, restaurants and bars reopen, travel resumes, child care and schools reopen under guidance from the Illinois Department of Public Health. Face coverings and social distancing are the norm.
Phase 5 – Illinois Restored: With a vaccine or highly effective treatment widely available or the elimination of any new cases over a sustained period, the economy fully reopens with safety precautions continuing. Conventions, festivals and large events are permitted, and all businesses, schools and places of recreation can open with new safety guidance and procedures in place reflecting the lessons learned during the COVID-19 pandemic.
Until COVID-19 is defeated, this plan also recognizes that just as health metrics will tell us it is safe to move forward, health metrics may also tell us to return to a prior phase. With a vaccine or highly effective treatment not yet available, IDPH will be closely monitoring key metrics to immediately identify trends in cases and hospitalizations to determine whether a return to a prior phase may become necessary.
All public health criteria included in this document are subject to change. As research and data on this novel coronavirus continue to develop, this plan
can and will be updated to reflect the latest science and data.

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 5 of 10 PageID #:100
RESTORE ILLINOIS HEALTH REGIONS

Boone Henderson

Rock Island Mercer
Warren

Jo Daviess Stephenson Winnebago

McHenry

10

Carroll Whiteside

1
Ogle
Lee

Lake
9

DeKalb

Kane

8 DuPage

11

Kendall

7 Cook

2 Henry

Bureau

LaSalle

Grundy

Putnam

Stark

Marshall

Knox

Livingston

Peoria

Woodford

Will Kankakee
Iroquois

McDonough Hancock

Fulton

Tazewell

McLean

Ford

Adams

Schuyler

Brown

Cass
3

Scott Morgan Pike

Mason Menard Sangamon

Logan

DeWitt Piatt

Macon

Christian

Moultrie

Champaign
Douglas
6

Greene Jersey

Macoupin Montgomery

Shelby

Coles Cumberland

Fayette

Effingham

Jasper

Vermilion Edgar
Clark Crawford

Wabash Edwards
Alexander
Calhoun

Madison
4

Bond Clinton

St. Clair Monroe

Washington

Randolph

Perry

Jackson

Marion

Clay

Richland Lawrence

Jefferson
5

Wayne

White Hamilton

Franklin Williamson

Saline Gallatin

NORTHEAST NORTH-CENTRAL CENTRAL SOUTHERN

Union

Johnson Pope

Hardin

Pulaski Massac

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 6 of 10 PageID #:101
Phase 1: Rapid Spread
WHAT THIS PHASE LOOKS LIKE
COVID-19 is rapidly spreading. The number of COVID-19 positive patients in the hospital, in ICU beds, and on ventilators is increasing. The public health response relies on dramatic mitigation measures, like stay at home orders and social distancing, to slow the spread of the virus and prevent a surge that overwhelms the health care system. With a Stay at Home order in place, only essential businesses are in operation and activities outside of the home are limited to essentials, like grocery shopping.
WHAT’S OPEN?
Gatherings: Essential gatherings, such as religious services, of 10 or fewer allowed; No non-essential gatherings of any size
Travel: Non-essential travel discouraged
Health care: Emergency procedures and COVID-19 care only
Education and child care: Remote learning in P-12 schools and higher education; Child care in groups of 10 or fewer for essential workers
Outdoor recreation: Walking, hiking and biking permitted; State parks closed
Businesses:
• Manufacturing: Essential manufacturing only • “Non-essential” businesses: Employees of “non-essential” businesses are required to work from home except
for Minimum Basic Operations • Bars and restaurants: Open for delivery, pickup and drive-through only • Entertainment: Closed • Personal care services and health clubs: Closed • Retail: Essential stores are open with strict restrictions; Non-essential stores are closed
HOW WE MOVE TO THE NEXT PHASE
Cases and Capacity:
• Slowing of new case growth • Availability of surge capacity in adult medical and surgical beds, ICU beds, and ventilators
Testing:
• Ability to perform 10,000 tests per day statewide • Testing available in region for any symptomatic health care workers and first responders

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 7 of 10 PageID #:102
Phase 2: Flattening
WHAT THIS PHASE LOOKS LIKE
The rise in the rate of infection is beginning to slow and stabilize. Hospitalizations and ICU bed usage continue to increase but are flattening, and hospital capacity remains stable. Face coverings must always be worn when social distancing is not possible. Testing capacity increases and tracing programs are put in place to contain outbreaks and limit the spread.
WHAT’S OPEN
Gatherings: Essential gatherings, such as religious services, of 10 or fewer allowed; No non-essential gatherings Travel: Non-essential travel discouraged Health care: Emergency and COVID-19 care continue; Elective procedures allowed once IDPH criteria met Education and child care: Remote learning in P-12 schools and higher education; Child care in groups of 10 or fewer for essential workers Outdoor recreation: Walking, hiking, and biking permitted; Select state parks open; Boating and fishing permitted; Golf courses open; All with IDPH approved safety guidance Businesses:
• Manufacturing: Essential manufacturing only • “Non-essential” businesses: Employees of “non-essential” businesses are required to work from home except
for Minimum Basic Operations • Bars and restaurants: Open for delivery, pickup, and drive through only • Personal care services and health clubs: Closed • Retail: Essential stores are open with restrictions; Non-essential stores open for delivery and curbside pickup
HOW WE MOVE TO THE NEXT PHASE
Cases and Capacity: The determination of moving from Phase 2 to Phase 3 will be driven by the COVID-19 positivity rate in each region and measures of maintaining regional hospital surge capacity. This data will be tracked from the time a region enters Phase 2, onwards.
• At or under a 20 percent positivity rate and increasing no more than 10 percentage points over a 14-day period, AND • No overall increase (i.e. stability or decrease) in hospital admissions for COVID-19-like illness for 28 days, AND • Available surge capacity of at least 14 percent of ICU beds, medical and surgical beds, and ventilators Testing: Testing available for all patients, health care workers, first responders, people with underlying conditions, and residents and staff in congregate living facilities Tracing: Begin contact tracing and monitoring within 24 hours of diagnosis
WHAT COULD CAUSE US TO MOVE BACK
IDPH will closely monitor data and receive on-the-ground feedback from local health departments and regional healthcare councils and will recommend moving back to the previous phase based on the following factors:
• Sustained rise in positivity rate • Sustained increase in hospital admissions for COVID-19 like illness • Reduction in hospital capacity threatening surge capabilities • Significant outbreak in the region that threatens the health of the region

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 8 of 10 PageID #:103
Phase 3: Recovery
t
WHAT THIS PHASE LOOKS LIKE
The rate of infection among those surveillance tested is stable or declining. COVID-19-related hospitalizations and ICU capacity remains stable or is decreasing. Face coverings in public continue to be required. Gatherings of 10 people or fewer for any reason can resume. Select industries can begin returning to workplaces with social distancing and sanitization practices in place. Retail establishments reopen with limited capacity, and select categories of personal care establishments can also begin to reopen with social distancing guidelines and personal protective equipment. Robust testing is available along with contact tracing to limit spread and closely monitor the trend of new cases.
WHAT’S OPEN
Gatherings: All gatherings of 10 people or fewer are allowed with this limit subject to change based on latest data & guidance Travel: Travel should follow IDPH and CDC approved guidance Health Care: All health care providers are open with DPH approved safety guidance Education and child care: Remote learning in P-12 schools and higher education; Limited child care and summer programs open with IDPH approved safety guidance Outdoor recreation: State parks open; Activities permitted in groups of 10 or fewer with social distancing Businesses:
• Manufacturing: Non-essential manufacturing that can safely operate with social distancing can reopen with IDPH approved safety guidance
• “Non-essential” businesses: Employees of “non-essential” businesses are allowed to return to work with IDPH approved safety guidance depending upon risk level, tele-work strongly encouraged wherever possible; Employers are encouraged to provide accommodations for COVID-19-vulnerable employees
• Bars and restaurants: Open for delivery, pickup, and drive through only • Personal care services and health clubs: Barbershops and salons open with IDPH approved safety guidance; Health
and fitness clubs can provide outdoor classes and one-on-one personal training with IDPH approved safety guidance • Retail: Open with capacity limits and IDPH approved safety guidance, including face coverings
HOW WE MOVE TO THE NEXT PHASE
Cases and Capacity: The determination of moving from Phase 3 to Phase 4 will be driven by the COVID-19 positivity rate in each region and measures of maintaining regional hospital surge capacity. This data will be tracked from the time a region enters Phase 3, onwards.
• At or under a 20 percent positivity rate and increasing no more than 10 percentage points over a 14-day period, AND
• No overall increase (i.e. stability or decrease) in hospital admissions for COVID-19-like illness for 28 days, AND
• Available surge capacity of at least 14 percent of ICU beds, medical and surgical beds, and ventilators Testing: Testing available in region regardless of symptoms or risk factors Tracing: Begin contact tracing and monitoring within 24 hours of diagnosis for more than 90% of cases in region
WHAT COULD CAUSE US TO MOVE BACK
IDPH will closely monitor data and receive on-the-ground feedback from local health departments and regional healthcare councils and will recommend moving back to the previous phase based on the following factors:
• Sustained rise in positivity rate • Sustained increase in hospital admissions for COVID-19 like illness • Reduction in hospital capacity threatening surge capabilities • Significant outbreak in the region that threatens the health of the region

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 9 of 10 PageID #:104
Phase 4: Revitalization
t
WHAT THIS PHASE LOOKS LIKE
There is a continued decline in the rate of infection in new COVID-19 cases. Hospitals have capacity and can quickly adapt for a surge of new cases in their communities. Additional measures can be carefully lifted allowing for schools and child care programs to reopen with social distancing policies in place. Restaurants can open with limited capacity and following strict public health procedures, including personal protective equipment for employees. Gatherings with 50 people or fewer will be permitted. Testing is widely available, and tracing is commonplace.
WHAT’S OPEN
Gatherings: Gatherings of 50 people or fewer are allowed with this limit subject to change based on latest data and guidance
Travel: Travel should follow IDPH and CDC approved guidance
Health care: All health care providers are open
Education and child care: P-12 schools, higher education, all summer programs, and child care open with IDPH approved safety guidance
Outdoor Recreation: All outdoor recreation allowed
Businesses:
• Manufacturing: All manufacturing open with IDPH approved safety guidance • “Non-essential” businesses: All employees return to work with IDPH approved safety guidance; Employers
are encouraged to provide accommodations for COVID-19-vulnerable employees • Bars and restaurants: Open with capacity limits and IDPH approved safety guidance • Personal care services and health clubs: All barbershops, salons, spas and health and fitness clubs open
with capacity limits and IDPH approved safety guidance • Entertainment: Cinema and theaters open with capacity limits and IDPH approved safety guidance • Retail: Open with capacity limits and IDPH approved safety guidance
HOW WE MOVE TO THE NEXT PHASE
Post-pandemic: Vaccine, effective and widely available treatment, or the elimination of new cases over a sustained period of time through herd immunity or other factors.
WHAT COULD CAUSE US TO MOVE BACK
IDPH will closely monitor data and receive on-the-ground feedback from local health departments and regional healthcare councils and will recommend moving back to the previous phase based on the following factors:
• Sustained rise in positivity rate • Sustained increase in hospital admissions for COVID-19 like illness • Reduction in hospital capacity threatening surge capabilities • Significant outbreak in the region that threatens the health of the region

Case: 1:20-cv-02782 Document #: 1-10 Filed: 05/07/20 Page 10 of 10 PageID #:105
Phase 5: Illinois Restored
t
WHAT THIS PHASE LOOKS LIKE
Testing, tracing and treatment are widely available throughout the state. Either a vaccine is developed to prevent additional spread of COVID-19, a treatment option is readily available that ensures health care capacity is no longer a concern, or there are no new cases over a sustained period. All sectors of the economy reopen with new health and hygiene practices permanently in place. Large gatherings of all sizes can resume. Public health experts focus on lessons learned and building out the public health infrastructure needed to meet and overcome future challenges. Heath care equity is made a priority to improve health outcomes and ensure vulnerable communities receive the quality care they deserve.
WHAT’S OPEN
• All sectors of the economy reopen with businesses, schools, and recreation resuming normal operations with new safety guidance and procedures.
• Conventions, festivals, and large events can take place.

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 1 of 91 PageID #:106
Illinois State Police
COVID-19 Resources
Volume 1
April 8, 2020
DISCLAIMER: This overview is provided to assist in identifying resources available for your agency in developing best practices for dealing with COVID-19 issues. It should not be construed as Legal or Medical advice. Be advised that the COVID-19 pandemic is a dynamic and evolving situation, and information and
guidance can change rapidly. It is important to consult competent Legal and medical advice before utilizing any of this information. Please consult with your agency’s legal counsel or local State’s Attorney
before taking any enforcement action.
1

 
 Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 55 of 91 PageID #:160
• • • •
55

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 56 of 91 PageID #:161
• • •
56

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 57 of 91 PageID #:162
• • •
• • • •
57

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 58 of 91 PageID #:163
The World Health Organization has declared COVID-19 to be a pandemic. The President of United States has declared the COVID-19 outbreak to be a national emergency. The Governor of Illinois has proclaimed COVID19 to be a state disaster and declared all counties in the state as a disaster area. Federal, state and local public officials have been required to take extraordinary measures to protect the health, safety and welfare of citizens.
Per COVID-19 Executive Order No. 5, Section 1: Beginning March 16, 2020 at 9 p.m. through March 30, 2020, all businesses in Illinois that offer food or beverages for on-premises consumption—including restaurants, bars, grocery stores, and food halls—must suspend service for and may not permit on-premises consumption. Such businesses are permitted and encouraged to serve food and beverages so that they may be consumed off-premises, as currently permitted by law, through means such as in-house delivery, third-party delivery, drive-through, and curbside pick-up. In addition, customers may enter the premises to purchase food or beverages for carry-out; however, establishments offering carry-out service, including food trucks, must ensure an environment where patrons maintain adequate social distancing. Businesses located in airports, hospitals, and dining halls in colleges and universities are exempt from the requirements of this Executive Order. Hotel restaurants may continue to provide room service and carry-out. Catering services may continue.
Per COVID-19 Executive Order No. 5, Section 2: Beginning March 18, 2020, all public and private gatherings in the State of Illinois of 50 people or more are prohibited for the duration of the Gubernatorial Disaster Proclamation. A public or private gathering includes community, civic, public leisure, faith-based events, sporting events with spectators, concerts, conventions, and any similar event or activity that brings together 50 or more people in a single room or a single space at the same time. This includes venues such as fitness centers/health clubs, bowling alleys, private clubs, and theatres. This does not include venues that provide essential goods or services such as grocery stores, hospitals, pharmacies, gas stations, banks/credit unions, and shelters.
Please be advised that your establishment is required to adhere to this Executive Order immediately, and that these steps are necessary and proper to prevent further spreading of COVID-19.
If you do not adhere to this Executive Order, the Illinois Department of Public Health and Certified Local Health Departments have 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 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 2305/3(c). Furthermore, police officers, sheriffs and all other officers in Illinois are authorized to enforce such orders.
Signed:
58

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 59 of 91 PageID #:164
CEASE AND DESIST NOTICE
The outbreak of COVID-19 has resulted in the following: (1) The World Health Organization declaring a pandemic, (2) the President of United States declaring a national emergency, and (3) the Governor of the State of Illinois, JB Pritzker, proclaiming a state disaster. Public officials at the federal, state, and local levels have employed extraordinary measures to protect the health, safety, and welfare of citizens.
Consistent with general health and safety actions taken by many public officials throughout the country, on March 20, 2020, Governor Pritzker issued an Executive Order (COVID 19 EXECUTIVE ORDER NO. 8) mandating that effective 5:00 p.m. on March 21, 2020, all businesses and operations in the State, except certain Essential Businesses and Operations that are specifically defined in the Executive Order, are required to cease all activities within the State, unless those activities involve employees working at their own residences.
Please be advised that your business does not qualify as an Essential Business or Operation as defined by Executive Order No.8 and must suspend all public business activities immediately.
Your failure to comply with this Executive Order may result in one or all of the following: (1) the rescission of licenses necessary to operate your business, (2) an order of closure issued by the state or local health department, or (3) civil and/or criminal liability.
It is imperative that you comply to protect the safety and health of your staff as well as your customers. Should you have any questions, please contact ________________________.
______________________________ March ____, 2020
59

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 60 of 91 PageID #:165

State Government

COVID‐19 Executive Order #8
IDPH Documents: 1. IDPH statement of authority EO 8.pdf
Illinois Department of Public Health

Enforcement Authority

Executive Order #8.pdf

Illinois Department of Commerce and
Economic Opportunity

Governor

ISP Documents: 1. Enforcement Protocol Exec Order 8 Essential Business.pdf 2. Enforcement Protocol Exec Order 8 Group Gathering.pdf
3. EO 8 Business C&D Generic.pdf
Illinois State Police

Illinois Attorney General
AG Documents: AG is providing sample pleadings and orders to State’s Attorneys to address non‐essential business remaining operational.

County Government

County Public Health Authority
Municipal Health Commissioners

County Commissioner/
Board

Sheriff’s Office

State’s Attorney

Mayor / City Counsel
Municipal Police 60

Key: Solid lines represent authority Dotted lines represent communication &
coordination

Municipal Government

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 61 of 91 PageID #:166
61

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 62 of 91 PageID #:167
62

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 63 of 91 PageID #:168
63

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 64 of 91 PageID #:169
64

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 65 of 91 PageID #:170
65

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 66 of 91 PageID #:171
66

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 67 of 91 PageID #:172
67

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 68 of 91 PageID #:173
720 ILCS 5/12-5(a) Class misdemeanor 720 ILCS 5/26-1(a)(1) Class C misdemeanor
68

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 69 of 91 PageID #:174
69

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 70 of 91 PageID #:175
70

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 71 of 91 PageID #:176
71

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 72 of 91 PageID #:177
February 2020 Office for Civil Rights, U.S. Department of Health and Human Services BULLETIN: HIPAA Privacy and Novel Coronavirus
In light of the Novel Coronavirus (2019-nCoV) outbreak, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) is providing this bulletin to ensure that HIPAA covered entities and their business associates are aware of the ways that patient information may be shared under the HIPAA Privacy Rule in an outbreak of infectious disease or other emergency situation, and to serve as a reminder that the protections of the Privacy Rule are not set aside during an emergency.
The HIPAA Privacy Rule protects the privacy of patients’ health information (protected health information) but is balanced to ensure that appropriate uses and disclosures of the information still may be made when necessary to treat a patient, to protect the nation’s public health, and for other critical purposes.
The U.S. Centers for Disease Control and Prevention (CDC) has advised: if you were in China within the past 14 days and feel sick with fever, cough, or difficulty breathing, you should get medical care. Call the office of your health care provider before you go and tell them about your travel and your symptoms. They will give you instructions on how to get care without exposing other people to your illness. While sick, avoid contact with people, don’t go out and delay any travel to reduce the possibility of spreading illness to others. More information from the CDC available at: https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf.
Sharing Patient Information
Treatment Under the Privacy Rule, covered entities may disclose, without a patient’s authorization, protected health information about the patient as necessary to treat the patient or to treat a different patient. Treatment includes the coordination or management of health care and related services by one or more health care providers and others, consultation between providers, and the referral of patients for treatment. See 45 CFR §§ 164.502(a)(1)(ii), 164.506(c), and the definition of “treatment” at 164.501.
Public Health Activities The HIPAA Privacy Rule recognizes the legitimate need for public health authorities and others responsible for ensuring public health and safety to have access to protected health information that is necessary to carry out their public health mission. Therefore, the Privacy Rule permits covered entities to disclose needed protected health information without individual authorization:
 To a public health authority, such as the CDC or a state or local health department, that is authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury or disability. This would include, for example, the reporting of disease or injury; reporting vital events, such as births or deaths; and conducting public health surveillance, investigations, or interventions. A “public health authority” is an agency or authority of the United States government, a State, a territory, a political subdivision of a State or territory, or Indian tribe that is responsible for public health matters as part of its official mandate, as well as a person or entity acting under a grant of authority from, or under a contract with, a public health agency. See 45 CFR §§ 164.501 and 164.512(b)(1)(i). For example, a covered entity may disclose to the CDC protected health information on an ongoing basis as needed to report all prior and prospective cases of patients exposed to or suspected or confirmed to have Novel Coronavirus (2019-nCoV).
72

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 73 of 91 PageID #:178
 At the direction of a public health authority, to a foreign government agency that is acting in collaboration with the public health authority. See 45 CFR 164.512(b)(1)(i).
 To persons at risk of contracting or spreading a disease or condition if other law, such as state law, authorizes the covered entity to notify such persons as necessary to prevent or control the spread of the disease or otherwise to carry out public health interventions or investigations. See 45 CFR 164.512(b)(1)(iv).
Disclosures to Family, Friends, and Others Involved in an Individual’s Care and for Notification A covered entity may share protected health information with a patient’s family members, relatives, friends, or other persons identified by the patient as involved in the patient’s care. A covered entity also may share information about a patient as necessary to identify, locate, and notify family members, guardians, or anyone else responsible for the patient’s care, of the patient’s location, general condition, or death. This may include, where necessary to notify family members and others, the police, the press, or the public at large. See 45 CFR 164.510(b).
 The covered entity should get verbal permission from individuals or otherwise be able to reasonably infer that the patient does not object, when possible; if the individual is incapacitated or not available, covered entities may share information for these purposes if, in their professional judgment, doing so is in the patient’s best interest.
 For patients who are unconscious or incapacitated: A health care provider may share relevant information about the patient with family, friends, or others involved in the patient’s care or payment for care, if the health care provider determines, based on professional judgment, that doing so is in the best interests of the patient. For example, a provider may determine that it is in the best interests of an elderly patient to share relevant information with the patient’s adult child, but generally could not share unrelated information about the patient’s medical history without permission.
 In addition, a covered entity may share protected health information with disaster relief organizations that, like the American Red Cross, are authorized by law or by their charters to assist in disaster relief efforts, for the purpose of coordinating the notification of family members or other persons involved in the patient’s care, of the patient’s location, general condition, or death. It is unnecessary to obtain a patient’s permission to share the information in this situation if doing so would interfere with the organization’s ability to respond to the emergency.
Disclosures to Prevent a Serious and Imminent Threat Health care providers may share patient information with anyone as necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public – consistent with applicable law (such as state statutes, regulations, or case law) and the provider’s standards of ethical conduct. See 45 CFR 164.512(j). Thus, providers may disclose a patient’s health information to anyone who is in a position to prevent or lesson the serious and imminent threat, including family, friends, caregivers, and law enforcement without a patient’s permission. HIPAA expressly defers to the professional judgment of health professionals in making determinations about the nature and severity of the threat to health and safety. See 45 CFR 164.512(j).
Disclosures to the Media or Others Not Involved in the Care of the Patient/Notification In general, except in the limited circumstances described elsewhere in this Bulletin, affirmative reporting to the media or the public at large about an identifiable patient, or the disclosure to the public or media of specific information about treatment of an identifiable patient, such as specific tests, test results or details of a patient’s illness, may not be done without the patient’s written authorization (or the written authorization of a personal representative who is a person legally authorized to make health care
73

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 74 of 91 PageID #:179
decisions for the patient). See 45 CFR 164.508 for the requirements for a HIPAA authorization. Where a patient has not objected to or restricted the release of protected health information, a covered hospital or other health care facility may, upon a request to disclose information about a particular patient asked for by name, release limited facility directory information to acknowledge an individual is a patient at the facility, and may provide basic information about the patient’s condition in general terms (e.g., critical or stable, deceased, or treated and released). Covered entities may also disclose information when the patient is incapacitated, if the disclosure is believed to be in the best interest of the patient and is consistent with any prior expressed preferences of the patient. See 45 CFR 164.510(a).
Minimum Necessary For most disclosures, a covered entity must make reasonable efforts to limit the information disclosed to that which is the “minimum necessary” to accomplish the purpose. (Minimum necessary requirements do not apply to disclosures to health care providers for treatment purposes.) Covered entities may rely on representations from a public health authority or other public official that the requested information is the minimum necessary for the purpose, when that reliance is reasonable under the circumstances. For example, a covered entity may rely on representations from the CDC that the protected health information requested by the CDC about all patients exposed to or suspected or confirmed to have Novel Coronavirus (2019-nCoV) is the minimum necessary for the public health purpose. In addition, internally, covered entities should continue to apply their role-based access policies to limit access to protected health information to only those workforce members who need it to carry out their duties. See 45 CFR §§ 164.502(b), 164.514(d).
Safeguarding Patient Information
In an emergency situation, covered entities must continue to implement reasonable safeguards to protect patient information against intentional or unintentional impermissible uses and disclosures. Further, covered entities (and their business associates) must apply the administrative, physical, and technical safeguards of the HIPAA Security Rule to electronic protected health information.
HIPAA Applies Only to Covered Entities and Business Associates
The HIPAA Privacy Rule applies to disclosures made by employees, volunteers, and other members of a covered entity’s or business associate’s workforce. Covered entities are health plans, health care clearinghouses, and those health care providers that conduct one or more covered health care transactions electronically, such as transmitting health care claims to a health plan. Business associates generally are persons or entities (other than members of the workforce of a covered entity) that perform functions or activities on behalf of, or provide certain services to, a covered entity that involve creating, receiving, maintaining, or transmitting protected health information. Business associates also include subcontractors that create, receive, maintain, or transmit protected health information on behalf of another business associate. The Privacy Rule does not apply to disclosures made by entities or other persons who are not covered entities or business associates (although such persons or entities are free to follow the standards on a voluntary basis if desired). There may be other state or federal rules that apply.
Business Associates A business associate of a covered entity (including a business associate that is a subcontractor) may make disclosures permitted by the Privacy Rule, such as to a public health authority, on behalf of a covered entity or another business associate to the extent authorized by its business associate agreement.
74

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 75 of 91 PageID #:180
Other Resources For more information on HIPAA and Public Health, please visit: https://www.hhs.gov/hipaa/for-professionals/special-topics/public-health/index.html For more information on HIPAA and Emergency Preparedness, Planning, and Response, please visit: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergencypreparedness/index.html General information on understanding the HIPAA Privacy Rule may be found at: https://www.hhs.gov/hipaa/for-professionals/privacy/index.html For information regarding how Federal civil rights laws apply in an emergency, please visit: https://www.hhs.gov/civil-rights/for-individuals/special-topics/emergencypreparedness/index.html
75

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 76 of 91 PageID #:181

Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule:
A Guide for Law Enforcement
What is the HIPAA Privacy Rule?
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule provides Federal privacy protections for individually identifiable health information, called protected health information or PHI, held by most health care providers and health plans and their business associates. The HIPAA Privacy Rule sets out how and with whom PHI may be shared. The Privacy Rule also gives individuals certain rights regarding their health information, such as the rights to access or request corrections to their information.

others, hired by covered entities to perform services or functions that involve access to PHI.
Who is not required to comply with the HIPAA Privacy Rule?
Many entities that may have health information are not subject to the HIPAA Privacy Rule, including:
• employers,
• most state and local police or other law enforcement agencies,
• many state agencies like child protective services, and
• most schools and school districts.

Who must comply with the HIPAA Privacy Rule?
HIPAA applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically (e.g., billing a health plan). These are known as covered entities. Hospitals, and most clinics, physicians and other health care practitioners are HIPAA covered entities. In addition, HIPAA protects PHI held by business associates, such as billing services and

While schools and school districts maintain student health records, these records are in most cases protected by the Family Educational Rights and Privacy Act (FERPA) and not HIPAA. HIPAA may apply however to patient records at a university hospital or to the health records of non-students at a university health clinic.

76

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 77 of 91 PageID #:182

Under what circumstances may a HIPAA covered entity disclose PHI to law enforcement?
A HIPAA covered entity may disclose PHI to law enforcement with the individual’s signed HIPAA authorization.
A HIPAA covered entity also may disclose PHI to law enforcement without the individual’s signed HIPAA authorization in certain incidents, including:
• To report PHI to a law enforcement official reasonably able to prevent or lessen a serious and imminent threat to the health or safety of an individual or the public.
• To report PHI that the covered entity in good faith believes to be evidence of a crime that occurred on the premises of the covered entity.
• To alert law enforcement to the death of the individual, when there is a suspicion that death resulted from criminal conduct.
• When responding to an off-site medical emergency, as necessary to alert law enforcement to criminal activity.
• To report PHI to law enforcement when required by law to do so (such as reporting gunshots or stab wounds).

• To comply with a court order or court-ordered warrant, a subpoena or summons issued by a judicial officer, or an administrative request from a law enforcement official (the administrative request must include a written statement that the information requested is relevant and material, specific and limited in scope, and de-identified information cannot be used).
• To respond to a request for PHI for purposes of identifying or locating a suspect, fugitive, material witness or missing person, but the information must be limited to basic demographic and health information about the person.
• To respond to a request for PHI about an adult victim of a crime when the victim agrees (or in limited circumstances if the individual is unable to agree). Child abuse or neglect may be reported, without a parent’s agreement, to any law enforcement official authorized by law to receive such reports.
For More Information This is a summary of the relevant provisions and does not include all requirements that are found in the HIPAA Privacy Rule. For complete information, please visit the U.S. Department of Health and Human Service’s Office for Civil Rights HIPAA web site at http://www.hhs.gov/ocr/privacy.
77

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 78 of 91 PageID #:183
COVID-19 and HIPAA: Disclosures to law enforcement, paramedics, other first responders and public health authorities
Does the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule allow a covered entity to share the name or other identifying information of an individual who has been infected with, or exposed to, the virus SARS-CoV-2, or the disease caused by the virus, Coronavirus Disease 2019 (COVID-19), with law enforcement, paramedics, other first responders, and public health authorities without an individual’s authorization?
Yes, the HIPAA Privacy Rule permits a covered entity to disclose the protected health information (PHI) of an individual who has been infected with, or exposed to, COVID-19, with law enforcement, paramedics, other first responders, and public health authorities1 without the individual’s HIPAA authorization, in certain circumstances, including the following2:
 When the disclosure is needed to provide treatment. For example, HIPAA permits a covered skilled nursing facility to disclose PHI about an individual who has COVID-19 to emergency medical transport personnel who will provide treatment while transporting the individual to a hospital’s emergency department. 45 CFR 164.502(a)(1)(ii); 45 CFR 164.506(c)(2).
 When such notification is required by law. For example, HIPAA permits a covered entity, such as a hospital, to disclose PHI about an individual who tests positive for COVID-19 in accordance with a state law requiring the reporting of confirmed or suspected cases of infectious disease to public health officials. 45 CFR 164.512(a).
 To notify a public health authority in order to prevent or control spread of disease. For example, HIPAA permits a covered entity to disclose PHI to a public health authority
1 Under HIPAA, “public health authority” means an agency or authority of the United States, a State, a territory, a political subdivision of a State or territory, or an Indian tribe, or a person or entity acting under a grant of authority from or contract with such public agency, including the employees or agents of such public agency or its contractors or persons or entities to whom it has granted authority, that is responsible for public health matters as part of its official mandate. 45 CFR 164.501 (definition of "public health authority"). 2 The HIPAA Privacy Rule limitations only apply if the entity or individual that is disclosing protected health information meets the definition of a HIPAA covered entity or business associate. This guidance provides examples of disclosures from certain types of entities, some of which are covered by HIPAA, and others that may not be. While the entities in the examples are covered under HIPAA, the examples are not intended to imply that all public health authorities, 911 call centers, or prison doctors, for example, are covered by HIPAA and are required to comply with the HIPAA Rules.
78

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 79 of 91 PageID #:184
(such as the Centers for Disease Control and Prevention (CDC), or state, tribal, local, and territorial public health departments) that is authorized by law to collect or receive PHI for the purpose of preventing or controlling disease, injury, or disability, including for public health surveillance, public health investigations, and public health interventions. 45 CFR 164.512(b)(1)(i); see also 45 CFR 164.501 (providing the definition of “public health authority”).  When first responders may be at risk of infection. A covered entity may disclose PHI to a first responder who may have been exposed to COVID-19, or may otherwise be at risk of contracting or spreading COVID-19, if the covered entity is authorized by law, such as state law, to notify persons as necessary in the conduct of a public health intervention or investigation. For example, HIPAA permits a covered county health department, in accordance with a state law, to disclose PHI to a police officer or other person who may come into contact with a person who tested positive for COVID-19, for purposes of preventing or controlling the spread of COVID-19. 45 CFR 164.512(b)(1)(iv).  When the disclosure of PHI to first responders is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public. A covered entity may disclose PHI to prevent or lessen a serious and imminent threat to a person or the public, when such disclosure is made to someone they believe can prevent or lessen the threat, which may include the target of the threat. For example, HIPAA permits a covered entity, consistent with applicable law and standards of ethical conduct, to disclose PHI about individuals who have tested positive for COVID-19 to fire department personnel, child welfare workers, mental health crisis services personnel, or others charged with protecting the health or safety of the public if the covered entity believes in good faith that the disclosure of the information is necessary to prevent or minimize the threat of imminent exposure to such personnel in the discharge of their duties. 45 CFR 164.512(j)(1).  When responding to a request for PHI by a correctional institution or law enforcement official having lawful custody of an inmate or other individual, if the facility or official represents that the PHI is needed for:
o providing health care to the individual; o the health and safety of the individual, other inmates, officers, employees and
others present at the correctional institution, or persons responsible for the transporting or transferring of inmates; o law enforcement on the premises of the correctional institution; or o the administration and maintenance of the safety, security, and good order of the correctional institution. For example, HIPAA permits a covered entity, such as a physician, located at a prison medical facility to share an inmate’s positive COVID-19 test results with correctional guards at the facility for the health and safety of all people at the facility. 45 CFR 164.512(k)(5).
79

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 80 of 91 PageID #:185
General Considerations: Except when required by law, or for treatment disclosures, a covered entity must make reasonable efforts to limit the information used or disclosed under any provision listed above to that which is the “minimum necessary” to accomplish the purpose for the disclosure. 45 CFR 164.502(b).
In some cases, more than one provision of the HIPAA Privacy Rule may apply to permit a particular use or disclosure of PHI by a covered entity. The illustrative examples below involve uses and disclosures of PHI that are permitted under 45 CFR 164.512(a), 164.512(b)(1), and/or 164.512(j)(1), depending on the circumstances.
ADDITIONAL EXAMPLES:
 Example: A covered entity, such as a hospital, may provide a list of the names and addresses of all individuals it knows to have tested positive, or received treatment, for COVID-19 to an EMS dispatch for use on a per-call basis. The EMS dispatch (even if it is a covered entity) would be allowed to use information on the list to inform EMS personnel who are responding to any particular emergency call so that they can take extra precautions or use personal protective equipment (PPE).
Discussion: Under this example, a covered entity should not post the contents of such a list publicly, such as on a website or through distribution to the media. A covered entity under this example also should not distribute compiled lists of individuals to EMS personnel, and instead should disclose only an individual’s information on a per-call basis. Sharing the lists or disclosing the contents publicly would not ordinarily constitute the minimum necessary to accomplish the purpose of the disclosure (i.e., protecting the health and safety of the first responders from infectious disease for each particular call).
 Example: A 911 call center may ask screening questions of all callers, for example, their temperature, or whether they have a cough or difficulty breathing, to identify potential cases of COVID-19. To the extent that the call center may be a HIPAA covered entity, the call center is permitted to inform a police officer being dispatched to the scene of the name, address, and screening results of the persons who may be encountered so that the officer can take extra precautions or use PPE to lessen the officer’s risk of exposure to COVID-19, even if the subject of the dispatch is for a non-medical situation.
Discussion: Under this example, a 911 call center that is a covered entity should only disclose the minimum amount of information that the officer needs to take appropriate precautions to minimize the risk of exposure. Depending on the circumstances, the minimum necessary PHI may include, for example, an individual’s name and the result of the screening.
80

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 81 of 91 PageID #:186
Covered entities should consult other applicable laws (e.g., state and local statutes and regulations) in their jurisdiction prior to using or making disclosures of individuals’ PHI, as such laws may place further restrictions on disclosures that are permitted by HIPAA. Information about HIPAA Privacy and COVID-19 is available at https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf. Information about disclosures of PHI to law enforcement officials is available in OCR’s HIPAA Guide for Law Enforcement at https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/special/emergency/f inal_hipaa_guide_law_enforcement.pdf. Information about uses and disclosures of PHI for public health is available at https://www.hhs.gov/hipaa/for-professionals/special-topics/public-health/index.html.
81

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 82 of 91 PageID #:187
CEASE AND DESIST NOTICE
Date: March 18, 2020
Due to the outbreak of COVID-19 and the declaration of a national public emergency, federal, state and local public officials have been required to take extraordinary measures to protect the health, safety and welfare of its citizens.
Please be advised that your establishment is unlawfully operating amidst a declared limitation on service that is necessary and proper to prevent further spreading of the COVID-19 pathogen. You must cease and desist all unlawful operations, specifically dine-in service, immediately.
Consistent with general health and safety actions taken by many public officials, and under the advice and authority of State public health officials, the Governor of the State of Illinois has ordered that dine-in service cease at establishments serving food and beverages. The Governor’s order does not prohibit carry out, drive through, curb side pickup, or home delivery services.
In consideration of the Governor’s order, the Illinois Liquor Control Commission (“State Commission”) has the responsibility and authority to take necessary actions to protect the “health, safety, and welfare of the People of the State of Illinois.” 235 ILCS 5-1-2; 235 ILCS 5/3-12(a)(2); 235 ILCS 5/3-4. Furthermore, the State Commission has the responsibility and authority to ensure that its license holders abide by all State and Federal laws. 11 Ill. Admin. Code 100.30. Your noncompliance with the Governor’s order could result in rescission of licenses required to operate your business; a closure order; or other criminal and civil remedies.
Should you have any questions, please contact the Chief of Enforcement for the ILCC, Les Peterson, at Les.Peterson@Illinois.gov.
Signed:
Les Peterson Chief of Enforcement Illinois Liquor Control Commission
82

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 83 of 91 PageID #:188
CEASE AND DESIST NOTICE
The outbreak of COVID-19 has resulted in the following: (1) The World Health Organization declaring a pandemic, (2) the President of United States declaring a national emergency, and (3) the Governor of the State of Illinois, JB Pritzker, proclaiming a state disaster. Public officials at the federal, state, and local levels have employed extraordinary measures to protect the health, safety, and welfare of citizens.
Consistent with general health and safety actions taken by many public officials throughout the country, on March 16, 2020, Governor Pritzker issued an Executive Order (COVID 19 EXECUTIVE ORDER NO. 5) mandating that effective 9:00 p.m. on March 16, 2020, all businesses in the State of Illinois that offer food or beverages for on-premises consumption suspend that service. The Governor’s Executive Order does not prohibit service of food or beverages by other means, such as take out, in home delivery, drive through, or curb side pickup.
Please be advised that your establishment is required to suspend all on-premises dine-in service immediately as a result of this Executive Order.
Your failure to comply with this Executive Order may result in one or all of the following: (1) the rescission of licenses necessary to operate your business (e.g. liquor license), (2) an order of closure issued by the state or local health department, or (3) civil and/or criminal liability.
It is imperative that you comply to protect the safety and health of your staff as well as your customers. Should you have any questions, please contact ________________________.
______________________________ March 18, 2020
83

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 84 of 91 PageID #:189
84

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 85 of 91 PageID #:190
85

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 86 of 91 PageID #:191
86

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 87 of 91 PageID #:192
Concerns – Oleoresin Capsicum (OC) Spray and Other Chemical Agents
ISP Officers should consider de-prioritizing the use of OC spray or other chemical agents if the benefit of using these tools is outweighed by the risk of spreading or contracting COVID-19. Using OC spray or other chemical agents increases body mucus secretions and may cause a person to cough, sneeze, spit, or lacrimate. These symptoms of OC spray or other chemical agents would aerosolize the Coronavirus in microparticles and make it become airborne which greatly increases the chance of being contaminated by COVID-19. If OC Spray or other chemical agents are used by ISP Officers, they should take into account the assessment of potential contamination which would not only include persons but the physical environment where any microparticles could land. Without proper and thorough decontamination procedures, there is a higher risk for contamination due to the Coronavirus. In addition, ISP Officers using OC spray or other chemical agents would end up going hands-on with a suspect which would further increase the risk for contamination. As established in the guidelines set forth by ISP Medical Director, Dr. Andrew Dennis, ISP Officers are reminded to adhere to proper utilization of PPE when interacting with others. Director Brendan F. Kelly
87

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 88 of 91 PageID #:193
FIREARMS TRAINING RECOMMENDATIONS RELATIVE TO COVID-19 PRECAUTIONS
The following COVID-19 SELF-ASSESSMENT should be performed by all personnel before entering the training facility.
• Is your current Temperature greater than 100°F ? • Are you currently experiencing a fever, shortness of breath, cough or sore throat? • In the past 14 days, have you been exposed to anyone who has tested positive, or is
under investigation for COVID-19? • In the past 14 days, have you traveled internationally, or to the states of CA, MA, NY, or
WA?
If you answer to any of the above is yes, contact your supervisor before entering the training facility.
GENERAL PRECAUTIONS • Personnel should be practicing IDPH recommendations concerning social distancing and hand hygiene (washing with soap and water more than 20 seconds, or using a hand sanitizer that consists of at least 60% alcohol). • Consistent with Range training protocols, do not eat or drink on the range. • Class size (on each range or classroom) should be limited to groups of 10 or less (including instructors) with at least 6’ of space between each person as often as possible. • N95 masks should be utilized by all participants at all times. • Care should be taken to practice frequent hand washing/sanitizing. Face touching and physical contact should be avoided. • At this time, avoid vehicle related range training. If necessary, simulate shooting from a vehicle with a chair. • All surfaces that are touched should be sprayed with a suitable sanitizer (i.e. Lysol). This includes door knobs, hand staplers, target holders, target controls, etc. • Follow all other decontamination guidelines for equipment (e.g. Duty belts and outer garmets)
88

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 89 of 91 PageID #:194
89

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 90 of 91 PageID #:195
90

Case: 1:20-cv-02782 Document #: 1-11 Filed: 05/07/20 Page 91 of 91 PageID #:196

Executive Order No.6 Enforcement Protocol

Pursuant to Governor’s Execute order 2020-08 (COVID-19 EO #6) the provisions of the Illinois

Vehicle Code dealing with the expiration of Driver’s License and Vehicle License Plate

registrations (plate stickers) are suspended for the duration of the State Emergency and thirty

(30) days past it.

The following sections of IVC should not be enforced for individuals whose Driver’s license or

registration stickers expired after February 7, 2020 (since SOS give 30 days’ grace)

• 625 ILCS 5/ 3-413(f) Operation of vehicle with expired registration plates or

registration sticker (Illinois only)

• 625 ILCS 5/6-101

Driver’s license expired less than one year (other provisions of

6-101 may still be enforced)

91

Case: 1:20-cv-02782 Document #: 1-12 Filed: 05/07/20 Page 1 of 4 PageID #:197

Post Office Box 540774 Orlando, FL 32854-0774 Telephone: 407•875•1776 Facsimile: 407•875•0770 www.LC.org
VIA FEDERAL EXPRESS

122 C Street N.W., Suite 360 Washington, DC 20001
Telephone: 202•289•1776 Facsimile: 202•737•1776
Reply to: Florida
May 2, 2020

Post Office Box 11108 Lynchburg, VA 24506-1108
Telephone: 434•592•7000 Facsimile: 407•875•0770 liberty@LC.org

Governor J.B. Pritzker Office of the Governor 207 State House Springfield, IL 62706

Dear Governor Pritzker:

We the undersigned are Pastors and faith leaders of Romanian-American churches in Metropolitan Chicago. Our congregations, some large and some small, comprise over 2,700 congregants. We have for decades faithfully served our communities within the State of Illinois, both in preaching the Gospel and through a multitude of vibrant programs and outreaches.

The Romanian-Americans in our congregations have chosen Chicago as their homeland, many of them after fleeing communist oppression that targeted religious gatherings, houses of worship and communal exercise of their religion and faith.

We found a home in Illinois, where the promise of freedom has been consistently and faithfully achieved, until your Executive Order 2020-10 unlawfully required that our churches shut their doors to our congregants, irrespective of any social distancing and health precautions that we are willing and able to implement, while allowing many other non-religious businesses and organization to remain open.

We love our adopted country, and the Freedom we have found here, too much to stay silent as you trample on our God-given rights. In light of our shared experience living behind the Iron Curtain – where discriminatory treatment of Churches by authoritarian governments was the norm – we are determined to do everything that we can to ensure that our beloved country and our State remain the beacons of freedom that brought us here.

We recognize your recent attempt to change course, yet we deem your April 30, 2020 allowance of churches to gather together with only 10 persons or less wholly inadequate. We regard this as further evidence of the arbitrary nature of your orders.

Case: 1:20-cv-02782 Document #: 1-12 Filed: 05/07/20 Page 2 of 4 PageID #:198
Governor J.B. Pritzker May 2, 2020 Page 2 of 4

You have allowed supermarkets, liquor stores, hardware stores, abortion clinics and a host of other businesses deemed “essential” to operate without the same limitations. You have singled out churches as not essential, and you have closed our doors even though we are willing and able to implement the same safety measures employed by those that remain open. This is a flagrant violation of the United States Constitution, and the liberties we have risked our lives to be able to enjoy in this once-free Nation.

Our willing compliance with your orders thus far has been voluntary. But this should not be misunderstood as our acquiescence to the improper and unconstitutional authority you have sought to exercise over our worship.

Your orders are in clear violation of our First Amendment rights. The Constitution and the rights enshrined therein are not suspended during a pandemic, and neither is our religion.

Please be advised that, beginning on May 10, 2020, our congregations will resume in-person church gatherings, and we will no longer adhere to the 10-person limit or the other unconstitutional restrictions comprised within your orders.

Our corporate worship is not only commanded by the Holy Scripture, but it has been a foundational element of religious duty in the Christian Church for over 2,000 years. This has been the sacred practice of the Romanian-American faith community in Chicago for decades. These gatherings are how we worship our God, and the means by which our soul is healed and restored.

We have not only a biblical mandate but also a legal right to meet. The prohibition on religious assembly and church worship services under various government COVID-19 closure orders have already been successfully challenged as a violation of the First Amendment.

In a decision issued on May 2, 2020, the Sixth Circuit Court of Appeal entered an injunction

against Kentucky Governor Andy Beshear, and rebuked his unequal treatment of churches in his

COVID-19 orders. See Maryville Baptist Church, Inc. v. Andy Beshear, Case No. 20-5427 (6th

Cir.),

copy

available

at

http://lc.org/PDFs/Attachments2PRsLAs/2020/

050220MaryvilleBaptistIPA.pdf.

The Sixth Circuit held that “Orders prohibiting religious gatherings, enforced by police officers telling congregants they violated a criminal law and by officers taking down license plate numbers, amount to a significant burden on worship gatherings.” The Sixth Circuit also held that treating churches differently from other “essential” or “life sustaining” non-religious organizations and businesses violates the Constitution.

In a stunning rebuke of Governor Beshear’s constitutional overreach, which is similar to yours, the Sixth Circuit said that “while the law may take periodic naps during a pandemic, we will not let it sleep through one.”

Case: 1:20-cv-02782 Document #: 1-12 Filed: 05/07/20 Page 3 of 4 PageID #:199
Governor J.B. Pritzker May 2, 2020 Page 3 of 4
In two other cases, the federal district courts have stated unequivocally that the government has no right to close churches, even in times of a pandemic, and certainly no right to treat churches unequally from other non-religious groups, organizations and business that are deemed “essential” and allowed to remain open. See, e.g., On Fire Christian Center, Inc. v. Fischer, No. 3:20-CV-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020) (“On Fire”); First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020) (“First Baptist”). A copy of the court opinions in On Fire may be found at http://lc.org/042920OnFireOpinion.pdf, and in First Baptist may be found at http://lc.org/042920FirstBaptistTRO.pdf.
Both of these cases recognize that – even during COVID-19 – the government may not prohibit churches from hosting drive-in and parking lot worship services (On Fire), and may not prohibit churches from hosting in-person worship services on equal terms with other businesses and organizations that are permitted to remain open provided certain guidelines are practiced (First Baptist).
We recognize that you have limited gatherings with the stated goal of reducing the spread of COVID-19 and protecting medical staff. We share this desire and commit to doing our part in protecting the physical well-being of all those who attend our church services.
During the COVID-19 pandemic, we will implement protocols such as those recommended by the CDC, including but not limited to:
(1) reduced seating for our in-person worship services; (2) our churches with moveable chairs will remove some of the chairs to maintain proper
social distancing; (3) we will mark chairs or pews for use or non-use, and/or ushers can seat people with social
distancing guidelines (while our family units can be seated together); (4) prior to and following any in-person service, our facilities will be sanitized; (5) attendees will be advised that, if they choose, they may wear masks and/or gloves; (6) attendees will be advised not to engage in hand shaking or other physical contact; (7) hand sanitizer will be available for use throughout the facility, and each person may be
given a squirt of sanitizer or a sanitizer wipe upon entering; (8) we will have selected points of entry and exit separated from each other establishing a
one-way traffic pattern; (9) our doors will be propped open or held open by ushers to prevent the need for congregants
to touch doors while entering and exiting the church or sanctuary; and (10) we will ask anyone with any symptoms of COVID-19 illness, anyone who works in
healthcare facilities that treat COVID-19 patients, and those that are elderly and/or with auto-immune issues to forego our in-person gatherings for a time.
These steps and others not enumerated here demonstrate our commitment to the well-being of the members of our congregations. This level of care and attention cannot be ordered by the state. We do this out of religious duty – it is our privilege to care for the bodies and the souls in our congregation, because no one can love our congregants more than we do.

Case: 1:20-cv-02782 Document #: 1-12 Filed: 05/07/20 Page 4 of 4 PageID #:200

Case: 1:20-cv-02782 Document #: 1-13 Filed: 05/07/20 Page 1 of 5 PageID #:201

Case: 1:20-cv-02782 Document #: 1-13 Filed: 05/07/20 Page 2 of 5 PageID #:202

Case: 1:20-cv-02782 Document #: 1-13 Filed: 05/07/20 Page 3 of 5 PageID #:203

Case: 1:20-cv-02782 Document #: 1-13 Filed: 05/07/20 Page 4 of 5 PageID #:204

Case: 1:20-cv-02782 Document #: 1-13 Filed: 05/07/20 Page 5 of 5 PageID #:205

Case: 1:20-cv-02782 Document #: 1-14 Filed: 05/07/20 Page 1 of 10 PageID #:206

Case: 1:20-cv-02782 Document #: 1-14 Filed: 05/07/20 Page 2 of 10 PageID #:207

Case: 1:20-cv-02782 Document #: 1-14 Filed: 05/07/20 Page 3 of 10 PageID #:208

Case: 1:20-cv-02782 Document #: 1-14 Filed: 05/07/20 Page 4 of 10 PageID #:209

Case: 1:20-cv-02782 Document #: 1-14 Filed: 05/07/20 Page 5 of 10 PageID #:210

Case: 1:20-cv-02782 Document #: 1-14 Filed: 05/07/20 Page 6 of 10 PageID #:211

Case: 1:20-cv-02782 Document #: 1-14 Filed: 05/07/20 Page 7 of 10 PageID #:212

 
 Case: 1:20-cv-02782 Document #: 1-14 Filed: 05/07/20 Page 8 of 10 PageID #:213

Case: 1:20-cv-02782 Document #: 1-14 Filed: 05/07/20 Page 9 of 10 PageID #:214

Case: 1:20-cv-02782 Document #: 1-14 Filed: 05/07/20 Page 10 of 10 PageID #:215

Case: 1:20-cv-02782 Document #: 1-15 Filed: 05/07/20 Page 1 of 5 PageID #:216
GOVERNOR DOUGLAS A. DUCEY
STATE OF ARIZONA
* EXECUTIVE ORDER
Executive Order 2020-18
Stay Home, Stay Healthy, Stay Connected Physical Distancing to Mitigate COVID-19 Transmission
WHEREAS, Arizona is committed to combating COVID-19, which represents a serious threat to public health; and
WHEREAS, the State of Arizona has taken proactive actions to mitigate the risk of COVID-19 to public health and address the economic impact of the COV!D-19 pandemic; and
WHEREAS, on March 11, 2020, pursuant to A.RS. §§ 26-303 and 36-787, I, as Governor of the State of Arizona, issued a declaration of a Public Health State of Emergency due to the necessity to prepare for, prevent, respond to, and mitigate the spread of COVID-19; and
WHEREAS, on March 15, 2020, a statewide school closure was issued in coordination with Superintendent of Public Instiuction Kathy Hoffman, later extended on March 30, 2020, through the end ofthe school year; and
WHEREAS, many businesses have greatly reduced their hours and operations as directed by health officials and in an effort to protect the public health and slow the spread of COVID-19; and
WHEREAS, on March 17, 2020, following updated guidance from the Centers for Disease Control and Prevention (CDC), the Arizona Department of Health Services (ADHS) issued updated guidance that included canceling or postponing gatherings of 10 or more people, recommending telework and other alternatives, restricting access to nursing homes, retirement homes and long-term care facilities to provide critical assistance, and providing recommendations to restaurants and eating establishments to mitigate the risk of COVID-19 transmission; and
WHEREAS, on March 19, 2020, Executive Order 2020-09 was issued requiring restaurants in Arizona counties with confirmed COVID-19 cases to provide dine-out options only and required all bars, gyms and movie theaters in those counties to close; and
WHEREAS, on March 19, 2020, Executive Order 2020-10 halted all elective surgeries in the State of Arizona to free up medical resources and maintain the capacity for hospitals and providers to continue offering vital services; and
WHEREAS, essential services were identified in Executive Order 2020-12 as those specifically necessary to promote the public health, safety and welfare of the state or assist others in fulfilling such functions; and

Case: 1:20-cv-02782 Document #: 1-15 Filed: 05/07/20 Page 2 of 5 PageID #:217
WHEREAS, to combat COVID-19, and at the recommendation of the state's health officials, the
State of Arizona must continue its efforts by further limiting potential exposure through a policy of physical distancing while maintaining social connectedness; and
WHEREAS, pursuant to A.R.S. §§ 26-303(E), the Governor of Arizona, after a Declaration is
issued, has "the right to exercise, within the area designated, all police power vested in the state by the constitution and laws of this state"; and
WHEREAS, pursuant to A.R.S. § 36-787(A), during a State of Emergency declared by the
Governor, the Arizona Department of Health Services has primary jurisdiction, responsibility and authority for:
(1) Planning and executing public health emergency assessment, mitigation, preparedness response and recovery of the State; (2) Coordinating public health emergency response among State, local and tribal authorities; (3) Collaborating with relevant federal government authorities, elected officials or other states, private organizations and private sector companies; and (4) Coordinating recovery operations and mitigation initiatives subsequent to public health emergencies; and
WHEREAS, on March 30, 2020, the Director of the Arizona Department ofHealth Services, based
on an epidemiological assessment of Arizona specific data and in alignment with CDC guidan.ce, recommended the state implement enhanced mitigation strategies.
NOW, THEREFORE, I, Douglas A. Ducey, Governor of the State of Arizona, by virtue of the authority vested in me by the Constitution and laws ofthe State, including but not limited to A.R.S. §
26-303 and after consultation with the Director of the Arizona Department of Health Services, do hereby order, effective at 5:00 p.m. on March 31, 2020:
1. Arizona shall institute a "Stay home, Stay healthy, Stay connected" policy that promotes physical distancing, while also encouraging social connectedness. This builds on actions the state has already taken, and further memorializes some already in effect, to slow the spread of COVID-19 and protect our citizens.
2. Under this policy, all individuals in the State ofArizona shall limit their time away from their place of residence or property, except: a. To conduct or participate in Essential Activities. b. For employment, to volunteer or participate in Essential Functions. c. To utilize any services or products provided by Essential Businesses. d. Employment, if as a sole proprietor or family owned business, work is conducted in a separate office space from your home and the business is not open to serve the public. e. No person shall be required to provide documentation or proof of their activities to justify their activities under this order.
3. Arizonans are encouraged to improve social connectedness, resiliency, and help-seeking behavior by:

Case: 1:20-cv-02782 Document #: 1-15 Filed: 05/07/20 Page 3 of 5 PageID #:218
a. Maintaining ongoing connections and communication with current social supports and structures such as family, friends, neighbors and other social groups;
b. Educating fellow Arizonans on the negative health impacts of social isolation; c. Developing habits and activities that increase resilience, such as physical activity,
virtual social gatherings, assisting neighbors, implementing or participating in connection campaigns for at·risk populations, and pa1ticipating in volunteer activities; d. Sharing information and awareness of newly available social services and resources to improve the stability of families and reduce financial stressors; and e. Sharing information and awareness of resources in the community by providing information on where and how high risk populations can access suicide prevention services throughout Arizona, including specific resources that are targeted to high risk populations.
4. Under this policy, Essential Activities include: a. Obtaining necessary supplies and services for family, household members and pets, such as groceries, food and supplies for household consumption and use, supplies and equipment needed to work from home, assignments for completion of distance teaming and products necessary to maintain safety, sanitation and essential maintenance of the home and residence. b. Engaging in activities essential for the health and safety of family, household members and pets, including things such as seeking medical, behavioral health or emergency services and obtaining medical supplies or medication. c. Caring for a family member, friend, or pet in another household or residence, which includes but is not limited to transportation of a family member, friend or their pet for essential health and safety activities and to obtain necessary supplies and services for the other household. d. Engaging in outdoor exercise activities, such as walking, hiking, running, biking or golfing, but only if appropriate physical distancing practices are used. e. Attending or conducting work or volunteering in Essential Functions which includes but is not limited to transporting children to child care services for attending work in an essential service. f. Engaging in constitutionally protected activities such as speech and religion, and any legal or court process provided that such is conducted in a manner that provides appropriate physical distancing to the extent feasible.
5. To the extent individuals are using shared or outdoor spaces when outside their residence or property for Essential Activities, they shall to the extent possible maintain physical distancing of at least six feet from any other person, consistent with guidance from the CDC.
6. All persons may leave their place of residence only for Essential Activities, to participate in or receive Essential Governmental Functions, or to participate in or fulfill Essential Functions outlined in Executive Order 2020-12.
7. Individuals shall limit use of public transportation to when absolutely necessary to obtain or conduct Essential Activities or attend work in an Essential Function. While using public transportation, riders shall maintain to the extent possible recommended physical distancing of at least six feet from other riders and the operator.

Case: 1:20-cv-02782 Document #: 1-15 Filed: 05/07/20 Page 4 of 5 PageID #:219
8. Individuals experiencing homelessness are exempt from this directive, but are strongly urged to obtain shelter as soon as possible and to the maximum extent practicable.
9. 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.
10. For purposes of this Executive Order, homes or residences include hotels, motels, shared rental units, shelters, and similar facilities.
11. Businesses and entities that remain open shall implement rules and procedures that facilitate physical clistancing and spacing of individuals of at least six feet. a. All businesses that are classified as Essential Functions may remain open and maintain operations, but shall establish and implement social distancing and sanitation measures established by the United States Department of Labor or the Arizona Department of Health Services. b. Essential Functions conducted by governmental entities shall remain open. Government leaders may adjust operations to promote physical distancing, including but not limited to offering on-line services as feasible, limiting the number of persons in a physical space or limiting access to specific facilities or areas to protect from the spread of COVID-19. c. Employment in Essential Businesses and Operations means an essential employee performing work for an Essential Function as identified in the "Prohibiting the Closure ofEssential Services" Executive Order list.
12. Non-essential businesses may continue to operate those activities that do not require in-person, on-site transactions and are encouraged to maintain at least minimum basic operations that maintain the value of the business' inventory, preserve the condition of the business' physical plant and equipment, ensure security, process payroll and employee benefits, facilitate employees of the business being able to continue to work remotely from their residences, and related functions to include mail pickup.
13. This Executive Order shall not be construed to prohibit working from home, operating a single owner business with no in-person, on-site public interaction, or restaurants and food services providing delivery or take-away services, so long as proper physical distancing and sanitation measures are established and implemented.
14. Arizonans are already acting responsibly during this public health emergency. The intent of this Executive Order is to ensure that people maintain physical distance to the maximum extent feasible, while enabling essential services to continue, protecting people's rights and slowing 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 physical distancing recommendations. All provisions of this Executive Order shall be interpreted to effectuate this intent. Prior to any enforcement action being taken to enforce this order in accordance with A.R.S. § 26-317, a person shall be notified and given an opportunity to comply.

Case: 1:20-cv-02782 Document #: 1-15 Filed: 05/07/20 Page 5 of 5 PageID #:220
15. Pursuant to A.RS. § 26-307, no county, city or town may make or issue any order, rule or regulation that conflicts with the policy, directives or intent of this Executive Order, including any order, rule or regulation that limits an individual from conducting, participating in or receiving Essential Services, Essential Activities or Non-essential Services as outlined in this order and prior executive orders.
16. 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.
17. This Executive Order shall be in effect until April 30, 2020, unless extended.
IN WITNESS WHEREOF, I have hereunto set my hand and caused to be affixed the Great Seal of the State of Arizona.
GOVERNOR
DONE at the Capitol in Phoenix on this Thirtieth Day of March in the Year Two Thousand and Twenty and of the Independence of the United States of America the Two Hundred d Forty-Fourth.
ATTEST:
Secretary of State

Case: 1:20-cv-02782 Document #: 1-16 Filed: 05/07/20 Page 1 of 4 PageID #:221

STATE OF ARIZONA OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL OPINION
By
MARK BRNOVICH ATTORNEY GENERAL
April 30, 2020

No. I20-008 (R20-008)
Re: Application of Executive Order 2020-18 to Religious Worship

To: The Honorable Kelly Townsend Representative Arizona House of Representatives Questions Presented 1. In reference to the right to “peaceably assemble” protected under the US Constitu-
tion, would attendance at a church service constitute an “essential activity” and be considered a permissible activity under Executive Order 2020-18?
2. Would parishioners be required to maintain social distancing by being 6 feet apart?
3. If they are required to maintain 6 feet apart and do not, under what law would they be in violation of and what punishment would they be subject to?
Summary Answer Attendance at a church service is an “essential activity” under Executive Order 2020-18. The Executive Order does not impose an absolute six-foot social distancing requirement on essential activities that are constitutionally protected. Instead, it provides flexibility to individuals

Case: 1:20-cv-02782 Document #: 1-16 Filed: 05/07/20 Page 2 of 4 PageID #:222
engaged in constitutionally protected activities by encouraging such activities to be “conducted in a manner that provides appropriate physical distancing to the extent feasible.” That being said, nothing in this opinion should be construed to require or recommend places of worship to reopen; that decision is beyond the scope of a legal opinion.
Background On March 11, 2020, Arizona Governor Doug Ducey issued a Declaration of Emergency declaring a State of Emergency throughout Arizona due to the COVID-19 outbreak. Pursuant to that State of Emergency, on March 30, 2020, Governor Ducey issued Executive Order 2020-18, which lists certain “Essential Activities” exempted from the order’s general proscription that “all individuals … shall limit their time away from their place of residence or property.” Ariz. Exec. Order No. 2020-18 § 2 (March 30, 2020) (“Executive Order”).1 These essential activities include “Engaging in constitutionally protected activities such as speech and religion … provided that such is conducted in a manner that provides appropriate physical distancing to the extent feasible.” Id. § 4(f).
Analysis I. Attending Places of Worship Is an “Essential Activity”
Attendance at a place of worship is clearly an “essential activity” under Executive Order 2020-18. The Executive Order expressly provides that essential activities include “[e]ngaging in constitutionally protected activities such as speech and religion.” Executive Order § 4(f). II. Social Distancing for Constitutionally Protected Activities
The Executive Order exempts essential activities from the requirement that individuals limit their time away from their place of residence or property. Executive Order §§ 2, 6. Gener-
1 On April 29, 2020, the Governor issued Executive Order 2020-33, to which this opinion is also applicable.
2

Case: 1:20-cv-02782 Document #: 1-16 Filed: 05/07/20 Page 3 of 4 PageID #:223
ally, when individuals engage in essential activities outside their residence or property, “they shall to the extent possible maintain physical distancing of at least six feet from any other person, consistent with guidance from the CDC.” Executive Order § 5 (emphasis added). The Executive Order, however, provides even wider latitude when constitutionally protected activities “such as speech and religion” are involved. For constitutionally protected activities, the Executive Order does not mandate a set distancing requirement. Instead, it provides that such protected activities be “conducted in a manner that provides appropriate physical distancing to the extent feasible.” Executive Order § 4(f) (emphasis added). This flexible language recognizes that what may be appropriate or feasible in one context may not be appropriate or feasible in another context. As such, the Executive Order encourages individuals to act responsibly based on individual circumstances. The flexible language also helps ensure that appropriate leeway is provided to individuals engaged in activities afforded heightened protections under both federal and state constitutions. No doubt recognizing the importance of these protections—even when faced with an emergency declaration—the “intent of th[e] Executive Order” expressly includes “protecting people’s rights … to the greatest extent possible.” Executive Order § 14. III. Applicable Penalties for Constitutionally Protected Activities
As set forth above, the Executive Order does not impose an absolute six-foot social distancing requirement for essential activities that are constitutionally protected, but rather requires “appropriate physical distancing to the extent feasible.” Id. § 4(f).
Conclusion Executive Order 2020-18 proclaims that a state of emergency exists due to COVID-19 and implores all Arizonans to use their best judgment in suspending public activities that can be delayed, for the purposes of protecting the individual and the public as well as preserving vital
3

Case: 1:20-cv-02782 Document #: 1-16 Filed: 05/07/20 Page 4 of 4 PageID #:224 healthcare resources. Nevertheless, during times of pandemic and other crises, “[a] frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” Ariz. Const. art. 2, § 1. Therefore, the Executive Order is properly interpreted to exempt constitutionally protected activities as “essential” and provides flexibility in social distancing.
Mark Brnovich Attorney General
4

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 1 of 11 PageID #:225
ORDER OF THE STATE HEALTH OFFICER SUSPENDING CERTAIN PUBLIC GATHERINGS
DUE TO RISK OF INFECTION BY COVID-19
(APPLICABLE STATEWIDE)
AMENDED APRIL 3, 2020
WHEREAS Coronavirus Disease 2019 (COVID-19) has been detected in Alabama; and
WHEREAS the appearance of COVID-19 in the State poses the potential of widespread exposure to an infectious agent that poses significant risk of substantial harm to a large number of people; and
WHEREAS the State Board of Health has designated COVID-19 to be a disease of epidemic potential, a threat to the health and welfare of the public, or otherwise of public health importance; and
WHEREAS, on March 13, 2020, on recommendation of the State Health Officer, Kay Ivey, Governor of the State of Alabama, declared a state public health emergency exists in the State of Alabama; and
WHEREAS, on March 16, 2020, the Jefferson County Health Officer, in response to a rapidly growing number of cases of COVID-19 being detected in Jefferson County, issued an order suspending certain public gatherings in that county; and
WHEREAS, on March 17, 2020, the State Health Officer issued a similar order for counties surrounding Jefferson, including Blount, St. Clair, Shelby, Tuscaloosa, and Walker Counties, and
WHEREAS, on March 19, 2020, the State Health Officer issued an order, and on March 20, 2020, and March 27, 2020, amended orders, of statewide application suspending certain public gatherings; and
WHEREAS further social distancing measures are necessary to be implemented on a statewide basis to prevent the spread of COVID-19; and
WHEREAS Ala. Code § 22-2-2(4) authorizes the State Health Officer, on behalf of the State Board of Health, to direct that conditions prejudicial to health in public places within the State be abated;
NOW THEREFORE, THESE PREMISES CONSIDERED, it is ordered that the following Stay at Home order be implemented statewide:
1. Effective Saturday, April 4, 2020, at 5:00 P.M., every person is ordered to stay at his or her place of residence except as necessary to perform any of the following “essential activities”:
1

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 2 of 11 PageID #:226
a. To obtain necessary supplies. A person may leave his or her place of residence to obtain the following supplies for himself or herself, for other household members, including pets, or for a loved one or friend who cannot or should not leave home or cannot care for himself or herself:
(i) Food and other consumer goods necessary to maintain a person’s daily routine or to maintain the safety, sanitation, and routine operation of a home or residence;
(ii) Supplies needed to work from home;
(iii) Pharmaceutical prescriptions or other medical supplies;
(iv) Fuel for automobiles or other vehicles or other vehicle supplies;
(v) Materials for distance learning or other education-related purposes; and
(vi) Any other supplies necessary to maintain a person’s or pet’s daily routine or to maintain the safety, sanitation, and routine operation of a home or residence.
b. To obtain or provide necessary services. A person may leave his or her place of residence to obtain or provide the following services for himself or herself, for other household members, including pets, or for a loved one or friend who cannot or should not leave home or cannot care for himself or herself:
(i) Dental, medical, or surgical procedures allowed under paragraph 14 of this Order;
(ii) Government-funded services or benefits;
(iii) Automobile repair services;
(iv) Services vital to the treatment or care of people with physical, intellectual, or developmental disabilities, or people with substance-use disorders;
(v) Services related to any public or private distance learning activities and education continuity, including all services under education continuity plans approved by the State Superintendent of Education; and
(vi) Any other services necessary to maintain a person’s or pet’s health and safety or to preserve the person’s ability to perform an essential activity as defined in this paragraph.
c. To attend religious services. A person may leave his or her place of residence to attend an event that is a religious worship service, wedding, or funeral in either of the following circumstances:
(i) The event involves fewer than 10 people and the people maintain a consistent sixfoot distance from one another; or
2

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 3 of 11 PageID #:227
(ii) The event is a “drive-in” worship service that adheres to the following rules:
1. All participants shall remain in their vehicles for the entirety of the service;
2. The participants in each vehicle all share the same place of residence; and
3. Participants do not come within six feet of participants in other vehicles.
d. To take care of others. A person may leave his or her place of residence to care for a family member, friend, or pet in another household, or to donate blood, or to transport family members, friends, or pets as allowed by this Order.
e. To work. A person may leave his or her place of residence to perform work at “essential businesses and operations” as defined in paragraph 2 below or to perform essential workrelated activities as follows:
(i) Work-related activities to maintain the value of a business, establishment, corporation or other organization, such as managing inventory, ensuring security, and processing payroll and employee benefits;
(ii) Work-related activities to enable people to work or shop remotely from their residences or to allow people to buy products through drive-by, curbside, or doorto-door delivery; or
(iii) Work-related activities that do not require any regular interaction within six feet of another person.
f. To engage in outdoor activity. A person may leave his or her place of residence to participate in outdoor activity that involves fewer than 10 people so long as the person maintains a consistent six-foot distance from other persons.
g. To seek shelter. A person may leave his or her place of residence to seek shelter if required by his or her employment by an “essential service of business” or if his or her residence is unsafe or at imminent risk of becoming unsafe. A person may also leave his or her place of residence to seek help from providers of basic necessities to economically disadvantaged people, such as food pantries.
h. To travel as required by law. A person may leave his or her place of residence to travel as required by law enforcement or court order, including the transportation of children required by a custody agreement.
i. To see family members. A person may leave his or her place of residence to visit the residence of other persons who are related to him or her.
Anyone leaving his or her home or place of residence as authorized in this order shall take reasonable steps to maintain six feet of separation from other persons.
3

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 4 of 11 PageID #:228
2. For the purposes of this Order, “essential businesses and operations” means and includes:
a. Government operations, including public safety and first responders, law enforcement, fire prevention and response, courts and court personnel, military, emergency management personnel, corrections, probation and parole, child protection, child welfare, EMTs, 911 call-center employees, all workers and vendors that support law enforcement and emergency management operations and services, and other federal, state, tribal, or local officials or employees;
b. Health-care providers and caregivers, including physicians, dentists, mental health workers, nurses, chiropractors, physical therapists, veterinarians, hospitals/clinics, medical practices, research and laboratory operations, hospice, health care facilities, clinical staff, nursing homes, residential health care facilities, adult day care centers, blood banks, congregate-care facilities, assisted living facilities, elder care, medical wholesale and distribution, home health workers and aides, medical supply and equipment manufacturers and providers, medical waste disposal, hazardous waste disposal, other ancillary healthcare services;
c. Infrastructure Operations, including electric, natural gas, and water utilities, nuclear facilities and other generating facilities, utility poles and components, fuel pipelines and transmission systems, petroleum producers, telecommunications, electronic security and life safety services, wireless communication companies, communications sales and customer support, telecommunication and data centers, cybersecurity operations; businesses and other operations concerned with flood control, aviation, and the maintenance, operation, or construction of dams, airports, ports, roads and highways, and mass transit; automotive sales and repair, vehicle rental and taxi services, network providers (such as Uber and Lyft), freight and passenger rail, motor carriers, pipelines, and other transportation infrastructure and businesses, water and waste water systems, transportation companies such as airlines and bus lines, hazardous waste disposal, hotels and commercial lodging services, and RV parks;
d. Manufacturing facilities, including food processing and production; companies that produce pharmaceuticals, food additives, medical equipment, medical devices and supplies, technology, biotechnology, chemical products, telecommunications products; automotive production and suppliers, airplane, ship, and space vehicle or rocket manufacturers; companies involved in healthcare, energy, steel and steel products, fuel and petroleum exploration and production, lubricants, greases and engine oils, mining, national defense, sanitary and cleaning products, household products, personal care products, products used by any other Essential Business or Operation;
e. Agricultural operations and farms, including food cultivation, livestock, cattle, poultry and seafood operations, transportation of agricultural products, livestock auctions, feedlots, dealers and brokers of livestock, farmer’s markets, feed stores, repairers and suppliers of agricultural equipment, gas, diesel and petroleum suppliers, companies involved with aquaculture, horticulture, and chemicals, including pesticide, herbicide,
4

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 5 of 11 PageID #:229
and fertilizer producers and distributors, forest products businesses, including those involved in forestry operations, logging, manufacture of lumber and paper products; meat processing facilities, rendering facilities and transporters, feed processing facilities, veterinary services;
f. Essential retailers, defined as all supermarkets, food and beverage stores, including liquor stores and warehouse clubs, food providers, convenience stores, office-supply stores, bookstores, computer stores, pharmacies, health care supply stores, hardware stores, home improvement stores, building materials stores, stores that sell electrical, plumbing, and heating materials, gun stores, gas stations; auto, farm equipment, bicycle, motorcycle, and boat supply and repair stores, and businesses that ship or deliver groceries, food, and goods directly to residences;
g. Restaurants and bars;
h. Essential personal services, defined as trash collection, mail and shipping services, home repair, automotive sales and repair; warehouse, distribution and fulfillment centers, kennels, animal shelters, laundromats/laundry service, drycleaners, childcare facilities, public transportation, and providers of business services including security and payroll; funeral, cemetery, and related services;
i. Media operations, including newspapers, digital news sites, television, radio and other media services;
j. Education operations, including educators supporting public and private K-12 schools, colleges and universities or other educational institutions, for purposes of facilitating distance learning and education continuity plans approved by the State Superintendent of Education, performing critical research or other essential functions, including public schools preparing and transporting distance-learning materials and meals to eligible students and colleges providing lodging for students (all in compliance with paragraph 12 below);
k. Financial services, including banks and related financial institutions, credit unions, payday lenders, businesses that process credit card and other financial transactions, and other services related to financial markets;
l. Professional Services, including legal services, accounting services, insurance services, real estate services (including appraisal and title services);
m. Providers of basic necessities to economically disadvantaged populations including businesses, religious and secular non-profit organizations, food banks, homeless shelters and congregate-care facilities;
n. Construction and construction-related services, including building and construction, lumber, building materials and hardware businesses, electricians, plumbers, other construction tradesmen and tradeswomen, exterminators; cleaning and janitorial, HVACR and water heating businesses; painting, moving and relocating services, other 5

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 6 of 11 PageID #:230
skilled trades, and other related construction firms and professionals for maintaining essential infrastructure;
o. Essential public services, defined as services necessary to maintain the safety, sanitation and essential operations of residences and essential businesses and essential business operations, including law enforcement, fire prevention and response, firearm and ammunition manufacturers and retailers, building code enforcement, security, emergency management and response, building cleaning including disinfection, automotive sales and repair, mortuaries and cemeteries;
p. Military or defense operations, including employers and personnel who support the essential products and services required to meet national security commitments, including personnel working for companies and their subcontractors, who perform under contract to the Department of Defense providing materials and services to the Department of Defense and government-owned/contractor-operated and governmentowned/government-operated facilities.
q. Essential services or product providers, defined as vendors that provide services or products, including logistics, transportation, and technology support, child care programs and services, medical waste disposal, hazardous waste disposal, services needed to ensure the continuing operation of an essential business or operation, operation of government agencies, and to provide for the health, safety and welfare of the public;
r. Religious entities, including religious and faith-based facilities, entities and groups;
s. Federally-designated critical infrastructure, defined as workers and related industries identified by the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA) in its “Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response,” https://www.cisa.gov/identifyingcritical-infrastructure-during-covid-19, as may be amended;
t. Other state-designated essential businesses and operations, defined as businesses and operations deemed essential by the Alabama Department of Public Health or the Alabama Emergency Management Agency; and
u. Support operations for essential businesses and operations, defined as employees, contractors, agents, suppliers, or vendors of an essential business or operation as defined in this paragraph.
3. Operators of “essential businesses and operations” as defined in paragraph 2 may, but need not, issue credentials to their employees verifying their status as an employee of an essential business or operation. The decision to provide any such credentials is left to the discretion of the essential business or operation.
6

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 7 of 11 PageID #:231
4. “Essential businesses and operations” as defined in paragraph 2 shall take all reasonable steps, for employees and customers, to (a) avoid gatherings of 10 persons or more and (b) maintain a consistent six-foot distance between persons.
5. Effective March 28, 2020, at 5:00 P.M., the following businesses, venues, and activities shall be closed to non-employees or not take place:
a. Entertainment venues as follows: (i) Night clubs (ii) Bowling alleys
(iii) Arcades (iv) Concert venues (v) Theaters, auditoriums, and performing arts centers (vi) Tourist attractions (including museums and planetariums) (vii) Racetracks (viii) Indoor children’s play areas (ix) Adult entertainment venues (x) Adult novelty stores (xi) Casinos (xii) Bingo halls (xiii) Venues operated by social clubs b. Athletic facilities and activities as follows:
(i) Fitness centers and commercial gyms (ii) Spas and public or commercial swimming pools (iii) Yoga, barre, and spin facilities (iv) Spectator sports (v) Sports that involve interaction with another person of closer than 6 feet (vi) Activities that require use of shared sporting apparatus and equipment
7

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 8 of 11 PageID #:232
(vii) Activities on commercial or public playground equipment
c. Close-contact service providers as follows:
(i) Barber shops
(ii) Hair salons
(iii) Waxing salons
(iv) Threading salons
(v) Nail salons and spas
(vi) Body art facilities and tattoo services
(vii) Tanning salons
(viii) Massage therapy establishments and services
6. Effective Saturday, April 4, 2020, at 5:00 P.M., all “essential retailers” as defined in paragraph 2, including grocery stores, pharmacies, and “big box” stores, shall comply with the following rules in addition to any other applicable provisions of this Order:
a. Emergency maximum occupancy rate. Occupancy shall be limited to no more than 50 percent of the normal occupancy load as determined by the fire marshal. This “emergency maximum occupancy rate” shall be posted in a conspicuous place, and enough staff shall be posted at the store entrances and exits to enforce this requirement.
b. Social distancing. An employee of the essential retailer place may not knowingly allow customers or patrons to congregate within six feet of one another.
c. Sanitation. The essential retailer shall take reasonable steps to comply with guidelines on sanitation from the Centers for Disease Control and Prevention and the Alabama Department of Public Health.
7. Notwithstanding any other provision of this Order, a business may continue to operate through curbside pickup, delivery, remotely, or any other method that does not involve a customer entering its building, provided that the business takes all reasonable steps to ensure a consistent six-foot distance between persons.
8. Effective March 28, 2020, at 5:00 P.M., all non-work related gatherings of 10 persons or more, or non-work related gatherings of any size that cannot maintain a consistent six-foot distance between persons, are prohibited.
9. Effective immediately, any person who has tested positive for COVID-19—other than institutionalized persons—shall be quarantined to their place of residence for a period of 14 days
8

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 9 of 11 PageID #:233
after receiving positive test results. Any person quarantined pursuant to this provision shall not leave their place of residence for any reason other than to seek necessary medical treatment. Any person requiring assistance while under quarantine may contact Alabama Voluntary Organizations Active in Disaster (VOAD), http://alvoad.communityos.org/cms/. While under quarantine, the person must shall take precautions as directed by his or her health care provider or the Department of Public Health to prevent the spread of the disease to others.
10. Effective March 28, 2020, at 5:00 P.M., all beaches shall be closed. For purposes of this section, the term “beach” means the sandy shoreline area abutting the Gulf of Mexico, whether privately or publicly owned, including beach access points.
11. Effective, March 20, 2020, all regular programs at Senior Citizen Centers shall be ended except that Senior Citizen Centers and their partners are urged to assure that their clients continue to receive needed meals via curbside pick-up or delivery.
12. Effective March 20, 2020, the following shall be closed:
a. In-person instruction or classes at all schools, public and private, including but not limited to: elementary, secondary, postsecondary, technical, or specialty schools, and colleges and universities.
(i) This order is not intended to prevent any employers from making continued necessary staffing decisions. Employers are authorized to advise employees to work from home or maintain flexible work schedules. If working from home is not feasible, the employee should practice social distancing, maintaining consistent six-foot distance between persons, for the duration of this order and follow public health guidelines.
(ii) This order shall not apply to daytime special activities programs provided by local boards of education for children, ages 6 through 12 as of March 13, 2020, of first responders (including EMS and fire services) and licensed health-care providers and their essential employees; and essential employees of the following categories of employers: state and local governments, law enforcement, hospitals, nursing home/long-term care facilities, (including assisted living and specialty-care assisted living facilities), end-stage renal disease treatment centers, pharmacies, and grocery stores. In these special activities programs, 12 or more children shall not be allowed in any one room at the same time, and operators of these programs are encouraged to use enhanced sanitation practices consistent with guidance from the CDC and the Alabama Department of Public Health.
b. Facilities providing child day care, including any child day care facility described in Ala. Code § 38-7-2, at which 12 or more children are in a room or other enclosed space at the same time. Center employees are encouraged to use enhanced sanitation and social-distancing practices consistent with guidance from the Centers for Disease Control and Prevention and the Alabama Department of Public Health. This Order does not change the Minimum Standards for Day Care promulgated by the Alabama Department of Human Resources, except that 12 or more children shall not be allowed in a room or other enclosed space at the same time.
9

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 10 of 11 PageID #:234
13. Effective March 20, 2020, all Hospitals and Nursing Home/Long Term Care Facilities (including Assisted Living and Specialty Care Assisted Living Facilities) shall prohibit visitation of all visitors, as defined by the facility, and non-essential health care personnel, except for certain compassionate care situations such as maternity and end-of-life.
14. Effective March 28, 2020 at 5:00 P.M., all dental, medical, or surgical procedures shall be postponed until further notice, subject to the following exceptions:
a. Dental, medical, or surgical procedures necessary to treat an emergency medical condition. For purposes of this order, “emergency medical condition” is defined as a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected by a person’s licensed medical provider to result in placing the health of the person in serious jeopardy or causing serious impairment to bodily functions or serious dysfunction of bodily organs.
b. Dental, medical, or surgical procedures necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.
15. Effective March 19, 2020, at 5:00 P.M., all restaurants, bars, breweries, or similar establishments shall not permit on-premises consumption of food or drink.
a. Such establishments may continue to offer food for take-out or delivery provided the social distancing protocols, including maintaining a consistent six-foot distance between persons, are followed.
b. Such establishments are strongly encouraged to offer online ordering and curbside pick-up of food.
c. Hospital food service areas are excluded from this order provided they have their own social distancing plan.
16. This Order shall remain in full force and effect until 5:00 P.M. on April 30, 2020. Prior to 5:00 P.M. on April 30, 2020, a determination shall be made whether to extend this Order—or, if circumstances permit, to relax this Order.
17. This Order supersedes and preempts all orders previously issued by the State Health Officer and Jefferson and Mobile County Health Officers concerning COVID-19 mitigation measures, and this Order shall remain in full force and effect until rescinded by order of the State Health Officer or its expiration. After the date this order is issued, the Jefferson and Mobile County Health Officers are authorized, after approval by the State Health Officer, to implement more stringent measures as local circumstances require.
This Order also supersedes and preempts any county and municipal orders or ordinances, whenever adopted, that purport to impose less stringent COVID-19-related curfew or quarantine measures.
10

Case: 1:20-cv-02782 Document #: 1-17 Filed: 05/07/20 Page 11 of 11 PageID #:235 Done on this 3rd day of April, 2020. _________________________ Scott Harris, M.D., M.P.H. State Health Officer
11

Case: 1:20-cv-02782 Document #: 1-18 Filed: 05/07/20 Page 1 of 4 PageID #:236

Case: 1:20-cv-02782 Document #: 1-18 Filed: 05/07/20 Page 2 of 4 PageID #:237

Case: 1:20-cv-02782 Document #: 1-18 Filed: 05/07/20 Page 3 of 4 PageID #:238

Case: 1:20-cv-02782 Document #: 1-18 Filed: 05/07/20 Page 4 of 4 PageID #:239

Case: 1:20-cv-02782 Document #: 1-19 Filed: 05/07/20 Page 1 of 6 PageID #:240
STATE OF CONNECTICUT
BY HIS EXCELLENCY
NED LAMONT
EXECUTIVE ORDER NO. 7N
PROTECTION OF PUBLIC HEALTH AND SAFETY DURING COVID-19 PANDEMIC AND RESPONSE- INCREASED DISTANCING, EXPANDED FAMILY ASSISTANCE,
AND ACADEMIC ASSESSMENT SUSPENSION
WHEREAS, on March I0, 2020, I issued declarations of public health and civil preparedness emergencies, proclaiming a state of emergency throughout the State of Connecticut as a result of the coronavirus disease 2019 (COVID-19) outbreak in the United States and confirmed spread in Connecticut; and
WHEREAS, my Executive Order No. 7, dated March 12, 2020, among other things, prohibited gatherings of 250 people or more for social and recreational activities, including but not limited to, community, civic, leisure, and sp011ing events; parades; conceits; festivals; movie screenings; plays or performances; conventions; and similar activities, and suspended various statutes and regulations to protect public health and safety; and
WHEREAS, my Executive Order No. 7A, dated March 13, 2020, authorized the Commissioner of Public Health to restrict entrance into nursing homes and similar facilities to protect people who are most vulnerable to COVID-19; and
WHEREAS, my Executive Order No. 7B, dated March 14, 2020, among other things, modified in-person open meetings requirements, waived ce11ain rules to mitigate the critical shortage of hand sanitizer and personal protective equipment (PPE), maintain and increase the availability of childcare, and provide for increased healthcare resources and facilities; and
WHEREAS, my Executive Order No. 7C, dated March 15, 2020, among other things, cancelled classes in public schools for at least two weeks, provided for closure and remote conduct of business at Department of Motor Vehicle branches, extended deadlines for municipal budget preparations, and suspended or modified laws and regulations governing health care data and visitation at certain health care and congregate care settings; and
WHEREAS, my Executive Order No. 70, dated March 16, 2020, restricted social and recreational gatherings of all types to fewer than 50 people, closed bars and restaurants to all service except food and non-alcoholic beverage takeout and delive1y, closed gyms, fitness centers and movie theaters, and prohibited on-site operations at off-track betting facilities; and
WHEREAS, my Executive Order No. 7E, dated March 17, 2020, among other things, waived the requirement for an 180-day school year, limited fingerprinting availability to that for critical

Case: 1:20-cv-02782 Document #: 1-19 Filed: 05/07/20 Page 2 of 6 PageID #:241
requirements, extended the duration of various licenses and permits under the authority of the Commissioner of Emergency Services and public protection, and suspended certain requirements for recoupment of overpayment and hearings conducted by the Depmtment of Social Services; and
WHEREAS, my Executive Order No. 7F, dated March 18, 2020, ordered the closure of Large Shopping Malls, the closure ofplaces ofpublic amusement except public parks and open recreation areas, expanded Medicaid telehealth coverage, waived in-person service, hearing, and screening requirements for certain Probate Court proceedings in vulnerable group care settings, and clarified my order cancelling school classes; and
WHEREAS, my Executive Order No. 70, dated March 19, 2020, ordered the postponement of the presidential primary, suspended non-critical court operations, expanded the availability of telehealth services, and enacted additional public health measures; and
WHEREAS, my Executive Order No. 7H, dated March 20, 2020, limited the workplace operations of non-essential businesses, and on-profit, created a process to designate those that are essential, and provided for consistency across the state in governmental response to the COVID19 pandemic; and
WHEREAS, my Executive Order No. 71, dated March 21, 2020, among other things, granted various forms of financial relief to recipients of public health and economic assistance, enacted measures to protect the health of children in the care of the Department of Children and Families, and enacted a series of measures to allow municipalities and their administrative bodies to conduct essential business while reducing the risk of COVID-19 transmission; and
WHEREAS, my Executive Order No. 7J, dated March 22, 2020, among other things, expanded the availability of tempormy retired workers to fill critical staffing needs, provided authority to expedite acquisition and leasing of property to meet emergency response needs, and clarified restrictions on the operations of non-essential businesses; and
WHEREAS, my Executive Order No. 7K, dated March 23, 2020, among other things, suspended non-critical operations of the Probate Comt and the Workers' Compensation Commission, authorized remote notarization, and provided the Commissioner of Public Health with additional authority to expedite the public health response to the COVID-19 pandemic; and
WHEREAS, my Executive Order No. 71, dated March 24, 2020, among other things, extended the cancellation of public school classes through April 20, 2020, opened fishing season early to provide a safe recreational activity during this period of limited availability of other options, provided for continued availability of medical marijuana for patients with debilitating conditions, eased the ability for certain patients to transfer between nursing homes, and provided for increased availability of vital records services; and
WHEREAS, my Executive Order No. 7M, dated March 25, 2020, preserved the rights of the public in ce1tain proceedings under the Connecticut Freedom of Information Act and authorized commissioners of state agencies to suspend or modify administrative deadlines and other requirements of Chapter 54 of the Connecticut General Statutes and other agency-specific administrative requirements; and

Case: 1:20-cv-02782 Document #: 1-19 Filed: 05/07/20 Page 3 of 6 PageID #:242
WHEREAS, COVID-19 is a respiratory disease that spreads easily from person to person and may result in serious illness or death; and
WHEREAS, the World Health Organization has declared the COVID-19 outbreak a pandemic; and
WHEREAS, the risk of severe illness and death from COVID-19 appears to be higher for individuals who are 60 years of age or older and for those who have chronic health conditions; and
WHEREAS, to reduce spread ofCOVID-19, the United States Centers for Disease Control and Prevention and the Connecticut Department of Public Health recommend implementation of community mitigation strategies to increase containment of the virus and to slow transmission of the virus, including cancellation of gatherings of ten people or more and social distancing in smaller gatherings; and
WHEREAS, confirmed COVID-19 infections and resulting hospitalizations have increased significantly in recent days, at the same time that residents of areas with high infection rates have arrived in Connecticut, creating a need to enact further mandato1y distancing measures to limit the rate of spread of the disease; and
WHEREAS, Public Act 19-117, codified as Section 22a-246a of the 2020 Supplement to the Connecticut General Statutes, in order to reduce waste and litter and their resulting harm to the quality of the environment and waters of the State of Connecticut and associated environmental costs, imposed a 10-cent-per-bag tax on single-use plastic checkout bags at various retail and other establishments; and
WHEREAS, while the Connecticut Department of Public Health has examined this issue and found that existing precautions, including frequent handwashing for at least 20 seconds or use of alcohol based sanitizer, avoiding touching the face with unwashed hands, and routine cleaning of public spaces and frequently handled items will greatly reduce the risk of COVID-19 transmission for workers in high volume retail settings, many employees ofretail establishments have expressed concern about the handling of such bags; and
WHEREAS, retail and especially grocery and restaurant workers are making a critical contribution to keeping food readily available to the public during this public health and civil preparedness emergency, their continued contribution is essential to the state's ability to enact appropriate distancing measures, and their concerns are respected; and
WHEREAS, Connecticut law mandates annual statewide assessments to measure student achievement and to determine school accountability, in addition to the federal testing requirements which were waived by the U.S. Department of Education on March 20, 2020 for the full state; and
WHEREAS, in light of the major disruption caused by the cancellation of classes statewide in Connecticut, on March 20, 2020, the Connecticut State Depmtment of Education secured a federal waiver for the 2019-20 school year from (i) all state-mandated assessments in all grades and subjects; and (ii) district/school accountability measures under the Eve1y Student Succeeds Act; and

Case: 1:20-cv-02782 Document #: 1-19 Filed: 05/07/20 Page 4 of 6 PageID #:243
WHEREAS, demand for firearms and ammunition since the declaration of this public health and civil preparedness emergency has increased dramatically, for example with 19,943 firearms purchase or transfer authorizations completed in March 2020 so far compared to 12,572 in all of March 2019, resulting in difficulty for dealers in transmitting authorization requests, larger than normal lines and crowds, and significant burdens on the staff and systems who process such requests, compromising their ability to process the requests and perform other critical emergency services and public safety duties; and
WHEREAS, upon a proclamation that a civil preparedness emergency exists, section 28-9(b) of the Connecticut General Statutes authorizes the modification or suspension in whole or in part by executive order of any statute or regulation or requirement or part thereof that conflicts with the efficient and expeditious execution of civil preparedness functions or the protection of public health;
NOW, THEREFORE, I, NED LAMONT, Governor of the State of Connecticut, by virtue of the authority vested in me by the Constitution and the laws of the State of Connecticut, do hereby ORDER AND DIRECT:
I. Restriction of Social and Recreational Gatherings to No More Than 5 People. Effective immediately, and through April 30, 2020, unless earlier modified, extended, or terminated by me, the prior order set forth in Executive Order No. 7D, prohibiting social and recreational gatherings of 50 people or more, is hereby amended and modified to require that all such gatherings of six (6) or more people, including but not limited to, community, civic, leisure, or sporting events; parades; conceits; festivals; plays or live performances; conventions; and similar activities, are prohibited throughout the State of Connecticut, except that religious, spiritual or worship gatherings shall not be subject to such increased restrictions, and shall instead remain subject to the prohibition on gatherings of 50 or more people, provided that they employ reasonable and appropriate distancing measures. To further clarify this order, it does not apply to government operations, private workplaces, retail establishments, or other activities that are not social or recreational gatherings.
2. Restrictions on Restaurant Payment and Pickup Operations. Where reasonably practicable, restaurants, eating establishments, and any bars that remain open for sales of food for off-premise consumption, shall limit entrance of customers into their locations to the minimum extent necessary to pick up and/or pay for orders, use touchless payment systems, and require remote ordering and payment, whether by telephone, computer, mobile application, or other technology. Nothing in this order shall require any such business to acquire or use ordering or payment technology that they do not already possess, prohibit drive-through ordering and pickup, or prohibit in-person payment or cash payment where there is no reasonable alternative. Previously issued guidance for hospital and business cafeterias remains in effect.

Case: 1:20-cv-02782 Document #: 1-19 Filed: 05/07/20 Page 5 of 6 PageID #:244
3. Further Restrictions on Retail Operations. Any retail establishment that has been allowed to remain open and permit customers inside such establishment during this public health and civil preparedness emergency shall take appropriate and reasonable measures to ensure customers maintain six feet of distance between each other, and to manage any resulting lines to maintain such distance while people are waiting to enter, and where reasonably practical, employ touchless payment technology if they already have such technology available.
a. Firearms Transactions by Appointment Only. Effective immediately and through May 15, 2020, unless earlier modified, extended, or terminated by me, because the nature of certain regulated retail transactions, including purchase, sale, and transfer of firearms, ammunition, and their components or supplies, requires the customer's presence inside the business to accommodate certain parts of those transactions or associated background check processes, and in order to limit person-to-person contact as much as possible and manage the large increase in requests for authorizations for such transactions and the resulting burdens on the communications technology and public safety staff responsible for reviewing and providing such authorizations, any firearms dealer shall conduct all such transactions by appointment only, shall limit such appointments to a number that will maintain a distance of six feet between any customers and/or staff in a store, including customers and staff conducting such transactions, and shall allow entrance into their establishments only to those customers conducting such transactions.
4. Temporary Suspension of Tax on Single-Use Checkout Bags. All provisions of Section 355 of Public Act 19-117, as codified in Section 22a246a of the 2020 Supplement to the Connecticut General Statutes, regarding single-use plastic checkout bags, are temporarily suspended through May 15, 2020, unless earlier modified, extended, or terminated by me. The Commisioner of Revenue Services shall issue any implementing order he deems necessmy, and any guidance for businesses on accounting or other necessmy measures during this temporary suspension.
5. Employees Not Required to Bag Items in Reusable Bags. Effective immediately and through May 15, 2020, unless earlier modified, extended, or terminated by me, no employer in a retail establishment shall require any employee to bag any item in a customer-provided reusable bag, provided that nothing in this order shall prohibit customers who wish to use such reusable

Case: 1:20-cv-02782 Document #: 1-19 Filed: 05/07/20 Page 6 of 6 PageID #:245
bags from doing so; such customers shall bag their own items where the employee of the retail establishment declines to do so.
6. Suspension of 21-month Limit on Temporary Family Assistance. Section 17b-l 12 of the Co1mecticut General Statutes and any implementing regulations are modified to exclude from the statutory 21-month time limit on receipt of Tempora1y Family Assistance all months of such assistance received during the public health and civil preparedness emergency.
7. Suspension of School Testing Assessments for 2019-20 School Year. The provisions ofSection 10-14n of the Co1U1ecticut General Statutes related to the administration of all state summative and alternate assessments; Section 1014t, related to the administration of universal screening reading assessment for students in Grades K-3; and Section 10-265g, related to the administration of reading assessments in priority districts at the end of the school year, are hereby suspended for the 2019-20 school year. Any associated regulations, rules, and policies regarding statewide assessments are modified to authorize the Commissioner of Education to temporarily waive any requirements contained therein as he deems necessary to respond to the effects of the COVID-19 pandemic.
Unless otherwise specified herein, this order shall take effect immediately and shall remain in effect for the duration of the public health and civil preparedness emergency, unless earlier modified or terminated by me.
Dated at Hartford, Co1U1ecticut, this 26th day of March, 2020.
Ned Lamont Governor

:tt:c;~m;~

(

Denise W. Merrill Secretaiy of the State

Case: 1:20-cv-02782 Document #: 1-20 Filed: 05/07/20 Page 1 of 3 PageID #:246

Guidance for Houses of Worship During the COVID-19 Crisis
During these challenging times, government and faith communities throughout Texas need to work together to love our neighbors and slow the spread of Coronavirus. To facilitate this collaboration, State and local governments must clearly articulate their directives aimed at mitigating spread of the virus. This updated joint guidance from the Office of the Attorney General and the Office of the Governor is the official guidance regarding the effect of Executive Order GA 16 on religious services conducted in churches, congregations, and houses of worship.
The government must give special consideration to houses of worship when issuing orders related to the COVID-19 crisis.
The First Amendment to the United States Constitution and Article I of the Texas Constitution protect the right of Texans to worship and freely exercise their religion according to the dictates of their own consciences. In addition, the Texas Religious Freedom Restoration Act (“RFRA”) provides additional protections to faith communities, and government must ensure that it complies with RFRA when it acts, even during a disaster. Thus, when state or local governments issue orders prohibiting people from providing or obtaining certain services, they must ensure that these orders do not violate these constitutional and statutory rights.
Houses of worship provide “essential services.”
By executive order, Governor Abbott has defined essential services to include “religious services conducted in churches, congregations, and houses of worship.”1 Institutions providing these essential services can provide them under certain conditions described in Executive Order GA 16 and local orders by counties or municipalities that are consistent with GA 16. To the extent there is conflict between the Governor’s Executive Order GA 16 and local orders, GA 16 controls. Local governments may not order houses of worship to close.
Houses of worship should conduct as many activities as possible remotely, and should follow federal guidelines when providing services in person.
Houses of worship should conduct as many of their activities as possible remotely. Services that houses of worship cannot conduct remotely should be conducted in accordance with guidance from the White House and the Centers for Disease Control and Prevention (“CDC”).2 For example:

1 Exec. Order No. GA 16 at 3 (Apr. 17, 2020); see also Exec. Order No. GA 14 at 2 (Mar. 31, 2020) (superseded by GA 16). 2 Ctr. for Disease Control, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) (Apr. 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/

1

April 21, 2020

Case: 1:20-cv-02782 Document #: 1-20 Filed: 05/07/20 Page 2 of 3 PageID #:247

• Instruct sick employees, volunteers, and guests to stay home; • Practice social distancing by maintaining appropriate distance between people; • Maintain good hygiene by washing your hands frequently, using hand
sanitizer, using your elbow to cover coughs, and not touching your face; • Implement environmental cleanliness and sanitization practices; and • Clean and disinfect work areas frequently. Houses of worship, like providers of other essential services, are to follow additional guidance from the White House and CDC whenever possible.3
Houses of worship should help slow the spread of the virus.
Texas is a big state and the transmission rate of COVID-19 varies in different communities. Texans also have big hearts and should love their neighbors by evaluating the rate of local community spread to determine the appropriate level of mitigation strategies to implement.4 Houses of worship play an important role in this effort, and can use their creativity to help slow the spread of the virus. For example, a church could hold “drive-in” style services. Or because Executive Order GA 16 permits drive-thrus to provide goods and services, a house of worship may, according to their faith practices, provide communion or a blessing through a similar drive-up service.
When conducting services, houses of worship may consider implementing the following practices:
• Encourage all attendees who are 65 and above to stay home and watch the services online, or provide a “senior service” exclusively for attendees 65 and above to attend in person.
• Ask all attendees who have an underlying at-risk health condition to stay home and watch the services online.
• Equip ushers and greeters with gloves and masks. • Consider keeping child care closed, unless the house of worship can comply
with CDC guidelines for child care facilities.5

community/guidance-business-response.html; Tex. Dep’t of State Health Servs., Prevention of COVID19 (Apr. 17. 2020), https://www.dshs.texas.gov/coronavirus/#prevent; The President’s Coronavirus Guidelines for America, 30 Days to Slow the Spread (Mar. 31, 2020), https://www.whitehouse.gov/wpcontent/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf. 3 CDC: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. Texas DSHS: https://www.dshs.texas.gov/coronavirus/#prevent. 4 CDC, People Who Are at Higher Risk for Severe Illness (Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html; see also CDC, Interim Guidance for Administrators and Leaders of Community- and Faith-Based Organizations to Plan, Prepare, and Respond to Coronavirus Disease 2019 (COVID-19) (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/guidance-communityfaith-organizations.html. 5 CDC, Guidance for Childcare Programs that Remain Open (Apr. 12, 2020), https:// www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/guidance-for-childcare.html.

2

April 21, 2020

Case: 1:20-cv-02782 Document #: 1-20 Filed: 05/07/20 Page 3 of 3 PageID #:248
• Ensure all attendees sanitize their hands and put on a mask before entering the building.
• Ensure attendees sit with their family unit, use social distancing between each unit, and, if necessary, add more service times to facilitate distancing.
• Clergy should dismiss attendees by family unit, maintaining social distancing. • Staff should sanitize seats and frequently touched surfaces between services. • Consider refraining from passing collection plates and instead provide a
central collection box in the building or encourage online giving. • Consider how the sacraments can be administered without attendees having
to touch the same surfaces and objects.
These guidelines do not violate the religious liberty of houses of worship.
Under the extraordinary circumstances in which we temporarily live, these guidelines provide that houses of worship may remain open. The guidelines make only recommendations to houses of worship. They do not violate the religious liberty of houses of worship because the government has a compelling interest in recommending this guidance (stopping contagion) and the guidance is the least restrictive means of serving that compelling interest (allowing houses of worship to stay open for ministry, but suggesting ways that help slow the spread of COVID-19).

3

April 21, 2020

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 1 of 14 PageID #:249

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 2 of 14 PageID #:250

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 3 of 14 PageID #:251

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 4 of 14 PageID #:252

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 5 of 14 PageID #:253

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 6 of 14 PageID #:254

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 7 of 14 PageID #:255

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 8 of 14 PageID #:256

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 9 of 14 PageID #:257

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 10 of 14 PageID #:258

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 11 of 14 PageID #:259

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 12 of 14 PageID #:260

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 13 of 14 PageID #:261

Case: 1:20-cv-02782 Document #: 1-21 Filed: 05/07/20 Page 14 of 14 PageID #:262

Case: 1:20-cv-02782 Document #: 1-22 Filed: 05/07/20 Page 1 of 3 PageID #:263

FLORIDA OFFICE:
PO Box 540774 Orlando, FL 32854 Tel 407-875-1776 Fax 407-875-0770 www.LC.org

DISTRICT OF COLUMBIA OFFICE: 122 C Street NW, Ste 360
Washington, DC 20001 Tel 202-289-1776 Fax 407-875-0770
REPLY TO FLORIDA
May 7, 2020

VIRGINIA OFFICE:
PO Box 11108 Lynchburg, VA 24506
Tel 407-875-1776 Fax 407-875-0770
Liberty@LC.org

Via E-Mail and Facsimile - (217) 524-4049 The Honorable Jay Robert “J.B.” Pritzker Office of the Governor 207 State House Springfield, IL 62706 Email via Lt. Gov. Juliana Stratton: LtGovStratton@illinois.gov

RE: Church Meeting Ban Enforcement

Dear Governor Pritzker:

Liberty Counsel is a national non-profit litigation, education, and public policy organization with an emphasis on First Amendment liberties. Liberty Counsel represents numerous Illinois pastors and churches which desire to meet, while practicing social distancing guidelines and sanitary measures recommended by the Centers for Disease Control (“CDC”), with more than 10 people in attendance.

I am requesting written confirmation by 3:00 PM TODAY, May 7, 2020, that the “gathering orders” detailed below prohibiting churches from meetings of more than 10 people have been rescinded. If I do not receive this response, Liberty Counsel will take additional action on behalf of the pastors and churches.

Illinois officials are unconstitutionally enforcing and applying the various COVID-19 Executive Orders and other enforcement directives (collectively “GATHERING ORDERS”) purporting to prohibit our clients, on pain of criminal sanctions, from gathering for worship services at our clients’ churches, regardless of whether they meet or exceed the social distancing and hygiene guidelines pursuant to which the State disparately and discriminatorily allows so-called “essential” commercial and non-religious entities (e.g., liquor stores, cannabis stores, warehouse clubs, ‘big box’ and ‘supercenter’ stores) to accommodate gatherings of more than 10 people without scrutiny or threat of criminal sanctions.

The GATHERING ORDERS have been interpreted, applied, and enforced against our clients, as the Illinois State Police have threatened to impose criminal sanctions against religious gatherings that include more than 10 people, regardless of whether government-recommended social distancing and hygiene recommendations are practiced.

ChurcCh Maseeetin:g1B:a2n 0En-fcorvce-m0e2nt782 Document #: 1-22 Filed: 05/07/20 Page 2 of 3 PageID #:264
May 7, 2020 Page 2
At around the same time as Governor Pritzker’s Executive Orders surrounding COVID-19 were being used to threaten criminal sanctions on our client pastors and churches, and their members/attendees, officials in other jurisdictions had similarly threatened to impose criminal sanctions on other religious gatherings.
In Louisville, Kentucky, for example, the government threatened to use police to impose criminal sanctions on those individuals found in violation of similar COVID-19 orders. The United States District Court for the Western District of Kentucky found that the mere threat of such criminal sanctions warranted a TRO. See On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-cv-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020) [hereinafter On Fire]. The On Fire TRO enjoined the Mayor of Louisville from “enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with any prohibition on drive-in church services at On Fire.” Id. at *1 (emphasis added).
Additionally, the Governor of Kansas had imposed a virtually identical restriction on religious gatherings in Kansas, stating that “gatherings” of more than 10 individuals are prohibited, including religious gatherings. On April 18, 2020, the United States District for the District of Kansas issued a TRO enjoining Kansas officials from enforcing its discriminatory prohibition on religious gatherings and required the government to treat “religious” gatherings (worship services) the same as other similar gatherings that are permitted. See First Baptist Church. v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, *6–7 (D. Kan. Apr. 18, 2020) [hereinafter First Baptist].
The First Baptist TRO specifically stated that the government’s disparate treatment of religious gatherings was a violation of the Free Exercise Clause because it showed that “religious activities were specifically targeted for more onerous restrictions than comparable secular activities,” and that the churches had shown irreparable harm because they would “be prevented from gathering for worship at their churches” during the pendency of the executive order. Id. at *7–8 (emphasis added). In discussing the Kansas orders—which imposed a 10-person limit on in-person gatherings just as Governor Pritzker orders here—the court said that specifically singling out religious gatherings for disparate treatment while permitting other non-religious activities “show[s] that these executive orders expressly target religious gatherings on a broad scale and are, therefore, not facially neutral,” First Baptist, 2020 WL 1910021, at *7. Much like here, “churches and religious activities appear to have been singled out among essential functions for stricter treatment. It appears to be the only essential function whose core purpose—association for the purpose of worship—had been basically eliminated.” Id. (emphasis added). Thus, the court found that Kansas should be enjoined from enforcing their disparate terms against churches.
Additionally, the Sixth Circuit Court of Appeals has issued an Emergency Injunction Pending Appeal prohibiting the Governor from enforcing similar prohibitions on religious worship services. See Maryville Baptist Church, Inc. v. Beshear, -- F.3d --, No. 20-5427, 2020 WL 2111316 (6th Cir. May 2, 2020). In that appeal, challenging orders similar to Governor Pritzker’s orders here, the Sixth Circuit held that “[t]he Governor’s actions substantially burden the congregants’ sincerely held religious practices—and plainly so. . . . Orders prohibiting religious gatherings, enforced by police officers telling congregants they violated a criminal law and by officers taking down license plate numbers, amount to a significant burden on worship gatherings.” 2020 WL 2111316, at *2 (emphasis added). Additionally, “[t]he way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches.” Id. “Outright bans on religious activity alone obviously count. So do general bans that cover religious

ChurcCh Maseeetin:g1B:a2n 0En-fcorvce-m0e2nt782 Document #: 1-22 Filed: 05/07/20 Page 3 of 3 PageID #:265
May 7, 2020 Page 3
activity when there are exceptions for comparable secular activities.” Id., at *3. In discussing the prohibitions on religious gatherings, the Sixth Circuit posed several questions of equal import here:
Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.
Id., at *4 (emphasis added).
Here, Governor Pritzker’s prohibition on religious gatherings substantially burden our clients’ sincerely held religious beliefs, and are not the least restrictive means. The orders are depriving our clients and other similarly situated Illinois citizens of rights secured by the United States Constitution, including the First and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. § 1983.
In times of national crisis, such as the current uncertainty arising from COVID-19, “the fog of public excitement obscures the ancient landmarks set up in our Bill of Rights.” American Communist Ass’n, C.I.O. v. Douds, 339 U.S. 382, 453 (1950) (Black, J., dissenting). But, where the fog of public excitement is at its apex, “the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly.” De Jonge v. Oregon, 299 U.S. 353, 365 (1937). Without doubt, “[t]herein lies the security of the Republic, the very foundation of constitutional government.” Id.
For these reasons, demand is hereby made for a written response by 3:00 P.M. TODAY on May 7, 2020, with confirmation that the ban embodied in the COVID-19 Executive Orders prohibiting religious gatherings of more than 10 people has been rescinded.
If I do not receive these respective confirmations by the time requested, Liberty Counsel will take additional action to prevent irreparable harm to the rights of our clients.
Thank you for your attention to this matter. .
Sincerely,

Richard L. Mast† CC: Via Email: Ann Spillane General Counsel, Office of the Governor
Kwame Raoul, Attorney General

aspillane@gc.state.il.us kraoul@atg.state.il.us

† Licensed in Virginia

 
 Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 1 of 36 PageID #:271

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
Eastern Division

ELIM ROMANIAN PENTECOSTAL CHURCH, )

and LOGOS BAPTIST MINISTRIES,

)

)

Plaintiffs,

)

)

v.

)

)

JAY ROBERT PRITZKER, in his official capacity )

as Governor of the State of Illinois,

)

)

Defendant.

)

Case No. 1:20-cv-02782

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

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 2 of 36 PageID #:272
TABLE OF CONTENTS TABLE OF CONTENTS………………………………………………………………………….ii TABLE OF AUTHORITIES……………………………………………………………………..iv URGENICES JUSTIFIYING TEMPORARY RESTRAINING ORDER………………………...1 LEGAL ARGUMENT…………………………………………………………………………….5 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
CLAIM THAT THE GATHERING ORDERS ARE UNCONSTITUTIONAL AND SHOULD BE RESTRAINED………………………………………………………6 A. The GATHERING ORDERS Violate Plaintiffs’ First Amendment Rights
to Free Exercise of Religion and Should Be Restrained…………………………..6 1. Burdens on sincerely held religious beliefs are subject to strict
scrutiny if neither neutral nor generally applicable………………………..7 2. The GATHERING ORDERS are not neutral or generally applicable……..7
a. The GATHERING ORDERS are not neutral……………………...7 b. The GATHERING ORDERS are not generally applicable………10 B. The GATHERING ORDERS Violate Plaintiffs’ First Amendment Rights to Be Free From Government Hostility and Disparate Treatment Under the Establishment Clause…………………………………………………………….11 C. The GATHERING ORDERS Restrict Plaintiffs’ First Amendments Rights to Speech and Assembly and Should Be Restrained……………………………..14 1. The GATHERING ORDERS discriminate against Plaintiffs’ speech rights and rights to assemble on the basis of content…………………….14 2. The GATHERING ORDERS are an unconstitutional prior restraint……..16 3. The GATHERING ORDERS unconstitutionally vest unbridled discretion in the hands of State officials……………………………….…17 D. The GATHERING ORDERS Violate the Illinois Religious Freedom Restoration Act…………………………………………………………………...19 1. The exercise of Plaintiffs’ religion requires them not to forsake the assembling of themselves together……………………………………….19
ii

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 3 of 36 PageID #:273
2. The GATHERING ORDERS substantially burden Plaintiffs’ exercise of religion……………………………………………………….19
E. The GATHERING ORDERS Cannot Withstand Strict Scrutiny………………...20 1. The GATHERING ORDERS’ discriminatory treatment of “religious” gatherings is not supported by a compelling interest…………21 2. The State cannot satisfy its burden of proving narrow tailoring because the GATHERING ORDERS are not the least restrictive means…22 a. The State bears the burden of demonstrating narrow tailoring and least restrictive means………………………………………..23 b. The State cannot demonstrate that it seriously considered less speech restrictive alternatives and ruled them out for good reason………………………………………………………23 c. The numerous other COVID-19 orders specifically exempting religious gatherings or treating them equally to non-religious gatherings demonstrates less restrictive and non-discriminatory alternatives exist…………………………….25
II. PLAINTIFFS HAS SUFFERED, IS SUFFERING, AND WILL CONTINUE TO SUFFER IRREPARABLE INJURY ABSENT A TRO AND PI………………………..27
III. PLAINTIFFS HAVE NO ADEQUATE REMEDY AT LAW TO PROTECT THEIR CHERISHED CONSTITUTIONAL LIBERTIES………………………………28
IV. THE BALANCE OF THE EQUITIES TIPS DECIDEDLY IN PLAINTIFFS’ FAVOR…………………………………………………………………………………..29
IV. THE PUBLIC INTEREST WARRANTS A TRO AND PI………………………………29 CONCLUSION…………………………………………………………………………………..30
iii

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 4 of 36 PageID #:274
TABLE OF AUTHORITIES ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012)………………………………………..28, 29 ACLU of Ill. v. White, 2009 WL 5166231 (N.D. Ill. Dec. 23, 2009)………………………………15 Ashcroft v. ACLU, 542 U.S. 656 (2004)………………………………………………………22, 23 Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012)………………………………………………….28 Bantham Books, Inc. v. Sullivan, 372 U.S. 58 (1963)……………………………………………..16 Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987)……………………………27 Boos v. Berry, 485 U.S. 312 (1988)………………………………………………………………22 Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016)…………………………………………24 Burson v. Freeman, 504 U.S. 191 (1992)………………………………………………………...20 Butler v. Michigan, 352 U.S. 380 (1957)…………………………………………………………25 Carroll v. President & Comm’r Princess Anne, et al., 393 U.S. 175 (1968)…………………….16 Cassell v. Snyder, No. 20 C 50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020)……….…….passim Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)………..…..passim Christian Legal Soc’y v. Walker, 453 F.3d 853 (7th Cir. 2006)………………………………….27 City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988)…………………………….17 Civil Liberties for Urban Believers v. Chicago, 342 F.3d 752 (7th Cir. 2003)…………………..20 Culp v. Madigan, 840 F.3d 400 (7th Cir. 2016)……………………………………………………5 Deida v. City of Milwaukee, 176 F. Supp. 2d 859 (E.D. Wis. 2001)……………………………..20 Elrod v. Burns, 427 U.S. 347 (1976)……………………………………………………………..28 Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011)……………………………………………5 First Baptist Church. v. Kelly, No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020)…………………………………………………passim Flower Cab Co. v. Petitte, 685 F.2d 192 (7th Cir. 1982)………………………………………….28
iv

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 5 of 36 PageID #:275
Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992)……………...…………….16, 17, 18 Gillette v. United States, 401 U.S. 437 (1971)……………………………………………………12 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)…………….23 H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir. 2009)………………………..15 Horton v. City of St. Augustine, 272 F.3d 1318 (11th Cir. 2001)…………………………………16 Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018)…………21 Joelner v. Vill. Of Washington Park, 378 F.3d 613 (7th Cir. 2004)…………………………passim Koger v. Bryan, 523 F.3dd 789 (7th Cir. 2008)…………………………………………………..20 Landmark Commc’ns, Inc. v. Illinois, 435 U.S. 829 (1978)………………………………………21 Lovell v. City of Griffin, 303 U.S. 444 (1938)……………………………………………………16 Lund v. Rowan Cnty., 863 F.3d 268 (4th Cir. 2017)………………………………………………12 Lynch v. Donnelly, 465 U.S. 668 (1984)………………………………………………………….12 Maryville Baptist Church, Inc. v. Beshear, -- F.3d --, No. 20-5427, 2020 WL 2111316 (6th Cir. May 2, 2020)…………………………………………………..passim McCullen v. Coakley, 134 S. Ct. 2518 (2014)…………………………………………………….24 McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005)…………………………………………..12 On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-cv-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020)……………………………………………….passim R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)………………………………………………….25 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)………..………………………………..14, 20, 21 Republican Party of Minn. v. White, 536 U.S. 765 (2002)……………………………………….21 Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115 (1989)……………………………………..25 Saia v. People of State of N.Y., 334 U.S. 558 (1948)…………………………………………….17 Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147 (1939)…..……………..28, 29
v

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 6 of 36 PageID #:276 Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011)…………………………………………………25 Terminiello v. City of Chicago, 337 U.S. 1 (1949)…………………………………………………7 The Florida Star v. B.J.F., 491 U.S. 524 (1989)………………………………………………….22 Thomas v. Rev. Bd. of Ind. Emp. Security Div., 450 U.S. 707 (1981)………………………………6 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994)……………………………………………21 United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000)………………………………..23 United States v. Salerno, 481 U.S. 739 (1987)……………………………………………………17 Ward v. Rock Against Racism, 491 U.S. 781 (1989)……………………………………………..22 Watchtower Bible & Tract Soc’y of N.Y. v. Vill. of Stratton, 536 U.S. 150 (2002) ………………16 Weinberg v. City of Chicago, 310 F.3d 1029 (7th Cir. 2002)….……………………………..17, 18 Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015)…………………………………………….20 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)………………………………………11 Ysura v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009)…………………………………………….20
vi

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 7 of 36 PageID #:277
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Pursuant L. Civ. R. 7.1, Plaintiffs, ELIM ROMANIAN PENTECOSTAL CHURCH, and LOGOS BAPTIST MINISTRIES (“Churches”), by and through counsel, hereby file this Memorandum in Support of Motion for Temporary Restraining Order and Preliminary Injunction, as set forth below and in Plaintiffs’ contemporaneously filed Verified Complaint (ECF 1).
URGENICES JUSTIFIYING TEMPORARY RESTRAINING ORDER In their Prayer for Relief in the Verified Complaint, Plaintiffs seek a temporary restraining order (TRO) and preliminary injunction (PI) restraining and enjoining Governor Pritzker and his designees from unconstitutionally enforcing and applying the various COVID-19 Executive Orders and other enforcement directives (collectively “GATHERING ORDERS”) purporting to prohibit Plaintiffs, on pain of criminal sanctions, from gathering for worship services at Plaintiffs’ churches, regardless of whether Plaintiffs meet or exceed the social distancing and hygiene guidelines pursuant to which the State disparately and discriminatorily allows so-called “essential” commercial and non-religious entities (e.g., liquor stores, cannabis stores, warehouse clubs, ‘big box’ and ‘supercenter’ stores) to accommodate gatherings of more than 10 people without scrutiny or threat of criminal sanctions. As shown in the Verified Complaint, the GATHERING ORDERS have been interpreted, applied, and enforced against Plaintiffs’ churches as the Illinois State Police have threatened to impose criminal sanctions against religious gatherings that include more than 10 people, regardless of whether government-recommended social distancing and hygiene recommendations are practiced. Governor Pritzker has made it clear that churches, such as Plaintiffs, will not be able to hold in-person gatherings of more than 10 people until Phase 4 of his Restore Illinois plan, and that gathering of more than 50 cannot take place until Phase

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 8 of 36 PageID #:278
5—which he has stated may take more than 1 year to achieve, and will only be available if there is some as-yet undeveloped vaccine or treatment widely available.
At around the same time as Governor Pritzker’s Executive Orders surrounding COVID-19 were being used to threaten criminal sanctions on Plaintiffs, their churches, and their congregants, officials in other jurisdictions had similarly threatened to impose criminal sanctions on other religious gatherings. In Louisville, Kentucky, for example, the government threatened to use police to impose criminal sanctions on those individuals found in violation of similar COVID-19 orders. The United States District Court for the Western District of Kentucky found that the mere threat of such criminal sanctions warranted a TRO. See On Fire Christian Ctr., Inc. v. Fischer, No. 3:20cv-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020) [hereinafter On Fire]. The On Fire TRO enjoined the Mayor of Louisville from “enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with any prohibition on drive-in church services at On Fire.” Id. at *1 (emphasis added).
Additionally, the Governor of Kansas had imposed a virtually identical restriction on religious gatherings in Kansas, stating that “gatherings” of more than 10 individuals are prohibited, including religious gatherings. On April 18, 2020, the United States District for the District of Kansas issued a TRO enjoining Kansas officials from enforcing its discriminatory prohibition on religious gatherings and required the government to treat “religious” gatherings (worship services) the same as other similar gatherings that are permitted. See First Baptist Church. v. Kelly, No. 201102-JWB, 2020 WL 1910021, *6–7 (D. Kan. Apr. 18, 2020) [hereinafter First Baptist]. The First Baptist TRO specifically stated that the government’s disparate treatment of religious gatherings was a violation of the Free Exercise Clause because it showed that “religious activities were specifically targeted for more onerous restrictions than comparable secular activities,” and
2

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 9 of 36 PageID #:279
that the churches had shown irreparable harm because they would “be prevented from gathering for worship at their churches” during the pendency of the executive order. Id. at *7–8 (emphasis added). In discussing the Kansas orders—which imposed a 10-person limit on in-person gatherings just as Governor Pritzker’s orders here—the court said that specifically singling out religious gatherings for disparate treatment while permitting other non-religious activities “show[s] that these executive orders expressly target religious gatherings on a broad scale and are, therefore, not facially neutral,” First Baptist, 2020 WL 1910021, at *7. In fact, much like here, “churches and religious activities appear to have been singled out among essential functions for stricter treatment. It appears to be the only essential function whose core purpose—association for the purpose of worship—had been basically eliminated.” Id. (emphasis added). Thus, the court found that Kansas should be enjoined from enforcing their disparate terms against churches.
Additionally, the Sixth Circuit Court of Appeals has issued an emergency injunction pending appeal prohibiting the Kentucky Governor from enforcing similar prohibitions on religious worship services. See Maryville Baptist Church, Inc. v. Beshear, -- F.3d --, No. 20-5427, 2020 WL 2111316 (6th Cir. May 2, 2020). In that appeal, challenging orders similar to Governor Pritzker’s orders here, the Sixth Circuit held that “[t]he Governor’s actions substantially burden the congregants’ sincerely held religious practices—and plainly so. . . . Orders prohibiting religious gatherings, enforced by police officers telling congregants they violated a criminal law and by officers taking down license plate numbers, amount to a significant burden on worship gatherings.” 2020 WL 2111316, at *2 (emphasis added). Additionally, “[t]he way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches.” Id. “Outright bans on religious activity alone obviously count. So do general bans that cover religious activity when there are exceptions for
3

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 10 of 36 PageID #:280
comparable secular activities.” Id., at *3. In discussing the prohibitions on religious gatherings, the Sixth Circuit posed several questions of equal import here:
Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one. Id., at *4 (emphasis added). Because the prohibition on religious gatherings substantially burdened Maryville Baptist’s sincerely held religious beliefs and was not the least restrictive means, the Sixth Circuit concluded the plaintiff church and pastor were likely to succeed on the merits of their free exercise and state RFRA claims as to both in-person and drive-in services, and were being irreparably harmed as to both. Id., at *2–3, 4. Balancing the remaining injunction factors, the court issued an injunction pending appeal enjoining the Governor of Kentucky from enforcing his unconstitutional orders against drive-in services, and directed the district court to prioritize consideration of enjoining inperson services, with the admonition, “The breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom.” Id., at *5 Plaintiffs, their pastors, and their congregants have also been threatened with criminal sanctions and penalties if, at any time, a mere 11 individuals gathered together for in-person worship services at Plaintiffs’ churches, and regardless of whether social distancing and personal hygiene practices were followed. Indeed, Plaintiffs are threatened with becoming criminals for merely having 11 people at church. Because of the government threat of criminal sanctions, Plaintiffs were forced not to host services on Easter Sunday, the most treasured day in Christianity. Absent emergency relief from this Court, Plaintiffs, their pastors, and all congregants will
4

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 11 of 36 PageID #:281
suffer immediate and irreparable injury from the threat of criminal prosecution for the mere act of engaging in the free exercise of religion and going to church. A temporary restraining should issue.
Plaintiffs pray unto this Court to issue a TRO restraining and enjoining Governor Pritzker from similarly enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with any prohibition on religious gatherings of more than 10 people, as against Plaintiffs. Plaintiffs do not seek, at this emergent stage, to undermine the entirety of Governor Pritzker’s efforts to prevent the spread of COVID-19 in the State. Plaintiffs merely seek to be free from the unconstitutional application of the GATHERING ORDERS in such a way that they are threatened with criminal sanctions and suffer criminal penalties for simply going to church. Absent emergency relief from this Court, Governor Pritzker and the State Police will continue to threaten Plaintiffs with criminal sanctions and other penalties, including this Sunday, by targeting Plaintiffs’ religious gatherings for discriminatory treatment.
LEGAL ARGUMENT To obtain a PI, a plaintiff must show that it has “(1) no adequate remedy at law and will suffer irreparable harm if the preliminary injunction is denied and (2) some likelihood of success on the merits.” Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). Once a plaintiff has demonstrated these factors, “the district court then must balance the harms that both parties would suffer in the event of an adverse decision” and “consider the public interest in granting or denying an injunction and weigh the threshold factors against each other.” Culp v. Madigan, 840 F.3d 400, 405 (7th Cir. 2016). Under this test, “the ‘sliding-scale’ nature of the preliminary injunction inquiry means that the plaintiffs’ precise chances of success on the merits are highly relevant to whether an injunction should issue.” Id. Where, as here, “a party seeks a preliminary injunction on the basis of a potential First Amendment violation, the likelihood of success on the merits will often be the
5

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 12 of 36 PageID #:282
determining factor.” Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004). “[T]he standards for granting a TRO and a preliminary injunction are functionally identical.” Crue v. Aiken, 137 F. Supp. 2d 1076, 1082-83 (C.D. Ill. 2001). Plaintiffs easily satisfy these factors both factually and legally, and the TRO should issue. (Plaintiffs hereby incorporate by reference the allegations of their Verified Complaint, filed contemporaneously herewith, as their statement of facts in support of this motion.) I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIM
THAT THE GATHERING ORDERS ARE UNCONSTITUTIONAL AND SHOULD BE RESTRAINED. A. The GATHERING ORDERS Violate Plaintiffs’ First Amendment Rights to
Free Exercise of Religion and Should Be Restrained. Though the State might not view church attendance as fundamental to the religious beliefs of Plaintiffs, its opinion is irrelevant to the protections afforded to Plaintiffs’ sincerely held religious beliefs. Plaintiffs’ “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merits First Amendment protection.” Thomas v. Rev. Bd. of Ind. Emp. Security Div., 450 U.S. 707, 714 (1981). Indeed, “[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (emphasis added). “The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.” Id. at 543. As the On Fire court just noted, prohibiting Plaintiffs from hosting, and its members from attending, religious services where other nonreligious gatherings are permitted under similar circumstances “violat[es] the Free Exercise Clause beyond all question.” 2020 WL 1820249, at *6 (emphasis added).
6

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 13 of 36 PageID #:283
This Court has recently opined that the exigencies of COVID-19 justify certain restrictions on constitutional liberties. See Cassell v. Snyder, No. 20 C 50153, 2020 WL 2112374, *6 (N.D. Ill. May 3, 2020). But, even in a time of crisis or disease, see Jacobson v. Massachusetts, 197 U.S. 11 (1905), the First Amendment does not evaporate. Indeed, “even under Jacobson, constitutional rights still exist. Among them is the freedom to worship as we choose.” On Fire, 2020 WL 1820249, at *8; see also Terminiello v. City of Chicago, 337 U.S. 1, 27, 31, 38 (1949).
1. Burdens on sincerely held religious beliefs are subject to strict scrutiny if neither neutral nor generally applicable.
As a matter of black letter law, “a law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice.” Lukumi, 508 U.S. at 531. But, as here, “[a] law failing these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest,” id. at 532, and “will survive strict scrutiny only in rare cases.” Id. at 546. The GATHERING ORDERS are neither neutral nor generally applicable.
2. The GATHERING ORDERS are not neutral or generally applicable. a. The GATHERING ORDERS are not neutral.
“Although a law targeting religious beliefs as such is never permissible . . . if the object of the law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.” Lukumi, 508 U.S. at 533. To determine neutrality, courts look to the text of the law “for the minimum requirement of neutrality is that a law not discriminate on its face.” Id. But, “[f]acial neutrality is not determinative. The Free Exercise Clause extends beyond facial discrimination [and] forbids subtle departures from neutrality.” Id. at 534. This is so because, as here, “[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with facial neutrality.” Id. For the First Amendment prohibits hostility that is “masked,
7

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 14 of 36 PageID #:284
as well as overt.” Id. The GATHERING ORDERS are not facially neutral, and even if they were, they represent subtle departures from neutrality by treating Plaintiffs’ religious gatherings of more than 10 individuals differently than similar non-religious gatherings.
The GATHERING ORDERS fail even cursory facial examination. They expressly target “faith-based” gatherings for disparate treatment. (V.Compl. ¶¶ 30, 31, EX. C.) Yet, in the very same text of the GATHERING ORDERS, 23 categories of businesses are exempted from this prohibition, including alcoholic beverage stores, cannabis stores, gas stations, hardware stores, law firms and professional businesses, labor unions, and hotels. (V.Compl. ¶¶ 39, 43, EX. H.) Yet, religious gatherings are not granted such an exemption and must continue to comply with a 10person limit. When the government “has targeted religious worship” for disparate treatment—such as attending religious worship services—while “not prohibit[ing] parking in parking lots more broadly—including, again, the parking lots of liquor stores,” it simply fails the test of neutrality. On Fire, 2020 WL 1820249, at *6. Furthermore, here, as in First Baptist, the “orders begin with a broad prohibition against mass gatherings [but] 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.” 2020 WL 1910021, at *5 (emphasis added). Under such a system of carve-outs for everyone but religious assembly, the GATHERING ORDERS are simply not neutral. Id.
This Court recently opined that the GATHERING ORDERS were not facially discriminatory by imposing more stringent restrictions on religious gatherings of more than 10 people while not imposing that restriction on Walmart and other “supercenter” or “big box” stores. Cassell, 2020 WL 2112374, *9. As this Court contended, “retailers and food manufacturers are
8

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 15 of 36 PageID #:285
not comparable to religious organizations.” Id. But, this is plainly erroneous. Indeed, as the Sixth
Circuit stated:
[R]estrictions inexplicably applied to one group and exempted from another do little to further these goals [“to lessen the spread of the virus or . . . protect the Commonwealth’s citizens”] and do much to burden religious freedom. Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers.
Maryville Baptist, 2020 2111316, at *4 (emphasis added).
This Court’s recent Cassell decision focused on an erroneous contention that “the purpose
of shopping is not to gather with others or engage them in conversation.” 2020 WL 2112374, *9.
But, as the Sixth Circuit articulated, the explanation of religious gatherings as “intentional
worship” or congregating together misses the point entirely. Maryville Baptist, 2020 WL 211316,
*4. Indeed,
[t]he Governor claims, and the district court seemed to think so too, that the explanation for these groups of people to be in the same area—intentional worship—distinguishes them from groups of people in a parking lot or a retail store or an airport or some other place where the orders allow many people to be. We doubt that the reason a group of people go to one place has anything to do with it. Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there. So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another.
Id. (emphasis added).
Governor Pritzker expressly targets churches and churchgoers, threatening criminal
prosecution, and sending State Police to people attending a religious worship service. At the same
time, no similar action is directed towards people in liquor stores, in Walmart, in cannabis stores,
or other stores where the “threat” is equally present. If that is neutral, the term has no meaning.
9

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 16 of 36 PageID #:286
b. The GATHERING ORDERS are not generally applicable. In determining general applicability, the courts focus on disparate treatment of similar conduct. See Lukumi, 508 U.S. at 542. “All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice.” Id. The textbook operation of a law that is not generally applicable is one where “inequality results” from the government’s “decid[ing] that the governmental interests it seeks to advance are worthy of being pursued only against conduct with religious motivation.” Id. at 543 (emphasis added). In Lukumi, the Supreme Court held that a law “fall[s] well below the minimum standard necessary to protect First Amendment rights” when the government “fail[s] to prohibit nonreligious conduct that endangers these interests in a similar or greater degree” than the prohibited religious conduct. Id. (emphasis added). This is precisely the effect of the GATHERING ORDERS. First, they purport to prohibit “all public and private gatherings of any number of people.” (V. Compl. ¶ 39, EX. H.) But, the Governor “benevolently” permits religious gatherings to have 10 people or less while not applying such restrictions to the 23 categories of businesses exempted from such prohibitions. (V.Compl. ¶¶ 39, 42–43, EX. H.) Their text makes it plain that “religious” gatherings of more than 10 people are prohibited, but large numbers of people may gather at grocery stores, alcoholic beverage stores, hardware stores, cannabis stores, gas stations, law firms and professional businesses, labor unions, and hotels, and also at warehouse, supercenter, and ‘big box’ stores combining several categories.. (Id.). Furthermore, unlimited non-religious gatherings at the 23 categories of exempt businesses are permitted for employees and non-customer persons if distancing and hygiene guidelines are followed. (Id.) But “religious” gatherings of 11 people are still prohibited, no matter how large the facility or how long the gathering lasts, even if social distancing, enhanced
10

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 17 of 36 PageID #:287
sanitizing, and personal hygiene guidelines are followed religiously. If large gatherings at liquor stores, warehouse, supercenter, and cannabis stores are not prohibited—and distancing and hygiene practices are only required “to the greatest extent possible”—even though endangering citizens (or not) to an equal degree, then it is obvious “religious” gatherings have been targeted for discriminatory treatment. Such a blatant discriminatory application of the GATHERING ORDERS “falls well below the minimum standard” the First Amendment demands. Lukumi, 508 U.S. at 543. Indeed, as the Sixth Circuit just pointed out—and as is equally true here—
Keep in mind that [Plaintiffs] do not seek to insulate themselves from the [State’s] general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They are not asking to share a chalice. The Governor has offered no good reason so far for refusing to trust congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same. Maryville Baptist, 2020 WL 2111316, *4 (emphasis added); see also On Fire, 2020 WL 1820249, at *6 (holding that government regulation is not generally applicable when it targets religious gatherings with “orders and threats” but does not apply the same orders and threats to similar nonreligious conduct). The GATHERING ORDERS are not generally applicable. B. The GATHERING ORDERS Violate Plaintiffs’ First Amendment Rights to
Be Free From Government Hostility and Disparate Treatment Under the Establishment Clause. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added). Where, as here, Plaintiffs seek to be free from disparate treatment by the State, the very core of the Establishment Clause is at issue. “An attack founded on disparate treatment of “religious” claims invokes what is perhaps the central purpose of the Establishment Clause—the purpose of ensuring governmental
11

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 18 of 36 PageID #:288
neutrality in matters of religion.” Gillette v. United States, 401 U.S. 437, 449 (1971) (emphasis added). Indeed, the Establishment Clause “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility towards any.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984). That prohibition on hostility towards religion is equally present in times of exigent circumstances, such as COVID-19. For, as “[a]n instrument of social peace, the Establishment Clause does not become less so when social rancor runs exceptionally high.” Lund v. Rowan Cnty., 863 F.3d 268, 275 (4th Cir. 2017) (emphasis added).
But, the principle of neutrality requires that the government’s motive in applying disparate treatment to religious gatherings, as opposed to non-religious gatherings of like kind, is not merely a pretext or a sham. See, e.g., McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 864 (2005) (holding that the government’s motive for its actions “has to be genuine, not a sham”); Gonzales v. N. Tp. of Lake Cnty., 4 F.3d 1412, 1419 (7th Cir. 1993) (same). In determining whether the government’s motive represents a sham, courts often look to the progression of the government’s actions. See McCreary, 545 U.S. at 866 (declining to accept the government’s proposition that “the last in a series of government actions” is determinative for whether its actions offend the Establishment Clause). Here, the progression of the State’s actions demonstrates that religious gatherings were “targeted for stricter treatment due to the nature of the activity involved, rather than because such gatherings pose unique health risks that mass gatherings at commercial and other facilities do not,” and “the disparity has been imposed without any apparent explanation for the differing treatment of religious gatherings.” First Baptist, 2020 WL 1910021, at *7.
Indeed, the State started with the general position that “all public and private gatherings [of] 50 or more people” were prohibited, and specifically included “faith-based events” in that prohibition. (V.Compl. ¶¶ 30, 31, EX. C.) But, in the next breath, the Government opened a broad
12

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 19 of 36 PageID #:289
category of exemptions for certain “essential” stores. (V.Compl. ¶ 32.) On March 20, the State enhanced the prohibitions by prohibiting “all public and private gatherings of any number of people.” (V.Compl. ¶ 34, EX. D.) Yet, in same text, the Governor created a massive hole of exemptions for the 23 categories of businesses that need not comply with the restrictions, including grocery stores, alcoholic beverage stores, hardware stores, cannabis stores, gas stations, law firms and professional businesses, labor unions, and hotels, and also including warehouse, supercenter, and ‘big box’ stores combining several categories, so long as they abided by social distancing “to the greatest extent feasible” and “where possible.” (Id.) Then, on April 8, the State made it abundantly clear that it would enforce Governor Pritzker’s GATHERING ORDERS against churches and religious gatherings by having the Illinois State Police release the ISP Enforcement Guidance threatening criminal penalties and sanctions for violation of the GATHERING ORDERS. (V.Compl. ¶¶ 51–54, EX. K.)
Perhaps sensing that arresting pastors, imposing criminal sanctions on them, and hailing them into court for the act of hosting worship was problematic, Governor Pritzker modified his GATHERING ORDERS on April 30, 2020, stating that people may “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.” (V.Compl. ¶¶ 39–41, EX. H.) Yet, the 23 categories of so-called “essential” businesses may continue to operate without a 10-person limit and provided only that—“to the greatest extent feasible” and “when possible”—they adhere to social distancing. (V.Compl. ¶¶ 42–43, EX. H.)
Finally, Governor Pritzker’s Restore Illinois plan, which “can and will be updated” and is “subject to change” at any time and in the Governor’s discretion, only contemplates religious gatherings of more than 10 people in Phase 4, when and if Governor Pritzker determines it is
13

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 20 of 36 PageID #:290
appropriate to permit such gatherings. (V.Compl. ¶¶ 45–49, EX. J.) And, to have religious gatherings of more than 50 people, Plaintiffs’ churches must wait until “a vaccine is developed to prevent additional spread of COVID-19” or “a treatment option is readily available,” which the Governor has indicated can take from 12 to 18 months from now. (V.Compl. ¶¶ 48, 49 EX. J.)
The progression of the State’s actions was a sham at the start and remains unconstitutional even after its “benevolent” instructions for “proper” worship during COVID-19. Its purpose in treating religious gatherings differently from the start was a sham because there is no evidence that religious gatherings “pose unique health risks that mass gatherings at commercial and other facilities do not,” First Baptist, 2020 WL 1910021, at *7, or “because the risks at religious gatherings uniquely cannot be adequately mitigated with safety protocols” such as those at liquor stores, cannabis stores, or other “essential” stores that may continue to operate without the 10person limitation. Id. Thus, treating Plaintiffs and other religious gatherings differently was a sham from the start and remains constitutionally infirm even now. Indeed, the government does not have the authority to, with the stroke of a pen, declare churches and attendance at church to be “non-essential” and impose criminal sanctions on Plaintiffs for failing to abide by that government-imposed prescription of orthodoxy. The Constitution demands more. So, too, should this Court.
C. The GATHERING ORDERS Restrict Plaintiffs’ First Amendments Rights to Speech and Assembly and Should Be Restrained. 1. The GATHERING ORDERS discriminate against Plaintiffs’ speech rights and rights to assemble on the basis of content.
“Content-based laws—those that target speech on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling government interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). “Some facial distinctions based on a message are obvious, defining regulated
14

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 21 of 36 PageID #:291
speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both distinctions are drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.” Id. S. Ct. at 2227 (emphasis added). Put simply, the Supreme Court handed down a firm rule: laws that are content based on their face must satisfy strict scrutiny. Id. Importantly, this firm rule mandating strict scrutiny of facially content-based restrictions of speech applies regardless of the government’s alleged purpose in enacting the law, even if the alleged purpose arises from a time of purported emergency. See id. (“On its face, the [law] is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the [law] to determine whether it is subject to strict scrutiny.”) “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech.” Id.
This Court need look no further than the text of the GATHERING ORDERS to determine that they are content-based restrictions on constitutionally protected liberties. The GATHERING ORDERS purport to prohibit “all public and private gatherings of any number of people,” except a religious gathering of no more than 10 people is permissible. (V.Compl. ¶¶ 39, 41, EX. H.) But, the State found 23 categories of exempted so-called “essential” businesses, including, inter alia, grocery stores, alcoholic beverage stores, cannabis stores, gas stations, hardware stores, law firms and professional businesses, labor unions, and hotels, that are not subject to a 10 person limitation. (V.Compl. ¶¶ 42, 43, EX. H.) Indeed, as this Court has found, a system of exemptions makes it likely that a law is content-based. See ACLU of Ill. v. White, 2009 WL 5166231, *4 (N.D. Ill. Dec. 23, 2009); see also H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 622 (6th Cir. 2009) (holding that a system where some forms of speech are exempted while others are not is content-
15

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 22 of 36 PageID #:292
based and subject to strict scrutiny). The State’s broad swath of exemptions for all but religious gatherings is textbook content discrimination and subject to strict scrutiny.
2. The GATHERING ORDERS are an unconstitutional prior restraint. It is axiomatic that prior restraints are highly suspect and disfavored. See Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992). Indeed, “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantham Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (emphasis added). “Because a censor’s business is to censor, there inheres the danger that he may well be less responsive than a court . . . to the constitutionally protected interests in free expression.” Freedman v. Maryland, 380 U.S. 51, 57-58 (1965). It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. [A] law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition. Watchtower Bible & Tract Soc’y of N.Y. v. Vill. of Stratton, 536 U.S. 150, 165–66 (2002) (emphasis added); see also Lovell v. City of Griffin, 303 U.S. 444, 451–52 (1938) (“While this freedom from previous restraint . . . upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the [First Amendment].”); Carroll v. President & Comm’r Princess Anne, et al., 393 U.S. 175, 181 (1968) (“Prior restraint upon speech suppresses the precise freedom which the First Amendment sought to protect from abridgment.” (emphasis added)). The Supreme Court has consistently permitted facial challenges to prior restraints without requiring a plaintiff to show that there is no conceivable set of facts where the application of the particular government regulation might or would be constitutional. See, e.g., Horton v. City of St.
16

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 23 of 36 PageID #:293
Augustine, 272 F.3d 1318, 1331–32 (11th Cir. 2001) (“the Supreme Court itself in Salerno acknowledged [that prior restraints are the] exception to the ‘unconstitutional-in-everyconceivable-application’ rule”) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987));
While prior restraints are not per se unconstitutional, they “are highly disfavored and presumed invalid.” Weinberg v. City of Chicago, 310 F.3d 1029, 1045 (7th Cir. 2002). One form of a prior restraint that is particularly intolerable is “a procedure that places unbridled discretion in the hands of a government official and might result in censorship.” Id. Here, there is no question the GATHERING ORDERS place unbridled discretion in the hands of the State and its officials.
3. The GATHERING ORDERS unconstitutionally vest unbridled discretion in the hands of State officials.
The danger inherent in the viewpoint discriminatory policies and application here is only increased by the unbridled discretion given to government officials. “When a city allows an official to ban [speech] in his unfettered control, it sanctions a device for suppression of free communication of ideas.” Saia v. People of State of N.Y., 334 U.S. 558, 562 (1948). “[E]ven if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or permit from a government official in that official’s boundless discretion.” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 764 (1988) (emphasis added). The danger of viewpoint discrimination is “at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official.” Id. at 763. “[T]he mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.” Id. at 757. This is precisely why “[t]he First Amendment prohibits the vesting of such unbridled discretion in a government official.” Forsyth Cnty., 505 U.S. at 133 (emphasis added).
17

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 24 of 36 PageID #:294
Binding precedent from the Seventh Circuit also mandates that prior restraints not impermissibly vest government officials with unbridled discretion. See, e.g., Weinberg, 310 F.3d at 1042 (prior restraint particularly intolerable where it vests unbridled discretion in hands of government official). This is so because “[w]e cannot presume that officials will act in good faith and follow standards not explicitly contained in the ordinance.” Id. at 1046 (emphasis added).
Here, the GATHERING ORDERS lack specific and definite checks on the discretion of government authorities. “[T]he success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so.” Forsyth Cnty., 505 U.S. at 133 n.10. Here, the GATHERING ORDERS’ vesting of unbridled discretion is not only unconstitutional because there are no checks on the State, but is even worse because the State has actually exercised its unchecked discretion to prohibit religious gatherings of more than 10 people while not prohibiting similar non-religious gatherings. Nothing in the GATHERING ORDERS limits the authority of State officials to target church services or religious gatherings that are abiding by social distancing and personal hygiene practices while not equally targeting non-religious gatherings doing the same. In fact, that is precisely what the GATHERING ORDERS demand of State officials. Indeed, “the danger of censorship and of abridgement of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975). The GATHERING ORDERS have instituted a total prohibition on “faith-based” gatherings of more than 10 people throughout the entire forum of the State without any standards or objective criteria for why Plaintiffs’ religious gatherings should be treated differently than the
18

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 25 of 36 PageID #:295
gathering of large numbers of people occurring daily at liquor, warehouse, supercenter and cannabis stores. The First Amendment demands more, and so should this Court.
D. The GATHERING ORDERS Violate the Illinois Religious Freedom Restoration Act.
The Illinois Religious Freedom Restoration Act, 775 ILCS § 35/15 (“IRFRA”), prohibits the government from “substantially burden[ing] 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.”
1. The exercise of Plaintiffs’ religion requires them not to forsake the assembling of themselves together.
The exercise of religion under IRFRA means “act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.” 775 ILCS § 35/5. Plaintiffs have adequately demonstrated they have sincerely held religious beliefs, rooted in Scripture’s commands (e.g., Hebrews 10:25), that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis. (V.Compl. ¶¶ 85, 169, 204, 215.) And, as On Fire recognized, “many Christians take comfort and draw strength from Christ’s promise that ‘where two or three are gathered together in My name, there am I in the midst of them.’” 2020 WL 1820249, at *8 (quoting Matthew 18:20). Indeed, “the Greek work translated church . . . literally means assembly.” Id.
2. The GATHERING ORDERS substantially burden Plaintiffs’ exercise of religion.
Binding precedent from the Seventh Circuit has noted that a “substantial burden” under IRFRA exists when the government “necessarily bears direct, primary, and fundamental
19

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 26 of 36 PageID #:296
responsibility for rendering religious exercise effectively impracticable,” Civil Liberties for Urban Believers v. Chicago, 342 F.3d 752, 760-61 (7th Cir. 2003), or when “it puts substantial pressure on an adherent to modify his behavior or violate his beliefs.” Koger v. Bryan, 523 F.3dd 789,799 (7th Cir. 2008). Here, it is beyond cavil that the GATHERING ORDERS impose such a substantial burden on Plaintiffs’ religious beliefs. (V.Compl. ¶ 217 (alleging that the GATHERING ORDERS, substantially burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs in the commands of Scripture and Defendant’s imposed value system)); (id. ¶ 89 (the GATHERING ORDERS put substantial pressure on Plaintiffs’ to violate their sincerely held religious beliefs)).
E. The GATHERING ORDERS Cannot Withstand Strict Scrutiny. Because the GATHERING ORDERS substantially burden Plaintiffs’ sincerely held religious beliefs under the First Amendment and IRFRA, are neither neutral nor generally applicable, and are a content-based restriction on Plaintiffs’ speech and assembly rights (see supra sections I.A–D), there is no question they must survive strict scrutiny. The State is therefore subject to “the most demanding test known to constitutional law.” Deida v. City of Milwaukee, 176 F. Supp. 2d 859, 869 (E.D. Wis. 2001) (quoting City of Boerne v. Flores, 521 U.S. 507, 534 (1997)). In fact, “it is the rare case in which a . . . restriction withstands strict scrutiny.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2236 (Kagan, J., concurring) (quoting Williams-Yulee v. Florida Bar, 575 U.S. 433, 444 (2015)) (emphasis added). See also Burson v. Freeman, 504 U.S. 191, 200 (1992) (“we readily acknowledge that a law rarely survives such scrutiny”); Ysura v. Pocatello Educ. Ass’n, 555 U.S. 353, 366 (2009) (Breyer, J., concurring) (“strict scrutiny” is “a categorization that almost always proves fatal to the law in question”). This is not that rare case.
20

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 27 of 36 PageID #:297
1. The GATHERING ORDERS’ discriminatory treatment of “religious” gatherings is not supported by a compelling interest.
When “[a] speech-restrictive law with widespread impact” is at issue, “the government must shoulder a correspondingly heavier burden and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2472 (2018) (emphasis added). Here, because the GATHERING ORDERS infringe upon Plaintiffs’ First Amendment rights, the government “must do more than simply posit the existence of the disease sought to be cured. It must demonstrate that the recited harms are real, not merely conjectural.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994). This is so because “[d]eference to [the government] cannot limit judicial inquiry when First Amendment rights are at stake.” Landmark Commc’ns, Inc. v. Illinois, 435 U.S. 829, 843 (1978).
To be sure, efforts to contain the spread of a deadly disease are “compelling interests of the highest order.” On Fire, 2020 WL 1820249, at *7. Plaintiffs do not doubt the sincerity of the State’s assertion of such an interest. But where the State permits regular gatherings of more than 10 persons in grocery stores, alcoholic beverage stores, cannabis stores, gas stations, hardware stores, law firms and professional businesses, labor unions, and hotels (V.Compl. ¶ 43, EX. H), while expressly prohibiting Plaintiffs’ “religious” gatherings of like kind, the government’s assertions of a compelling interest are substantially diminished. Put simply, the GATHERING ORDERS “cannot be regarded as protecting an interest of the highest order . . . when [they] leave[] appreciable damage to that supposedly vital interest unprohibited.” Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002) (emphasis added); see also Reed v. Town of Gilbert, 135 S. Ct. 2218, 2232 (2015) (same). Indeed, where—as here—the government creates a large system of 23 categories of exceptions (V. Compl. ¶ 43), the Supreme Court has recognized that such
21

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 28 of 36 PageID #:298
exceptions “can raise ‘doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker.’” Williams-Yulee v. Florida Bar, 575 U.S. 433, 448 (2015) (quoting Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (2011)). The GATHERING ORDERS thus “have every appearance of a prohibition that society is prepared to impose upon [Plaintiffs’ religious gatherings] but not on itself.” The Florida Star v. B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J., concurring). In fact, the GATHERING ORDERS suggest that the State is prepared to accept the risk of gatherings at liquor, warehouse, supercenter, and cannabis stores, but cannot stomach Plaintiffs’ assembly for a church service, even with strict social distancing that is good enough for others when practiced “to the greatest extent possible.” The State cannot permit broad swaths of gatherings, carrying the same (if not greater) risk than that posed by Plaintiffs’ church services, and still claim constitutional compliance. “Such a prohibition does not protect an interest of the highest order.” Id.
2. The State cannot satisfy its burden of proving narrow tailoring because the GATHERING ORDERS are not the least restrictive means.
Plaintiffs “must be deemed likely to prevail unless the government has shown that [Plaintiffs’] proposed less restrictive alternatives are less effective than enforcing the act.” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (emphasis added). Indeed, to prove narrow tailoring, the State is required to demonstrate that there are no less restrictive means capable of achieving its desired result. See, e.g., Boos v. Berry, 485 U.S. 312, 329 (1988) (when content-based restrictions on speech are analyzed under strict scrutiny, an ordinance “is not narrowly tailored [where] a less restrictive alternative is readily available”); Ward v. Rock Against Racism, 491 U.S. 781, 798 n.6 (1989) (noting that under “the most exacting scrutiny” applicable to content-based restrictions on speech, the government must employ the least restrictive alternative to pass narrow tailoring). The State bears the burden of demonstrating narrow tailoring as a matter of law, and that is a burden it
22

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 29 of 36 PageID #:299
simply cannot satisfy here. Less restrictive means are available, and that alone condemns the State’s application of the GATHERING ORDERS to failure under strict scrutiny.
a. The State bears the burden of demonstrating narrow tailoring and least restrictive means.
Even on a motion for TRO or PI, the State unquestionably bears the burden of demonstrating that the GATHERING ORDERS are narrowly tailored. As the Supreme Court has held: “the burdens at the preliminary injunction stage track the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). As such, on a PI motion, the government—not the movant—bears the burden of proof on narrow tailoring, because the government bears that burden at trial. See Ashcroft, 542 U.S. at 665 (on PI motion, “the burden is on the government to prove that the proposed alternatives will not be as effective as the challenged statute.” (emphasis added)).
The State indisputably bears the burden of proving narrow tailoring at trial. See, e.g., United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.”); id. at 2540 (“To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” (emphasis added)). Thus, the State also bears—and falls woefully short of meeting—the burden of proving narrow tailoring here. See Gonzales, 546 U.S. at 429; Ashcroft, 542 U.S. at 665.
b. The State cannot demonstrate that it seriously considered less speech restrictive alternatives and ruled them out for good reason.
The State flunks the narrow tailoring strict scrutiny test for a simple reason. In connection with its narrow tailoring burden, the State must show that it “seriously undertook to address the
23

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 30 of 36 PageID #:300
problem with less intrusive tools readily available to it,” meaning that it “considered different methods that other jurisdictions have found effective.” McCullen v. Coakley, 134 S. Ct. 2518, 2539 (2014) (emphasis added). “To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 2540. Thus, the State “would have to show either that substantially less-restrictive alternatives were tried and failed, or that the alternatives were closely examined and ruled out for good reason.” Bruni v. City of Pittsburgh, 824 F.3d 353, 370 (3d Cir. 2016) (emphasis added).
The State utterly fails this test. The State tried nothing else. It considered nothing else but a complete prohibition. The State jumped straight to a purported ban on “all public and private gatherings of any number of people,” and merely permitted “religious organizations” to have a 10person limit. (V.Compl. ¶¶ 39, 41.) But the State drove a Mack Truck through its prohibition by expansively exempting numerous businesses and non-religious entities, such as liquor, warehouse, supercenter, and cannabis stores, along with numerous other gatherings in its 23 exempt categories. (V.Compl. ¶¶ 42, 43.) The State has not and cannot state why or how gathering with a large number of persons at a warehouse or supercenter store (i.e., browsing, shopping, coughing, sneezing, and touching surfaces, all while moving in the midst of crowds and masses that turn over by the hundreds throughout a day, with distancing and hygiene practiced only “to the greatest extent possible”) is any less “dangerous” to public health than attending a time-limited worship service, where distancing and hygiene are strictly observed, in a space used for no more than a few hours. And, the State is threatening to continue such prohibitions for at least 12 to 18 months, while Plaintiffs’ churches suffer a prohibition on their cherished constitutional liberties. (V.Compl. ¶¶ 45–49, EX. J.) Yet, the State exempted the non-religious gatherings and prohibited
24

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 31 of 36 PageID #:301
Plaintiffs’ church services. Quite simply, the State imposed a draconian religious gathering prohibition “not reasonably restricted to the evil with which it is said to deal.” Butler v. Michigan, 352 U.S. 380, 383 (1957). The State tried nothing else, and for that reason alone, fails the narrow tailoring analysis required under McCullen.
c. The numerous other COVID-19 orders specifically exempting religious gatherings or treating them equally to non-religious gatherings demonstrates less restrictive and non-discriminatory alternatives exist.
Even if the State could substantiate compelling interests for the GATHERING ORDERS’ discriminatory application to religious gatherings of more than ten people, which it cannot, the State could not meet its burden of showing that the GATHERING ORDERS are narrowly tailored. “It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.” Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). There must be a ‘fit between the . . . ends and the means chosen to accomplish those ends.’” Sorrell v. IMS Health, Inc., 564 U.S. 552, 572 (2011). While “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity, government may regulate the area of First Amendment freedoms only with narrow specificity.” Ward, 491 U.S. at 794.
The Supreme Court has clearly established that “[t]he government may not regulate [‘a mode of speech’] based on hostility—or favoritism—towards the underlying message expressed.” R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (internal quotation marks omitted). The GATHERING ORDERS impose discriminatory and disparate treatment on “religious” gatherings that are not applied to similar or larger non-religious gatherings. Where other, content-neutral alternatives exist, such as here, government cannot fulfill its narrow tailoring burden by ignoring those alternatives. See id. at 395 (“The existence of adequate content-neutral alternatives thus undercut significantly any defense of such a statute, casting considerable doubt on the
25

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 32 of 36 PageID #:302
government's protestations that the asserted justification is in fact an accurate description of the purpose and effect of the law.” (internal quotation marks and citation omitted)).
As shown in the Verified Complaint, the State has ignored numerous other, less restrictive means of achieving its purported interest. One option tried successfully in other jurisdictions is to exempt religious gatherings from gathering prohibitions altogether. The States of Arizona, Florida, Indiana, Ohio, and Texas have declared religious gatherings essential activities which may continue, instead of declaring such constitutionally protected activities “non-essential” with a stroke of a pen. (V.Compl. ¶¶ 61–63, 67, 68, EXS. M– P, T, U.) The State has refused to consider or attempt it. Another less restrictive alternative would be to allow churches to continue in-person services provided they agree to maintain adequate social distancing, enhanced sanitizing, and personal hygiene practices, like those allowed at other non-religious gatherings of more than ten individuals. Alabama, Arkansas, and Connecticut have all permitted such an exception for religious gatherings. (V.Compl. ¶¶ 64-66, EXS. Q–S.) Plaintiffs have demonstrated thy already engage in the recommended social distancing, enhanced sanitizing, and personal hygiene practices recognized by the State as sufficient for non-religious gatherings, and have specifically committed to doing so going forward. (V.Compl. ¶¶ 55–59, EX. L.) There is no justification for depriving Plaintiffs of the same benefits afforded to non-religious gatherings that are permissible under the GATHERING ORDERS.
Indeed, as the court in On Fire has already exquisitely stated, the State is unlikely to be able to demonstrate that it deployed the least restrictive means because the GATHERING ORDERS
are “underinclusive” and “overbroad.” They’re underinclusive because they don’t prohibit a host of equally dangerous (or equally harmless) activities that the State has permitted . . . . Those . . . activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor
26

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 33 of 36 PageID #:303
store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is “essential,” so is [church]. 2020 WL 1820249, at *7 (emphasis added) (footnote omitted). Further, as First Baptist held, “where comparable secular gatherings are subjected to much less restrictive conditions” than “the broad prohibition against in-person religious services,” the government is not likely to meet its burden that it deployed the least restrictive means. 2020 WL 1910021, at *8. Put simply, the State’s failure to try other available alternatives that have worked and are working in other jurisdictions across the country demonstrates that it has not and cannot satisfy its burden to demonstrate that its actions are narrowly tailored. It thus fails strict scrutiny, and the TRO and PI are warranted. II. PLAINTIFFS HAS SUFFERED, IS SUFFERING, AND WILL CONTINUE TO SUFFER IRREPARABLE INJURY ABSENT A TRO AND PI. Governments are not empowered to create “First Amendment Free Zones” within their borders, like the State has done here. See, e.g., Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (striking local government’s attempt to prohibit protected expression within a ”First Amendment Free Zone.”); United States v. Stevens, 559 U.S. 460, 470 (2010) (government in not empowered to create First Amendment free zones with respect to certain categories of speech). Saying that Plaintiffs may avoid irreparable injury by simply “watching church services online” or doing “drive-through” or “drive-in” services while foregoing established constitutional rights is simply insufficient under the First Amendment. “[V]iolations of First Amendment rights are presumed to constitute irreparable injury.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006); see also Joelner v. Vill. Of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004) (same). See also 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice
27

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 34 of 36 PageID #:304
& Procedure §2948.1 (2d ed. 1995) (“When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” (emphasis added)).
This is because “[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). Indeed, the High Court “has characterized the freedom of speech and that of the press as fundamental personal rights and liberties.” Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 161 (1939) (citations omitted). As such, denial of such rights represents indisputable irreparable injury. Moreover, “when an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012) (quoting Kikumara v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001)). Thus, demonstrating irreparable injury in this matter “is not difficult. Protecting religious freedom was a vital part of our nation’s founding, and it remains crucial today.” On Fire, 2020 WL 1820249, at *9 (emphasis added). III. PLAINTIFFS HAVE NO ADEQUATE REMEDY AT LAW TO PROTECT THEIR
CHERISHED CONSTITUTIONAL LIBERTIES. When First Amendment rights are at stake, there can be no adequate remedy at law. Indeed, given the unquestionable injury appurtenant to the loss of First Amendment freedoms for even minimal periods of time, “the quantification of injury is difficult and damages are therefore not an adequate remedy.” ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (quoting Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982)). Plaintiffs have plainly alleged significant First Amendment injuries that are immediate, irreparable, and ongoing. (V.Compl. ¶¶ 73–78.) Thus, no adequate remedy at law is sufficient to protect Plaintiffs’ cherished constitutional liberties. Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004) (“money damages
28

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 35 of 36 PageID #:305
are therefore inadequate” when First Amendment rights are at stake). A TRO and injunctive relief are the only mechanism for protecting Plaintiffs’ First Amendment freedoms. IV. THE BALANCE OF THE EQUITIES TIPS DECIDEDLY IN PLAINTIFFS’
FAVOR. An injunction in this matter will protect the very rights the Supreme Court has characterized as “lying at the foundation of a free government of free men.” Schneider v. New Jersey, 308 U.S. 147, 151 (1939). The granting of a TRO and PI enjoining enforcement of the GATHERING ORDERS on Plaintiffs’ worship services will impose no harm on the State. Indeed, the State “is in no way harmed by the issuance of an injunction that prevents the state from enforcing unconstitutional restrictions.” Indeed, “there can be no irreparable harm to [the government] when it is prevented from enforcing an unconstitutional statute because it is always in the public interest to protect First Amendment liberties.” Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004) (internal quotation marks omitted). “Moreover, if the moving party establishes a likelihood of success on the merits, the balance of harms normally favors granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional.” ACLU of Ill. v. Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012). The balance of harms favors injunctive relief. Absent a TRO, Plaintiffs and their congregants “face an impossible choice: skip [church] service[s] in violation of their sincere religious beliefs, or risk arrest, mandatory quarantine, or some other enforcement action for practicing those sincere religious beliefs.” On Fire, 2020 WL 1820249, at *9. The balance of the equities tips decidedly in Plaintiffs’ favor, and the TRO and PI should issue. IV. THE PUBLIC INTEREST WARRANTS A TRO AND PI. “Injunctions protecting First Amendment freedoms are always in the public interest.” ACLU of Ill. v. Alvarez, 679 F.3d 583, 590 (7th Cir. 2012); Joelner v. Vill. of Washington Park,
29

Case: 1:20-cv-02782 Document #: 5 Filed: 05/08/20 Page 36 of 36 PageID #:306

378 F.3d 613, 620 (7th Cir. 2004) (“it is always in the public interest to protect First Amendment

liberties”). Here, the public interest is best served in guaranteeing that Plaintiffs’ worship services

are entitled to First Amendment protection. Indeed, “[w]e believe that the public interest is better

served by protecting core First Amendment rights.” Id. (quoting Homans v. Alburquerque, 264

F.3d 1240, 1244 (10th Cir. 2001)). There is no “evidence that churches are less essential than every

other business that is currently allowed to be open,” On Fire, 2020 WL 1820249, at *9, and “the

public has a profound interest in men and women of faith worshipping together [in church]

in a manner consistent with their conscience.” Id. (emphasis added).

CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully request that the Court issue the TRO

and PI as set forth in the Prayer for Relief in Plaintiffs’ Verified Complaint (V.Compl. at 40–43.)

Respectfully submitted,

John W. Mauck Ill. Bar No. 179732
Sorin A. Leahu Ill. Bar No. 6315515
Mauck & Baker, LLC 1 N. LaSalle Street, Suite 600 Chicago, IL 60602 312-726-1243 Jmauck@mauckbaker.com Sleahu@mauckbaker.com

/s/ Horatio G. Mihet Mathew D. Staver* Horatio G. Mihet* Roger K. Gannam* Daniel J. Schmid* LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 Phone: (407) 875-1776 Facsimile: (407) 875-0770 Email: court@lc.org hmihet@lc.org rgannam@lc.org dschmid@lc.org

*Pro hac vice applications pending

Attorneys for Plaintiffs

30

 
 Case: 1:20-cv-02782 Document #: 18 Filed: 05/09/20 Page 1 of 7 PageID #:339

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS Eastern Division

ELIM ROMANIAN PENTECOSTAL

)

CHURCH, LOGOS BAPTIST

)

MINISTRIES,

)

)

Plaintiff,

)

Case No. 1:20-cv-02782

)

v.

)

)

JAY ROBERT PRITZKER, in his

)

official capacity as Governor of the

)

State of Illinois,

)

)

Defendant.

)

PLAINTIFFS’ RESPONSE IN OPPOSITION TO MOTION TO TRANSFER VENUE AND REASSIGN CASE Pursuant to L.R. 7.1, Plaintiffs ELIM ROMANIAN PENTECOSTAL CHURCH and LOGOS BAPTIST MINISTRIES (“Churches” or “Plaintiffs”), by and through the undersigned counsel, hereby file this Response in Opposition to Defendant’s Motion to Transfer and Reassign Case, (Dkt. 17, “Reassignment Motion”). For the following reasons, Defendants’ Motion should be denied.
LEGAL ARGUMENT I. THE GOVERNOR’S REASSIGMENT MOTION IS UNWARRANTED AND
IGNORES THE 50-YEAR TRADITION OF THIS COURT’S RANDOM ASSIGNMENT SYSTEM DESIGNED TO FOSTER JUDICIAL INTEGRITY. A. The Instant Litigation Is Not Related Factually Or Legally To Cassell. Defendant Governor Pritzker has submitted a motion to reassign the instant litigation to Judge Lee, currently presiding over Cassell v. Snyder, No. 3:20-cv-50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020). (Dkt. 17, Reassignment Motion at 1). In support, the Governor asserts that

Case: 1:20-cv-02782 Document #: 18 Filed: 05/09/20 Page 2 of 7 PageID #:340
there are common issues of law and fact and that judicial economy would best be served by relating the instant litigation and Cassell. (Id.). Neither is true, and a finding of relatedness in the instant litigation is unwarranted. The parties in the two lawsuits are not the same. (Compare (dkt. 1, Verified Complaint at 1, naming Governor Pritzker as the sole defendant), with (No. 3:20-cv50153, dkt. 1, at 1 (naming Governor Pritzker and local law enforcement officials with different enforcement capacities)). The jurisdictions in which Plaintiffs’ churches are situated are not the same as the plaintiffs in Cassell, and the enforcement actions or threatened actions from local law enforcement would arise from separate jurisdictions. (Compare (dkt. 1, Verified Complaint at 8, ¶¶19-20), with (No. 3:20-cv-50153, dkt. 1, at 5, ¶¶13-14)). This factual distinction is critical concerning the injunctive relief the different parties are seeking in these unrelated matters. The legal theories, while having overlap, are not identical and are much more extensive in the instant litigation than in Cassell. (Compare (dkt. 1, Verified Complaint at 21-40), with (No. 3:20-cv50153, dkt. 1, at 19-29)). Finally, the relief Plaintiffs seek in this action and any potential compromise they might be willing to accept is not in common with that of the Cassell plaintiffs. Thus, the two cases that the Governor seeks to have related do not have exclusively common questions of fact or law, and judicial economy is not served by granting the relief requested in the Governor’s Reassignment Motion. This case should proceed as all other cases in this Court, via the random assignment and the emergency scheduling that has already been determined by the Honorable Judge Gettleman.
B. This Court’s Local Rules Dictate Random Assignment As The Hallmark Of Fairness And Should Be Followed In This Matter.
This Court’s Local Rules plainly indicate that random assignment of judges is the hallmark of judicial fairness and the appearance of impartiality. L.R. 40.1, Cmt. Indeed, “[t]his Court has used a random assignment system for more than 50 years.” Id. An “important goal” of random
2

Case: 1:20-cv-02782 Document #: 18 Filed: 05/09/20 Page 3 of 7 PageID #:341
assignment is that “no one should be able to manipulate the assignment system in order to determine in advance which judge will get a case.” Id. “The fundamental rationale of random assignment is ‘to ensure greater confidence in the integrity of the judicial process’ by ‘guaranteeing fair and equal distribution of cases to all judges, avoiding public perception or appearance of favoritism in assignments and reducing opportunities for judge-shopping.’” United States v. Volvo Const. Equip. AB, 922 F. Supp. 2d 67, 68 (D.D.C. 2013) (quoting Tripp v. Executive Office of President, 196 F.R.D. 201, 202 (D.D.C. 2000)).
C. Similar Legal Issues Is Not Sufficient To Warrant Relation Or Reassignment. “The word ‘related’ as used in the rules requires a factually or transactionally related matter. Similar legal issues alone will generally not support assignment to the same judge.” Ukranian Nat’l Ass’n of Jewish Former Prisoners of Concentration Camps & Ghettos v. United States, 205 F.R.D. 102, 103 (E.D.N.Y. 2001) (emphasis added). See also ESS Tech., Inc. v. PCTel, Inc., No. C-99-20292 RMW, 2001 WL 1891713, *3 (E.D. Cal. Nov. 28, 2001) (denying motion to relate cases where only substantive argument was that the two cases “share substantially the same question of law”). “[T]he fact that cases involve a similar starting point is insufficient for relating them,” United States v. Pescatore, No. 05-CR-128, 2006 WL 47451, *7 (E.D.N.Y. Jan. 5, 2006), and it is beyond cavil that cases that “do not concern the same issues of fact or law” should not be related. McKersie v. IU Int’l Corp., 1987 WL 18551, *2 (N.D. Ill. Oct. 13, 1987). See supra Section I.A. D. Similar Factual Issues When Parties Are Different Does Not Warrant Relation
Or Reassignment. The same holds true when factual distinctions are present and the parties are not identical. See, e.g., Am. Direct Marketing, Inc. v. Azad Int’l, Inc., 783 F, Supp. 84, 87 (E.D.N.Y. 1992) (denying request to relate and consolidate cases where only one party was the same and the “factual
3

Case: 1:20-cv-02782 Document #: 18 Filed: 05/09/20 Page 4 of 7 PageID #:342
issues raised are different”); United States v. Schwamborn, No. 06 CR 328 SJF, 2006 WL 3337512, *3 (E.D.N.Y. Oct. 26, 2006) (denying motion to relate because multiple cases involving the same defendant is insufficient to warrant abandoning random assignment); Dale v. Executive Office of the President, 121 F. Supp. 2d 35, 37 (D.D.C. 2000) (noting that two cases are properly deemed unrelated because “any common issues of fact are minimal and completely insufficient to overcome the presumption of random assignment”); Autumn Journey Hospice, Inc. v. Sebelius, 753 F. Supp. 2d 135, 140 (D.D.C. 2010) (noting that minimal factual similarities warrants a finding that two cases are not related and that random assignment should prevail); Keepseagle v. Glickman, 194 F.R.D. 1, 3 (D.D.C. 2000) (refusing to relate cases even where the plaintiffs in the two cases “claim they were injured by the same policies of the defendant”); Westchester Fire Ins. Co. v. Treesdale, Inc., No. 05-1523, 2006 WL 1050518 (W.D. Pa. Apr. 19, 2006) (cases should not be related where they involve different organizations and different facts); Boyd v. Farrin, No. 121893(PLF), 2012 WL 6106415, *1 (D.D.C. Dec. 10, 2012) (cases “do[] not qualify as related” if they do “not involve common issues of fact”).
E. Even In Similar COVID-19 Litigation, A Challenge By Different Plaintiffs To The Same Executive Orders In The Same District Has Been Held Not To Warrant Relation Or Reassignment.
In fact, even in similar COVID-19 litigation where multiple plaintiffs challenged the Commonwealth of Kentucky’s executive orders, federal courts have found that relating two similar cases and reassigning to a different judge is not in the interest of justice, where – as here – the parties are different and the challenges involve different action by different government officials. See Maryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH, 2020 WL 1909616, *1 (W.D. Ky. Apr. 18, 2020).
4

Case: 1:20-cv-02782 Document #: 18 Filed: 05/09/20 Page 5 of 7 PageID #:343
F. The Governor Is Not Entitled To “Judge Shop.” Moreover, the fact that the Governor received a favorable initial adjudication from a judge to which he seeks to relate a case does not justify a finding of relatedness or an overcoming of the 50-year-old principle in this Court of random assignment. In fact, it directly contradicts the purpose of the rule as disfavoring judge shopping. See, e.g., Badger v. Advance Stores Co., Inc., No. 161872, 2017 WL 782925, *2 (W.D. Pa. Mar. 1, 2017) (noting that the related case rule “does not entitle a party to have a case heard before a particular judge . . . The purpose of the rule is not to encourage ‘judge shopping.’” (emphasis added)). Indeed, permitting the Governor to select his jurist would diminish the goal of perceived fairness. It would, in essence, “allow [the Governor] too much discretion to choose their judge, needlessly giving rise to concerns about judge-shopping, and risk undermining public confidence in the judicial system.” Rite-Aid Corp. v. Am. Exp. Travel Related Servs. Co., Inc., No. CV 08-2315(JG)(JO), 2008 WL 3155063, *3 (E.D.N.Y. Aug. 4, 2008). II. THE GOVERNOR’S MOTION TO TRANSFER VENUE SHOULD BE DENIED. The Governor claims that transfer is appropriate under 28 U.S.C. §1404. (Dkt. 17, Reassignment Motion, at 4). Such is not the law. “For the convenience of the parties and witnesses, in the interest of justice, a district may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C.§1404(a). The Governor fundamentally misconstrues the relevant statute concerning the propriety of transferring the instant litigation. The Governor’s suggestion that Plaintiffs merely concede to a different venue is improper and unwarranted as a matter of law. Indeed, “transfer [to another division] is inappropriate if it merely transforms an inconvenience for one party into an inconvenience for the other party.” Hanley v. Omarc, Inc., 6 F. Supp. 2d 770, 776 (N.D. Ill. 1998); see a 1014, lso Law Bulletin Pub. Co v. LRP
5

Case: 1:20-cv-02782 Document #: 18 Filed: 05/09/20 Page 6 of 7 PageID #:344
Pub., Inc., 992 F. Supp. 1014, 1019 (N.D. Ill. 1998) (same). Here, it certainly does so. This Court’s own rules mandated Plaintiffs to bring this action in this Eastern Division, as they are situated in Cook County. (Dkt. 1, Verified Complaint, ¶¶19-20). That is the most convenient forum in which Plaintiffs may bring their claims, and Plaintiffs are entitled to a presumption that their chosen forum is appropriate. See, e.g., Macedo v. Boeing Co., 93 F.2d 683, 688 (7th Cir. 1982); First Nat’l Bank v. El Camino Res., Ltd., 447 F. Supp. 2d 902, 912 (N.D. Ill. 2006) (“a plaintiff’s choice of forum is given substantial weight when, as here, it is the plaintiff’s home forum”). The Governor’s contrary suggestion should be rejected.
CONCLUSION Because the parties in the instant-litigation and those in Cassell are different, because the legal theories are not entirely the same (and, indeed, they are much more extensive in the instant litigation), and because permitting the Governor to relate a matter in this regard would undermine the purposes of the rule requiring random assignment, the Governor’s Reassignment Motion should be denied.
6

Case: 1:20-cv-02782 Document #: 18 Filed: 05/09/20 Page 7 of 7 PageID #:345

Respectfully submitted,

Respectfully submitted,

John W. Mauck Ill. Bar No. 179732
Sorin A. Leahu Ill. Bar No. 6315515
Mauck & Baker, LLC 1 N. LaSalle Street, Suite 600 Chicago, IL 60602 312-726-1243 Jmauck@mauckbaker.com Sleahu@mauckbaker.com

/s/ Daniel J. Schmid Mathew D. Staver* Horatio G. Mihet* Roger K. Gannam* Daniel J. Schmid* LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 Phone: (407) 875-1776 Facsimile: (407) 875-0770 Email: court@lc.org hmihet@lc.org rgannam@lc.org dschmid@lc.org

*Pro hac vice applications pending

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on this 9h day of May, 2020, I caused a true and correct copy of the foregoing to be electronically filed with this Court. Service will be effectuated on all counsel of record via this Court’s ECF/electronic notification system.

/s/ Daniel J. Schmid Daniel J. Schmid

7

 
 Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 1 of 44 PageID #:349

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

ELIM ROMANIAN PENTECOSTAL CHURCH and LOGOS BAPTIST MINISTRIES,

No. 20-C-02782

HonorablPelSaitnevtiefnfs,C. Seeger v.

Honorable Robert W. Gettleman

GOVERNOR JB PRITZKER,

Defendant.

THE GOVERNOR’S OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Dated: May 9, 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

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 2 of 44 PageID #:350
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 LEGAL STANDARD..................................................................................................................... 7 ARGUMENT .................................................................................................................................. 9
I. Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims...................................... 9 A. The Current Executive Order is a Constitutional Exercise of the Governor’s Emergency Powers to Combat the COVID-19 Pandemic. ........................................... 10 B. Plaintiffs’ Free Exercise Claims Fail. ........................................................................... 17 1. The Current Executive Order is a Valid Content Neutral Law of General Applicability. ........................................................................................................... 18 2. The Current Executive Order is not Unduly Burdensome on Plaintiffs’ Religious Practices. ................................................................................................................. 24 3. The Current Executive Order Satisfies Strict Scrutiny. .......................................... 24 C. Plaintiffs’ Establishment Clause Claim Fails................................................................ 28 D. Plaintiffs’ Free Speech and Assembly Claims Fail....................................................... 30 1. The Current Executive Order is a Reasonable Time, Place, and Manner Regulation that Does Not Violate the First Amendment. .......................................................... 31 2. The Current Executive Order is Not a Prior Restraint. ........................................... 34 3. The Governor’s Current Executive Order Does Not Give the Governor Standardless Discretion. ........................................................................................................ 35 E. Plaintiffs’ State Law Claim Against the Governor in His Official Capacity is Barred by Eleventh Amendment Sovereign Immunity.................................................................. 35
II. Plaintiffs Have Not Demonstrated Irreparable Harm to Warrant a TRO or Preliminary Injunction. .......................................................................................................................... 39
III. The Harm to the State and the Public from a TRO Substantially Outweighs any Interim Harm to Plaintiffs Absent a TRO. ..................................................................................... 40
CONCLUSION............................................................................................................................. 42

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 3 of 44 PageID #:351
INTRODUCTION During the unprecedented public health threat posed by the COVID-19 pandemic, Plaintiffs in this case ask for extraordinary injunctive relief that would put them and their communities at great risk by exempting them from critical public health measures. Just last week, another judge in this district rejected a nearly-identical challenge to these measures, explaining that when “[t]aking into account COVID-19’s virulence and lethality, together with the State’s efforts to protect avenues for religious activity,” the public interest weighed heavily against providing the same relief Plaintiffs seek here. This Court should reach the same result and deny Plaintiffs’ motion for a temporary restraining order and preliminary injunction. Last Sunday, May 3, 2020, Judge John Z. Lee rejected a request for emergency injunctive relief by a pastor and his Lena, Illinois church challenging the Governor’s effort to prevent the spread of COVID-19 through Executive Order 2020-32. Cassell et al. v. Snyder et al., No. 20 C 50153, ECF No. 39 (May 3, 2020 Mem. Op., “Cassell Opinion).1 Executive Order 2020-32 is the current version of the so-called “stay-at-home” order (“Current Executive Order. The plaintiffs in Cassell sought to invalidate the Current Executive Order and its predecessors on First Amendment grounds because it temporarily restricts their ability to have in-person worship services with more than 10 people due to the well-established risk of COVID-19 transmission at large gatherings. Judge Lee concluded, however, that the plaintiffs had a “less than negligible chance of prevailing” on their core claim that the Current Executive Order violates their right to free exercise of religion. Cassell Opinion, at 16. Applying Supreme Court precedent from Jacobson
1 The Cassell Opinion is accessible on this Court’s ECF system and through Westlaw at Cassell v. Snyders, No. 20 C 50152, 2020 WL 2112374 (N.D. Ill. May 3, 2020).
1

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 4 of 44 PageID #:352
v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), as well as Employment Division v. Smith, 494 U.S. 872 (1990), and Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), Judge Lee concluded that the Current Executive Order: (i) imposes reasonable restrictions related to combatting the current public health emergency posed by COVID-19, Cassell Opinion, at 14–l6 (applying Jacobson); and (ii) alternatively, that it is a neutral law of general applicability that easily survives rational basis scrutiny, Cassell Opinion, at 17–26 (applying Smith and Lukumi). Judge Lee also found no reasonable likelihood of success on the other claims on which the plaintiffs sought emergency injunctive relief, including their claim under Illinois’ Religious Freedom Restoration Act (“RFRA”), 775 ILCS 35/15. See Cassell Opinion, at 28–31. Judge Lee also concluded that the balance of harms “weigh[ed] heavily against” granting emergency injunctive relief in light of the ongoing COVID-19 pandemic. Cassell Opinion, at 36. In doing so, he pointed to the risk inherent in mass gatherings, including large worship services, and highlighted multiple examples of large COVID-19 outbreaks traceable to these types of events. Id. at 22, 35.
Plaintiffs in this case, two churches located in Chicago and Niles, Illinois, ask this Court to disregard Judge Lee’s ruling and grant them emergency injunctive relief so they can congregate immediately without regard to the 10-person limit, despite the ongoing COVID-19 pandemic. There is no reason to do so.
Plaintiffs point to no new precedent indicating that Judge Lee’s ruling upholding the Current Executive Order was erroneous. Instead, Plaintiffs repeatedly point to a Kentucky district court decision and a Sixth Circuit decision they say requires a different result, but Judge Lee considered both of those cases. Compare ECF No. 5, at 2, 3, 4, 6, 7, 8, 9, 11, 19, 21, 26, 28, 29, 30 (citing On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-cv-264-JRW, 2020 WL 1820249
2

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 5 of 44 PageID #:353
(W.D. Ky. Apr. 11, 2020), and Maryville Baptist Church, Inc. v. Beshear, -- F.3d --, No. 205427, 2020 WL 2111316 (6th Cir. May 2, 2020)), with Cassell Opinion, at 25–26. In analyzing the Maryville Baptist decision, Judge Lee concluded that “the Sixth Circuit’s reasoning counsels in favor of upholding Governor Pritzker’s Order.” Cassell Opinion, at 25. The Sixth Circuit faulted the executive order at issue in Maryville Baptist because it did not permit drive-in worship services—which, as Judge Lee recognized, the Current Executive Order allows—and because it banned in-person worship services altogether, no matter the number of attendees. Maryville Baptist, 2020 WL 2111316 , at *1, *4. In discussing the ban on in-person worship services, the Sixth Circuit stated that “[i]f the problem is numbers, and risks that grow with great numbers, there is a straightforward remedy: limit the number of people who can attend a service at one time.” Id. at *4. But as Judge Lee observed: “That is exactly what Governor Pritzker’s latest order does” in permitting worship services with no more than 10 people.2 Cassell Opinion, at 26. Judge Lee also distinguished the Kentucky district court’s decision in On Fire because that case involved a ban on drive-in worship services, which, again, are permitted by the Current Executive Order. Cassell Opinion, at 25 n.6.
Plaintiffs’ other principal case, First Baptist v. Kelly, No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020) (cited at ECF No. 5, at 2, 3, 8, 12, 14, 27), was also considered and distinguished by Judge Lee. Cassell Opinion, at 23–25. The problem identified by the First Baptist court was that the Kansas governor’s COVID-19 executive order banned mass gatherings
2 Another Kentucky district court ruled on May 8, 2020, that the Kentucky governor’s order prohibiting all in-person worship services, with no numerical threshold, likely violated the First Amendment. Tabernacle Baptist Church v. Beshear, No. 3:20-cv-00033-GFVT, ECF No. 24 (E.D. Ky. May 8, 2020). That decision, however, is inapposite because the Current Executive Order in Illinois permits in-person worship services with fewer than 10 people.
3

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 6 of 44 PageID #:354
at auditoriums, theaters, stadiums, and “churches or other religious facilities,” but contained exemptions for airports, large retail stores, and restaurants where social distancing was possible. 2020 WL 1910021, at *2. This express reference to churches and other religious facilities stripped the executive order of its neutrality and triggered strict scrutiny in the eyes of the First Baptist court. Id. at *7.
Judge Lee rejected the reasoning in First Baptist as “difficult to square with Lukumi.” Cassell Opinion, at 24. In his view, Lukumi requires courts to “consider how a particular stay-athome order treats secular and religious activities that are substantially comparable to one another.” Cassell Opinion, at 25. Applying Lukumi, Judge Lee found that the Current Executive Order permissibly distinguishes between large, mostly static gatherings—like those occurring at schools, movie theatres, concerts, sporting events, and worship services—and activity at retail stores selling life-sustaining goods, where shoppers “purchase necessary items and then leave as soon as possible.” Id. at 21–23.
In this case, Plaintiffs, relying on First Baptist, again press the view that the Current Executive Order exhibits impermissible religious discrimination because it permits “Walmart and other ‘supercenter’ or ‘big box’ stores” to have more than 10 people in them at any one time, but not houses of worship. (ECF No. 5, at 8; see also id. at 10, 13.) But Plaintiffs’ “big box” store argument is based on Plaintiffs’ unscientific and unsupported view of the relative risk of COVID-19 transmission presented by shopping for life-sustaining goods while observing social distancing as compared to sitting or standing (and often singing and speaking) in a large group for an hour or longer. Plaintiffs’ disagreement with the Governor’s epidemiological risk assessment is not, however, the type of “religious gerrymander” that Lukumi prohibits. See 508 U.S. at 535. Like Judge Lee, this Court should reject the arguments Plaintiffs raise.
4

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 7 of 44 PageID #:355
Plaintiffs’ other attempts to distinguish Judge Lee’s ruling also fail. Plaintiffs attach great weight to purported differences in the Current Executive Order and executive orders from other states to claim that the Illinois order does not adopt the least restrictive means to accomplish its compelling interest of combatting the COVID-19 pandemic. (ECF No. 5 at 25–27.) But as a matter of law, this Court need not and should not assess whether the 10-person limitation on gatherings in the Current Executive Order is the least restrictive alternative because strict scrutiny does not apply. As Judge Lee concluded, Cassell Opinion, at 16, the Supreme Court’s decision in Jacobson provides the applicable standard and requires upholding governmental rules and regulations implemented to combat a pandemic as long as they are not “arbitrary” or “unreasonable.” 197 U.S. at 28. Similarly, under traditional First Amendment Analysis, the Current Executive Order is subject to rational basis scrutiny because it is a neutral law of general applicability. Cassell Opinion, at 16–26 (applying Smith and Lukumi).
Plaintiffs’ characterization of what the least restrictive alternative test required of the Governor in this circumstance also shows a fundamental misunderstanding (or, worse, dismissal) of the severity of this pandemic. According to Plaintiffs, because some other states have not applied a 10-person limitation to religious gatherings, Illinois was required to try that approach first to see if it adequately served the government’s compelling interest in preventing the spread of COVID-19. (ECF No. 5, at 26, arguing that “[t]he State has refused to consider or attempt” exempting worship services from the limitation on large gatherings.) Not so: the First Amendment does not require the Governor to first permit large gatherings, religious or otherwise, to see if more people become infected and further spread the virus. “The right to practice religion freely does not include liberty to expose the community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944).
5

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 8 of 44 PageID #:356
Plaintiffs also are merely speculating that the alternative approaches employed in other states are effective alternatives to stopping the spread of COVID-19—indeed, epidemiologists are predicting significantly more deaths due to COVID-19 than previously predicted because of the more lax approaches in the states Plaintiffs laud.3 See Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666 (2004) (stating that the challenged regulation must be “the least restrictive means among available, effective alternatives”) (emphasis added).
Plaintiffs offer nothing new or different that compels this Court to take the extraordinary step of invalidating the same executive order that another judge in this district upheld against the same essential constitutional challenges just last week. Just as it was last week, the Current Executive Order is a reasonable response to the COVID-19 pandemic under Jacobson, and a valid, neutral law of general applicability under Smith and Lukumi. And, as in the Cassell case, Plaintiffs’ parallel state-law claims fail on the merits under the same basic analysis, and also because the Governor, acting in his official capacity, is entitled to sovereign immunity under the Eleventh Amendment. Cassell Opinion, at 26–31.
The balance of harms has also not materially changed in the last week since Judge Lee’s ruling in Cassell. Illinois continues to confront a pandemic that regularly claims more than 100 Illinois residents’ lives on a daily basis. As Illinois continues to remain on top of what appears to be a plateau of continuing death due to COVID-19, this is no time to enjoin the critical measures the Governor has taken to flatten the curve. Plaintiffs’ motion should be denied because they
3 Reuters, “Researchers Double U.S. COVID-19 Death Forecast, Citing Eased Restrictions,” N.Y. Times (May 4, 2020), https://www.nytimes.com/reuters/2020/05/04/us/04reuters-health-coronavirus-usa.html (last visited May 9, 2020).
6

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 9 of 44 PageID #:357
have no reasonable likelihood of success on the merits of their claims, no irreparable harm, and the balance of harms tips decidedly against their requested relief.
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 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 (ECF No. 5, at 30) is the same as what they ultimately seek in their complaint. See, e.g., Boucher, 134 F.3d at 826 n. 6 (“A preliminary injunction that would give the movant substantially all the relief he seeks is disfavored, and courts have imposed a
7

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 10 of 44 PageID #:358
higher burden on a movant in such cases.”); W.A. Mack v. General Motors Co., 260 F.2d 886, 890 (7th Cir. 1958) (“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 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.
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
8

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 11 of 44 PageID #:359
“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 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 temporary restraining order (“TRO”) and preliminary injunction 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 will not suffer irreparable harm in the absence of TRO, and the balance of harms tips decidedly against them in light of the clear threat to public health and 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 move to be exempted from “various COVID-19 Executive Orders and other enforcement directives,” which they refer to as “Gathering Orders” in their motion. (ECF No. 5, at 1.) To the extent their claims are challenging Executive Orders 2020-10 and 2020-18, which have been superseded by Executive Order 2020-32, those portions of their claims are moot, as they were in Cassell. Cassell Opinion, at 9; see also Pakovich v. Verizon LTD Plan, 653 F.3d 488, 492 (7th Cir. 2011). And to the extent Plaintiffs’ claims are based on the recently announced but not-yet implemented “Restore Illinois Plan,” ECF No. 5, at 1, those portions of
9

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 12 of 44 PageID #:360
their claims are not yet ripe. See O’Shea v. Littleton, 414 U.S. 488, 494 (1974). Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967).
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 residents. 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 actions taken to curb the spread of a dangerous disease and mitigate its effects. Plaintiffs have not shown that the 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, 197 U.S. at 27 (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).
10

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 13 of 44 PageID #:361
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 Prince, 321 U.S. at 166-67 (“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 (1926) (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.”).
11

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 14 of 44 PageID #:362
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 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.
12

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 15 of 44 PageID #:363
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 response to the imminent and deadly threat the COVID-19 pandemic poses. To date, the disease has infected over 1.2 million people and caused over 73,000 deaths in the United States.4 Here in Illinois, more than 73,000 people have been infected and over 3,240 have died, including 1,248 in Cook County alone.5 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-19.6 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 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
4See Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 8, 2020). 5 See COVID-19 Statistics, https://www.dph.illinois.gov/covid19/covid19-statistics (last visited May 8, 2020). 6 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 May 8, 2020.
13

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 16 of 44 PageID #:364
the danger that infected individuals will project respiratory droplets that contain the virus and
may infect others. Mass 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.7
 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 contact with one another, and the members tried to maintain physical distance between one another.8
 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.9
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. Last week, as noted, Judge Lee considered a materially identical Free
Exercise claim and denied a motion for a TRO and preliminary injunction, finding the likelihood
of success on that claim to be “less than negligible.” Cassell Opinion, at 16. Additionally, courts
across the country have denied requests for preliminary injunctive relief in constitutional
7 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 May 8, 2020). 8 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/2020-0329/coronavirus-choir-outbreak. 9 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-gla-life-church-coronavirus-virtual-service-tl-040220200331-s4twslv2ynhk3padh7sjrxy3wi-story.html (last visited May 8, 2020).
14

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 17 of 44 PageID #:365
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 COVID19-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-19 related executive orders); 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. Apr. 1, 2020) (same, Virginia); Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Sup. Ct. March 25, 2020) (same, New Hampshire).
Judge Lee’s ruling in Cassell is directly on point. He analyzed the Governor’s powers to respond to a public health emergency under Jacobson and wrote:
Today, COVID-19 threatens the lives of all Americans. The disease spreads easily, causes severe and sometimes fatal symptoms, and resists most medical interventions. When Governor Pritzker issued the amended stay-at-home rules, thousands of Illinoisans had perished due to the disease. Based on the plethora of evidence here, the Court finds that COVID-19 qualifies as the kind of public health crises that the Supreme Court contemplated in Jacobson and that the coronavirus continues to threaten the residents of Illinois. Cassell Opinion, at 15-16. The fact that these restrictions have successfully flattened the curve of new cases does not mean that there is not still work to be done. Lifting precautions now would be “like throwing away your umbrella in a rainstorm because you are not getting wet.” Id. at 16 (quoting Shelby Cty., Ala. v. Holder, 570, U.S. 529, 590 (2013) (Ginsburg, J., dissenting)).
15

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 18 of 44 PageID #:366
Judge Lee’s ruling was consistent with cases from other district courts. For example, two weeks ago, 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).
Plaintiffs cite the Sixth Circuit’s decision in Maryville Baptist Church Inc. v. Beshear, No. 20-5427, WL 2111316 (6th Cir. May 2, 2020). But Judge Lee considered the Sixth Circuit’s opinion in Maryville Baptist and found it did not support entering a TRO or preliminary injunction in the context of the Illinois order. First, he pointed out that Kentucky’s stay-at-home orders proscribed both drive-in and in-person services. Cassell Opinion, at 25 (citing Maryville Baptist, WL 2111316 at *1). The Sixth Circuit was specifically concerned that Kentucky’s
16

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 19 of 44 PageID #:367
governor offered no good reason to treat drive-in religious services and drive-in business differently and thus halted enforcement of the prohibition on drive-in services. By contrast, the Illinois order at issue here explicitly permits drive-in services as well as in-person services of 10 people or less.
Second, Judge Lee applied Maryville Baptist to the Governor’s Current Executive Order and found that the Sixth Circuit’s reasoning favors upholding the order:
Unlike in Maryville Baptist, the [Current Executive] Order confirms that religious organizations in Illinois may hold drive-in services. To the extent that the Sixth Circuit expressed concerns about restrictions on in-person services, those doubts stemmed from the fact that the Kentucky Governor’s orders prohibit in-person religious gatherings, regardless of how many worshippers attend. “[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. Cassell Opinion, at 25-26 (internal citations omitted). Plaintiffs fail to address Judge Lee’s application of Maryville Baptist to the Governor’s Current Executive Order, let alone provide any reason why the Court should not follow it. 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 and partially limit 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. 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.
17

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 20 of 44 PageID #:368
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 Employment Division 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, 508 U.S. at 533). 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, 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) (citations and quotations omitted); see also Listecki v. Official Committee of Unsecured Creditors, 780 F.3d 731, 744 (7th Cir. 2015).
18

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 21 of 44 PageID #:369
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. (ECF No. 1-8, 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. (ECF No. 1-8, Ex. H, at 5).
Plaintiffs argue that the Current Executive Order “expressly target[s] ‘faith-based’ gatherings for disparaging treatment. (ECF No. 5 at 8.) This is not true. The Current Executive Order limits all comparable public gatherings of more than 10 people. See Cassell Opinion, at 19 (“[T]he Order proscribes secular and religious conduct alike.”) Indeed, as explained below, the Current Executive Order treats religious gatherings more favorably than comparable gatherings because it explicitly permits gatherings of up to 10 people for the free exercise of religion. (ECF No. 1-8, Ex. H, at 6).
But Plaintiffs 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, etc. (i.e., essential businesses) means that the Executive
19

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 22 of 44 PageID #:370
Order is neither neutral nor generally applicable. 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.”).
Plaintiffs’ arguments here are identical to the arguments made in Cassell, which Judge Lee rejected. Instead, Judge Lee followed the approach in Legacy Church and Gish. As he pointed out, “retailers and food manufacturers are not comparable to religious organizations.” See Cassell Opinion, at 21. The key distinction rests in the nature of each activity:
Holding in-person religious services creates a higher risk of contagion than operating grocery stores or staffing manufacturing plants . . . When people buy groceries, for example, they typically enter a building, do not engage directly with others except at points of sale, and leave once the task is complete. 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. By comparison, religious services involve sustained interactions between many people . . . 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 secular businesses Plaintiff’s identify. Lukumi, 508 U.S. at 543. Id. (citing Gish, 2020 WL 1979970 at *6) (internal quotations omitted). 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 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.” Legacy Church, Inc., 2020 WL 1905586 at *40. And many of these types of gatherings—such as eating in a restaurant, going to a movie theater,
20

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 23 of 44 PageID #:371
attending a sporting event—are banned entirely, whereas religious gatherings of fewer than 10 people are permitted under the Current Executive Order. Another more apt analogy is between places of worship and schools. See Cassell Opinion, at 22. “And here, the Order imposes the same restrictions on schools as it does not churches, synagogues, mosques, and other places of worship.” Id.
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.”10 Cf. Lukumi, 508 U.S. at 535. Indeed, contrary to Plaintiffs’ 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). As a result, the ordinance effectively singled out one religious practice, which subjected the law to heightened scrutiny. Id.
10 Plaintiffs point out that the Governor’s stay-at-home order impacted the Christian holy day of Easter. The stay-at-home 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).
21

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 24 of 44 PageID #:372
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 than ten people is in place. The Current Executive Order is neutral and generally applicable.
Plaintiffs cite two recent cases in support of the proposition that the Governor’s stay-athome order is not neutral and generally applicable and thus subject to heightened scrutiny. Both, however, are distinguishable. The earlier case, On Fire, 2020 WL 1820249, 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.
Plaintiffs’ other cited case, First Baptist, 2020 WL 1910021, 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. (ECF 1-8, Ex. H, at 5-6.) Additionally, as previously discussed, the Current Executive Order permits drive-in services, an issue on which the court in First Baptist was silent.
The court in First Baptist also misapplied Lukumi. Cf. Cassell Opinion, at 24 (“The approach in First Baptist is difficult to square with Lukumi.”). As Judge Lee observed: “Lukumi
22

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 25 of 44 PageID #:373
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.” Id.
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, because comparable secular gatherings are similarly prohibited.
First Baptist is also an outlier. 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; Cassell, 2020 WL 2112374 at * 26; 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.
The Current Executive Order easily passes rational basis. Cassell Opinion, at 26. 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 a compelling interest “of the highest order.” On Fire, 2020 WL 1820249 at *7. Prohibiting large gatherings, secular and religious, furthers that legitimate interest.
23

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 26 of 44 PageID #:374
2. The Current Executive Order is not Unduly Burdensome on Plaintiffs’ Religious Practices.
Despite Plaintiffs’ argument to the contrary (ECF No. 5, at 19), the Current Executive Order is not unduly burdensome on Plaintiffs’ religious practices. Because of the ongoing and unprecedented public health crisis, public gatherings, both religious and secular, are prohibited by the Current Executive Order. While this size restriction on gathering does place some burden on religious activity, it is not an undue burden. Plaintiffs have ample alternative means with which to conduct religious services. The Current Executive Order explicitly permits religious services through drive-in services and in-person gatherings of 10 people or less so long as they abide by social distancing guidelines—which could include multiple services throughout the day. Plaintiffs may also conduct religious services over the internet, which allows for an unlimited amount of people to gather virtually for religious purposes.
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 Cassell Opinion, at 22. 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 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 in the midst of this pandemic.
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 Current Executive 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
24

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 27 of 44 PageID #:375
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 for which there is no effective treatment or vaccine. 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 is only 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.”). Indeed, although Plaintiffs take issue with the Restore Illinois Plan, it clearly reflects the Governor’s intent to roll back the restrictions currently in place as public health conditions allow going forward.
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 10 people if they are part of an essential business. But as previously discussed, these
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) available at http://www.chicagotribune.com/coronavirus/ct-coronavirus-forecasts-hospitals-rush-20200331v5vcjb3kyvdtjme32of6tt2j64-story.html (last visited May 9, 2020).
25

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 28 of 44 PageID #:376
exempted activities are not analogous to religious mass gatherings. And these activities, like providing healthcare treatment and food processing, cannot be conducted remotely. See Legacy Church, 2020 WL 1905586 at *37 n. 12.
Plaintiffs contend that the fact that other states have not applied a 10-person limitation to religious gatherings means that Illinois had to try that approach first. (ECF No. 5, at 26 (arguing that “[t]he State has refused to consider or attempt” exempting worship services from the limitation on large gatherings). This proposition has no application to an emergency situation like the current pandemic, where each day and every gathering poses the risk of exponential spread of the disease. The First Amendment does mandate that the Governor experiment with the lives of Illinois residents in order to permit Plaintiffs to worship in a manner that carries significant epidemiological risk until that risk is realized with more avoidable deaths. “The right to practice religion freely does not include liberty to expose the community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944).
Plaintiffs also have no idea whether the measures they tout that were adopted in Texas, Florida, Indiana, Arizona, and Ohio will be sufficient to control the spread of COVID-19. (ECF No. 5 at 32.) See Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666 (2004) (stating that the challenged regulation must be “the least restrictive means among available, effective alternatives”) (emphasis added). Indeed, an influential epidemiological model recently doubled the number of forecasted COVID-19 deaths in the United States precisely because of the more lax approaches in the states Plaintiffs reference.12 The least restrictive alternative component of
12 Reuters, “Researchers Double U.S. COVID-19 Death Forecast, Citing Eased Restrictions,” N.Y. Times (May 4, 2020), https://www.nytimes.com/reuters/2020/05/04/us/04reuters-health-coronavirus-usa.html (last visited May 9, 2020).
26

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 29 of 44 PageID #:377
the strict scrutiny standard has never required a governor to knowingly accept the inevitable illness and death of residents in the midst of a pandemic.
Judge Lee already considered this same basic argument in Cassell and rejected it. As he explained, the least restrictive alternative assessment “turns on ‘whether [the government] could have achieved, to the same degree, its compelling interest” without interfering with religious activity.” Cassell Opinion, at 12 (quoting Affordable Recovery Hous. v. City. of Blue Island, No. 12 C 4241, 2016 WL 5171765, at *8 (N.D. Ill. Sept. 21, 2016)). Thus, the issue is whether allowing Plaintiffs to hold services without limits on its congregation size would advance the Governor’s interest in curtailing the spread of COVID-19 to the same degree as the 10-person limit. Id. It plainly would not.
Even with social distancing measures in place, a full congregation poses significantly greater health risks than limiting public gatherings to 10 people or fewer, or holding drive-in services. See id. For instance, in the church choir practice in Seattle where forty-five members contracted COVID-19 and two died, the members actually used hand sanitizer and practiced social distancing. Id. at 13.13 “As that example illustrates, large gatherings magnify the risk of contagion even when participants practice preventative measures.” Id.
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
13 Citing 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/202003-29/coronavirus-choir-outbreak).
27

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 30 of 44 PageID #:378
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. Plaintiffs’ Establishment Clause Claim Fails. Plaintiffs bring an Establishment Clause claim in addition to their Free Exercise Claim, but the Current Executive Order does not violate the Establishment Clause. (ECF No. 5, at 11– 14.) The Establishment Clause of the First Amendment prohibits any laws “respecting an establishment of religion.” U.S. Const. Amend. 1. The “central purpose” of the Establishment Clause is “governmental neutrality in matters of religion.” Gillette v. United States, 401 U.S. 437, 449 (1971). In other words, “the Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization.” Id. at 450. Thus, the Establishment Clause is not offended where the government does not take action which favors one religion over others or treats certain religions as less than others. See id. (“The critical weakness of petitioners’ establishment claim arises from the fact that [section] 6(j) [of the Military Selective Service Act of 1967], on its face, simply does not discriminate on the basis of religious affiliation or religious belief, apart of course from beliefs concerning war.”). Here, the Current Executive Order plainly does not discriminate on the basis of religious affiliation or religious belief because it facially treats all religions equally.
28

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 31 of 44 PageID #:379
Additionally, Plaintiffs fail to cite the leading Establishment Clause case, Lemon v. Kurtzman, 403 U.S. 602 (1972). Lemon provides the standard through which Establishment Clause claims are evaluated. It established that to comply with the Establishment Clause, the government action at issue must: (1) have a secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) not foster an excessive government entanglement with religion. Id. at 612-13.
The Current Executive Order easily satisfies the Lemon test. First, it has the plainly secular purpose of preventing the spread of a deadly pandemic. Second, the Current Executive Order does not inhibit religion because, as explained above in the Free Exercise clause analysis and in Judge Lee’s opinion, see Cassell Opinion, at 31, the Current Executive Order does not place an undue burden on religious activity. Plaintiffs still have ample alternatives to have inperson gatherings with no more than 10 people. They may hold services online, conduct drive-in services, or hold multiple services of 10 people or less. Finally, the Current Executive Order plainly does not foster any government entanglement with religion, let alone excessive entanglement. The Current Executive Order regulates religious institutions the same as other secular establishments where mass gatherings occur. In this respect, the Current Executive Order creates no more entanglement than a generally applicable fire code regulating the number of people who may be in a building.
Plaintiffs’ attempt to conjure an Establishment Clause violation from the Governor’s prior stay-at-home orders has no basis in fact or Establishment Clause jurisprudence. (ECF No. 5 at 11–14.) Plaintiffs purport to look to “the progression of the government’s actions”—in this case, the addition in the third version of the stay-at-home order of a provision expressly recognizing the “free exercise of religion” as an “essential activity” (id. at 13)—and assert that
29

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 32 of 44 PageID #:380
the Governor’s actions restricting large gatherings are a “sham” and a “pretext” concealing antireligious bias that violates the requirement of governmental neutrality in matters of religion. (Id. at 14.) Plaintiffs’ argument is simply illogical. It makes no sense to treat the insertion of a provision that expressly invites the free exercise of religion as a “gotcha” exposing alleged antireligious animosity. But that is Plaintiffs’ argument. (Id. at 13–14.) And it is both wrong and facially implausible. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2008) (only “plausible” claims survive a motion to dismiss, and the plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense”). In actuality, as Plaintiffs’ own recitation demonstrates (ECF No. 5, at 12), the numerical limitation on gatherings, both secular and religious, which progressed from 1,000 to 250 to 50 to 10 as the pandemic worsened, has only ever been about one thing: mitigating the risk of COVID-19 transmission. The accusation that this limitation evinces the Governor’s lack of neutrality on religious matters can and should be rejected as implausible and unsupported.
D. Plaintiffs’ Free Speech and Assembly Claims Fail. While the core of Plaintiffs’ motion focuses on their Free Exercise Clause claim, Plaintiffs also contend that the Current Executive Order violates their rights under the Free Speech and Free Assembly clauses of the First Amendment. (ECF No. 5, at 14–19.) But the 10person limitation on gatherings, both secular and religious, that Plaintiffs challenge is a contentneutral time, place, and manner regulation. Federal courts around the country have upheld similar regulations in the midst of the COVID-19 pandemic. Plaintiffs’ attempts to shoehorn the Current Executive Order into case law regarding prior restraints and standard-less discretion also fail as a matter of law.
30

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 33 of 44 PageID #:381
1. The Current Executive Order is a Reasonable Time, Place, and Manner Regulation 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 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
31

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 34 of 44 PageID #:382
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. 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 v. Farrelly, 723 F. Supp. 1109, 1112-13 (9th Cir. 1989)(“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 Plaintiffs’ free speech rights. 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.”); Cassell Opinion, at 9–11 (concluding,
32

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 35 of 44 PageID #:383
for purposes of the free exercise claim, that the Current Executive Order was a neutral regulation, and that the distinction made between in-person religious services and grocery stores and other essential stores was based on legitimate public health factors).
Second, the Current Executive Order is narrowly tailored. As discussed below, statewide orders are necessary to prevent the spread of a communicable disease for which there is no known effective treatment or vaccine. Furthermore, the imposition of these orders has mitigated the spread of the virus in a way that lesser measures would not have.14 See, e.g., Cassell Opinion, at 12–13 (concluding that the Current Executive Order is the “least restrictive means” of furthering the State’s compelling interest in mitigating the spread of the virus); 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 be in place only for the duration of the declared emergency, and as reflected in the Restore Illinois Plan, will be phased out as public health conditions allow. 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. See Cassell Opinion, at 8. As Judge Lee observed, the Current
14 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/ct-coronavirus-forecasts-hospitals-rush-20200331v5vcjb3kyvdtjme32of6tt2j64-story.html (last visited April 30, 2020).
33

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 36 of 44 PageID #:384
Executive Order also allows “small group meetings, bible study meetings, and prayer gatherings at the church or in private homes,” “communion in small groups,” as well as authorizing “individual congregants to go to the church to obtain spiritual help and guidance from their pastor and/or other church staff members.” Id. at 13. 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 have no likelihood of success on their free speech claim.15
2. The Current Executive Order is Not a Prior Restraint. Plaintiffs argue that the Current Executive Order constitutes a prior restraint (ECF No. 5 at 16–17), although the basis for that argument is not entirely clear. As discussed above, the Current Executive Order does not restrain any speech—Plaintiffs are free to say whatever they want in online gatherings, drive-in services, or in-person gatherings of 10 or fewer people. As another court observed in a church’s challenge to a zoning ordinance, “nothing in the pleadings establishes that the [Executive Order] prevent[s Plaintiffs] from worshipping, coerce[s] them to modify the content of their message, or restrict[s] the content of their speech or religious practices.” Light of World Gospel Ministries, Inc. v. Vill. of Walthill, Nebraska, No. 8:18-CV312, 2019 WL 7454714, at *5 (D. Neb. Feb. 7, 2019). Rather, as discussed above, the Current Executive Order is a content-neutral time, place, or manner regulation. Id. at *5–6; see also Gish,
15 Although the complaint raises the issue of freedom of assembly, this issue is not separately analyzed in Plaintiffs’ motion. 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.
34

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 37 of 44 PageID #:385
2020 WL 1979970, at *7 (finding that plaintiffs would “likely fail” on their claim that the California governor’s executive order was an unconstitutional prior restraint on speech).
3. The Governor’s Current Executive Order Does Not Give the Governor Standard-less Discretion.
Plaintiffs argue that the Current Executive Order unconstitutionally vests “unbridled discretion” in the hands of the Governor “not only. . . because there are no checks on the State, but [it] is even worse because the State has actually exercised its unchecked discretion to prohibit religious gatherings of more than 10 people while not prohibiting similar non-religious gatherings.” (ECF No. 5 at 18). But this argument misunderstands the nature of the “unbridled discretion” doctrine. The doctrine applies where a government imposes “content-neutral prohibitions on a particular manner of speech” (for example, requiring a permit for the use of a sound truck), but gives a government official full discretion as to whether or not to grant a permit to any particular individual or group. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 764 (1988). Here, in contrast, the Current Executive Order does not give any official the discretion to decide whether to allow a particular gathering to occur; rather, it unequivocally bans all comparable gatherings of more than 10 people.
E. Plaintiffs’ State Law Claim Against the Governor in His Official Capacity is Barred by Eleventh Amendment Sovereign Immunity.
In support of their motion for a preliminary injunction and TRO, Plaintiffs allege that the Current Executive Order violates the free exercise and free speech provisions in the Illinois Constitution (Compl., Counts VII & VIII), but those claims fail for the same reasons as their federal counterparts. Plaintiffs also bring a state statutory claim alleging that the Current Executive Order violates the Illinois RFRA by “forsak[ing] the assembling of themselves together” and “substantially burden[ing] Plaintiffs’ exercise of religion” by “compel[ling] Plaintiffs to either change those beliefs or to act in contradiction to them,” and “forc[ing]
35

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 38 of 44 PageID #:386
Plaintiffs to choose between the teachings and requirements of their . . . beliefs.” (ECF No. 5, at 19-20 (citing 775 ILCS 35/5).16 Plaintiffs cannot succeed on their RFRA claim because it is barred by the Eleventh Amendment and the doctrine of sovereign immunity, and it also fails on the merits as a matter of law. See Cassell Opinion, at 26–31.
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. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97 (1984); 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).
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.
16 Plaintiffs also bring a federal statutory claim under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc-2000cc-5 (ECF No. 1, Count IX), but do not cite it as a basis for their motion.
36

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 39 of 44 PageID #:387
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’ claims 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 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
37

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 40 of 44 PageID #:388
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, federal 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 CV 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 CV 7596, 2004 WL 1093711, at *1, 3 (N.D. Ill. Apr. 30, 2004) (claims under Illinois Constitution barred by Eleventh Amendment). Judge Lee also considered this exact issue in Cassell and held that an identical claim under the Illinois Religious Freedom Restoration Act was expressly prohibited under the Pennhurst doctrine. Cassell, 2020 2020 WL 2112374 at *26-28 (“[T]he Eleventh Amendment almost certainly forecloses Plaintiffs’ state law claims here.”).
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.17 The Court need not address the merits of Plaintiffs’ requested relief under state law. In any event, Plaintiffs’ claim under the Illinois RFRA would still fail. Assuming, for the sake of argument, that the Current Executive Order does place a burden on Plaintiffs’ religious beliefs, this is not an undue burden, as previously explained. And even if the Court were to apply strict scrutiny in analyzing the RFRA claim, the Current Executive Order would pass strict scrutiny, as Judge Lee found in analyzing it under that standard. Cassell Opinion, at 26–31.
17 Plaintiffs cite (ECF No. 5 at 20) to what they refer to as “binding precedent” of the Seventh Circuit when interpreting the Illinois RFRA. However, neither of these cases interpreted the Illinois State law, but instead analyzed the federal Religious Freedom Restoration Act and the federal Religious Land Use and Institutionalized Persons Act. Civil Liberties for Urban Believers v. City of Chicago, 342 F. 3d 752, 758 (7th Cir. 2003); Kroger v. Bryan, 523 F. 3d 789, 798-99 (7th Cir. 2008).
38

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 41 of 44 PageID #:389
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 contend that claiming their First Amendment rights have been violated is sufficient to demonstrate irreparable harm. (ECF No. 5, at 27–28.) They fail to actually describe what harm they would incur absent an injunction, given the alternative forms of worship in which they have been engaged since the onset of the COVID-19 pandemic and the issuance of the prior stay-at-home orders.
While in-person services of more than 10 people have been restricted to curtail the spread of COVID-19, the practice of religion has not been. This is further evidenced by Plaintiff Elim Church’s homepage, which showcases two videos (one of which is titled “May 7, 2020 Prayer Message”), along with links to “video,” “live,” and “youtube.”18 The video link directs the user to video archives that date as far back as 2014, while the “youtube” link directs the user to a plethora of “live stream[s] ”by the Church and multiple pastors.19 The Church has been utilizing on-line platforms since long before the international pandemic. While perhaps not their preference, as cited above, on-line services remain meaningful in religious practice. The Church’s homepage provides a link to donate as well.20 In sum, Plaintiffs have provided insufficient conclusions in the place of the requisite showing of irreparable harm.
18 Elim Church, https://elimro.com/ (last visited May 8, 2020). 19 Elim Church, https://elimro.com/index.php/media-resorces/vide (last visited May 8, 2020); see also Elim Church, https://www.youtube.com/user/ElimRoChicago/videos (last visited May 8, 2020). 20 Elim Church, https://elimro.com/ (last visited May 8, 2020).
39

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 42 of 44 PageID #:390
III. The Harm to the State and the Public from a TRO Substantially Outweighs any Interim Harm to Plaintiffs Absent a TRO. The hardships to the public due to the COVID-19 pandemic are dire. Those hardships
outweigh any hardship to Plaintiffs in this case, especially considering that the Current Executive Order allows for religious services and the exercise of freedom of religion as long as social distancing is observed and gatherings do not exceed 10 people. (See ECF No. 1, Ex. H, at ¶ 5(f).) The public continues to be in grave danger, as Illinois reported 2,887 more cases of COVID-19 just yesterday.21 The national total number of deaths has climbed to 77,179 lives taken.22 Illinois reports 3,241total deaths.23 The courts have described the pandemic unambiguously as a highlyunusual 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
21 Illinois Department of Public Health, “Public Health of Officials Announce 2,887 New Cases of Coronavirus Disease,” Department of Public Health, (May 8, 2020) http://www.dph.illinois.gov/news/public-health-officials-announce-2887-new-cases-coronavirus-disease (last accessed May 8, 2020). 22 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 8, 2020). 23 State of Illinois, “State of Illinois Coronavirus (COVID-19) Response,” https://coronavirus.illinois.gov/s/ (last accessed May 8, 2020).
40

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 43 of 44 PageID #:391
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 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).
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 conduct worship services online, in drive-in gatherings, or in person with 10 parishioners at a time.
Balancing these same harms, Judge Lee explained that “[e]njoining the Order would not only risk the lives of the [church]’s members, it also would increase the risk of infections among their families, friends, co-workers, neighbors, and surrounding communities.” Op. at 35. He noted that the allowances in the Order made for the continued practice of religion “go a long way towards mitigating the harms Plaintiffs identify.” Op. at 36. He concluded that, “[t]aking into account COVID-19’s virulence and lethality, together with the State’s efforts to protect avenues for religious activity … equitable considerations, including the promotion of the public interest,
41

Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 44 of 44 PageID #:392

weigh heavily against the entry of the temporary restraining order and preliminary injunction that Plaintiffs seek.” Id. “Coupled with the relative weakness of Plaintiffs’ legal arguments, this is fatal to their motion.” Id.
CONCLUSION For all of these reasons, the Court should deny Plaintiffs’ motion for a temporary restraining order or a preliminary injunction.

Dated: May 9, 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

42

 
 Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 1 of 22 PageID #:400

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS Eastern Division

ELIM ROMANIAN PENTECOSTAL

)

CHURCH, LOGOS BAPTIST

)

MINISTRIES,

)

)

Plaintiff,

)

Case No. 1:20-cv-02782

)

v.

)

)

JAY ROBERT PRITZKER, in his

)

official capacity as Governor of the

)

State of Illinois,

)

)

Defendant.

)

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

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 2 of 22 PageID #:401 TABLE OF CONTENTS
(To be filed separately within 2 hours.)
ii

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 3 of 22 PageID #:402 TABLE OF AUTHORITIES
(To be filed separately within 2 hours.)
iii

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 4 of 22 PageID #:403
PLAINTIFFS’ REPLY IN SUPPORT OF TRO AND PRELIMINARY INJUNCTION In accordance with this Court’s Order (dkt.13), Plaintiffs, ELIM ROMANIAN
PENTECOSTAL CHURCH and LOGOS BAPTIST MINISTRIES, by and through the undersigned counsel, hereby their Reply in Support of Motion for Temporary Restraining Order and Preliminary Injunction.
INTRODUCTION In his Response Opposing Plaintiffs’ Motion for Temporary Restraining Order (dkt. 21, “TRO Response”), the Governor seemingly contends that COVID-19 empowers him to hit the pause button on the Constitution. (TRO Response at 1). The Constitution has no pause button and no temporary suspension clause. As the Sixth Circuit has stated twice in the last week, “[w]hile the law may take periodic naps during a pandemic, we will not let it sleep through one.” Roberts v. Neace, No. 20-5465, slip op. at 7 (6th Cir. May 9, 2020) (attached hereto as EXHIBIT A) (enjoining enforcement of COVID-19 restrictions on in-person worship services); Maryville Baptist Church, Inc. v. Beshear, No. 20-5427, 2020 WL 2111316, *4 (6th Cir. May 2, 2020) (enjoining enforcement of COVID-19 restrictions on drive-in worship services) (consolidated with Roberts for appeal). Indeed, though “[t]he COVID-19 pandemic has upended every aspect of our lives . . . constitutional rights still exist.” On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV264-JRW, 2020 WL 1820249, *8 (W.D. Ky. Apr. 11, 2020) (emphasis added). The Governor seems to have forgotten the First Amendment has no pause button—it endures today and is still “as necessary now as when the Mayflower met Plymouth Rock.” Id. Our commitment to our enduring freedoms depends on Article III courts preserving them as inviolate. Certainly, during times of national crisis, such as the current uncertainty arising from COVID-19, “the fog of public excitement obscures the ancient landmarks set up in our Bill of Rights.” American Communist

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 5 of 22 PageID #:404
Ass’n, C.I.O. v. Douds, 339 U.S. 382, 453 (1950) (Black, J., dissenting). But, where the fog of public excitement is at its apex, “the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly.” De Jonge v. Oregon, 299 U.S. 353, 365 (1937). Without doubt, “[t]herein lies the security of the Republic, the very foundation of constitutional government.” Id. Plaintiffs plead unto this Court to hold sacred that which so many have fought and died to achieve—an incredible experiment of liberty that has lit the world for over 250 years. For, “[i]f the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be discarded.” Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J., dissenting) (emphasis added).
SUPPLEMENTAL FACTS As the Court observed in today’s Order denying reassignment (dkt. 2), Plaintiffs “have raised . . . factual allegations regarding the size of the congregation and the physical size of the churches involved, along with their offer to maintain social distancing and personal hygiene procedures for their church services.” Indeed, since the Verified Complaint was filed, some of those allegations have materialized into additional verified facts, which Plaintiffs present here to supplement the Verified Complaint, in the attached Supplemental Declaration of Pastor Christian Ionescu in Support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (the “Ionescu Declaration”). As shown in the Ionescue Declaration, today Plaintiff Elim Church held a religious service on its premises (the “Sunday service”), as it had indicated to Governor Pritzker it would in its presuit Communication (dkt. 1-12), in which it requested that he permit the church to hold the service subject to strict social distancing and health precautions that the church indicated it would voluntarily undertake. (Ionescue Decl. ¶¶ 3–6.) Elim Church strictly complied with each of the 10
2

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 6 of 22 PageID #:405 safety points on page 3 of its letter to Governor Pritzker (Dkt. 1-12 at 3), and went even farther because it wanted to be beyond reproach, and because it cares deeply about the health and safety of its members and congregants. (Ionescue Decl. ¶¶ 4–5.) Even a cursory view of the sanctuary during the service would have shown the extensive measures taken by the church:
3

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 7 of 22 PageID #:406
(Ionescue Decl. ¶ 6(h), (i).) Elim Church held the Sunday service, however, under the cloud of interruption and
enforcement action by police under the authority of Governor Pritzker’s COVID-19 orders. (Ionescue Decl. ¶¶ 7–12.) The church’s concerns about being fined, arrested, hauled off to jail, or subjected to other punitive measures have interfered with and diminished its collective worship experience, to a much greater extent than COVID-19, and the precautionary measures it has voluntarily employed, ever could. (Ionescue Decl. ¶ 9.) This diminishment of their exercise of the their sincerely held beliefs will continue as long as Governor Pritzker’s orders disparately single out in-person religious services for more restrictive treatment. (Ionescue Decl. ¶¶ 8–12.) Nevertheless, the measures the church voluntarily took for this Sunday service, it is willing to voluntarily take again—and will take again. (Ionescue Decl. ¶ 10.)
LEGAL ARGUMENT I. THE GATHERING ORDERS SUBTANTIALLY BURDEN PLAINTIFFS’ FREE
EXERCISE RIGHTS. A. The Sixth Circuit, the Highest Federal Court to Address Similar COVID-19
Orders, Has TWICE Held That Similar Restrictions on Religious Gatherings Violate the Free Exercise Clause, Including Prohibitions on In-Person Gatherings Such as Those Prohibited Here. The Governor claims that certain district court orders enjoining enforcement of COVID19-executive orders restricting the exercise of religion are mere “outliers” unworthy of this Court’s consideration. (TRO Response at 23). The problem for the Governor is that the Sixth Circuit—the highest court to consider such restrictions—has conclusively determined that restrictions on drive-in and in-person worship services are a gross violation of the First Amendment and has enjoined the government from enforcement of such restrictions. Roberts, No. 20-5465, slip op. (6th Cir. May 9, 2020) (enjoining enforcement of COVID-19 restrictions on in-
4

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 8 of 22 PageID #:407
person worship services); Maryville Baptist Church, Inc., No. 20-5427, 2020 WL 2111316 (6th Cir. May 2, 2020) (enjoining enforcement of COVID-19 restrictions on drive-in worship services).
The Governor posits that the Sixth Circuit’s recent injunctions are uninstructive here because they pertain to only drive-in services, which the Governor contends are permissible. (TRO Response at 16-17). But, the Governor overlooked the Roberts Sixth Circuit opinion, which was handed down before the Governor’s Response was filed. In Roberts, the Sixth Circuit granted an injunction pending appeal prohibiting the Governor of Kentucky from treating religious gatherings—including in-person worship services—differently from other so-called “essential” businesses.
The Sixth Circuit noted that the Kentucky COVID-19 executive orders prohibiting religious gatherings “likely fall on the prohibited side of the line” that the Free Exercise Clause draws. Roberts, slip op. at 5. Indeed, “[a]s a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non-discriminatory law.” Id. As such, the Sixth Circuit held that the COVID-19 orders, similar to those at issue in the instant litigation, likely violate the First Amendment, and should be enjoined.
Just as Plaintiffs have requested here, the Kentucky church merely sought to be treated equally with similar non-religious gatherings that are not subject to the same outright prohibition— under threat of criminal sanction—as that imposed on churches. As the Sixth Circuit noted,
Keep in mind that the Church and its congregants just want to be treated equally. They don’t seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They do not ask to share a chalice. The Governor has offered no good reason for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same. Roberts, slip op. at 6 (emphasis added).
5

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 9 of 22 PageID #:408
Come to think of it, aren’t the two groups of people often the same people—going to work on one day and going to worship on another? How can the same person be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings? The distinction defies explanation, or at least the Governor has not provided one. (Id. (italics in original) (bold emphasis added)). Though Governor Pritzker asserts he is not hostile towards religious gatherings, his selfserving statements are irrelevant. “The constitutional benchmark is government neutrality, not government avoidance of bigotry.” (Roberts¸ slip op. at 7 (emphasis added) (internal quotation marks omitted). In so holding, the Sixth Circuit found that COVID-19 executive orders, similar if not identical to those at issue here, simply fail the constitutional standard. It therefore enjoined the Commonwealth of Kentucky from enforcing discriminatory prohibitions against religious gatherings. (Id.). B. Other Federal Courts Have Likewise Granted Blanket Injunctions Against
Prohibitions on Religious Gatherings. The Governor claims that the injunction issued in First Baptist Church v. Kelly, No. 201102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020) (granting injunction for in-person services) is “an outlier.” (TRO Response at 23). This is false. Indeed, as noted, a federal circuit court has already determined that the constitution forbids enforcement of COVID-19 orders as to both drivein and in-person religious gatherings. See supra Section I.A. And if that alone were not sufficient to eviscerate the Governor’s contention—which it is—the other federal courts to issue recent decisions on these restrictions similarly prohibited the government from enforcing restrictions on in-person worship services. On May 8, 2020, the United States District Courts for the Eastern and Western Districts of Kentucky held that prohibitions on religious gatherings (whether drive-in or in-person) simply do not pass muster under the First Amendment. See Maryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH-RSE, slip op. (W.D. Ky. May 8, 2020) [hereinafter
6

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 10 of 22 PageID #:409
Maryville W.D. Ky. (attached hereto as EXHIBIT B); Tabernacle Baptist Church, Inc. v. Beshear, No. 3:20-cv-00033-GFVT, slip op. (E.D. Ky. May 8, 2020) (attached hereto as EXHIBIT C).
In the case consolidated with Roberts before the Sixth Circuit, Maryville Baptist Church, Inc. v. Beshear, the Western District of Kentucky entered an order Friday granting an injunction pending appeal and a preliminary injunction prohibiting the enforcement of Kentucky’s COVID-19 orders against in-person worship services. No. 3:20-cv-278-DJH-RSE, slip op. at 1, 6 (W.D. Ky. May 8, 2020) (attached hereto as EXHIBIT B). The district court had previously denied the plaintiffs’ motion for temporary restraining order, 2020 WL 1909616 (W.D. Ky. April 18, 2020), but ruled for the plaintiffs Friday after finding the Kentucky Governor failed to meet his burden to prove narrow tailoring under the strict scrutiny standard. Maryville Baptist, W.D. Ky. slip op. at 4–6 (“The Governor fails, however, to present any evidence or even argument that there was no other, less restrictive, way to achieve the same goals.”) (“He still ‘has offered no good reason . . . for refusing to trust the congregants who promise to use care in worship in just the same way [he] trusts accountants, lawyers, and laundromat workers to do the same.’” (alteration in original)).
In Tabernacle, the Eastern District of Kentucky issued a temporary restraining order enjoining Kentucky from enforcing its COVID-19 orders prohibiting religious gatherings. Tabernacle, slip op. at 12. In that order, the court noted that—even in times of emergency—the First Amendment does not “mean something different because society is desperate for a cure or prescription.” Id., at 1. There, though the court noted that it was tasked with “identifying precedent in unprecedented times,” id. at 7, and that COVID-19 was a different yard stick. Id. However, the court noted precisely what Plaintiffs pointed out in their TRO motion here, namely that “even under Jacobsen, constitutional rights still exist.” Id. at 8 (quoting On Fire Christian Ctr, Inc v.
7

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 11 of 22 PageID #:410
Fischer, No. 3:20-cv-264-JRW, 2020 WL 1820248, *15 (W.D. Ky. Apr. 11, 2020) (emphasis added)). In fact, “while courts should refrain from second-guessing the efficacy of a state’s chosen protective measures” a government very well may “go so far beyond what was reasonably required for the safety of the public as to authorize or compel the courts to interfere.” Id. (quoting Jacobson v. Massachusetts, 197 U.S. 11, 28 (1905) (emphasis added)). The Governor’s actions here have transgressed that line. Indeed,
It follows that the prohibition on in-person services should be enjoined as well. . . . There is ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking. If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services, which, unlike the foregoing, benefit from constitutional protection. Id., at 10 (emphasis added). As Plaintiffs pointed out in their original TRO motion, the District of Kansas’s First Baptist opinion is particularly instructive here as well. The First Baptist court issued a TRO enjoining Kansas officials from enforcing the state’s discriminatory prohibition on religious gatherings and required the government to treat “religious” gatherings (worship services) the same as other similar gatherings that are permitted. See 2020 WL 1910021, at *6–7. The TRO specifically states that the government’s disparate treatment of religious gatherings is a violation of the Free Exercise Clause because it shows that “religious activities were specifically targeted for more onerous restrictions than comparable secular activities,” and that the churches had shown irreparable harm because they would “be prevented from gathering for worship at their churches” during the pendency of the executive order. Id. at *7–8 (emphasis added). In discussing the Kansas orders— which imposed a 10-person limit on in-person gatherings just as Governor Pritzker’s orders here— the court said that specifically singling out religious gatherings for disparate treatment while permitting other non-religious activities “show[s] that these executive orders expressly target
8

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 12 of 22 PageID #:411
religious gatherings on a broad scale and are, therefore, not facially neutral,” Id., at *7. In fact, much like here, “churches and religious activities appear to have been singled out among essential functions for stricter treatment. It appears to be the only essential function whose core purpose—association for the purpose of worship—had been basically eliminated.” Id. (emphasis added). Thus, the court found that Kansas should be enjoined from enforcing its disparate terms against churches.
As these cases demonstrate—contrary to Governor Pritzker’s argument—injunctions against COVID-19 prohibitions on religious gatherings are not “outliers,” but are instead the better-reasoned results reached by multiple district courts and twice by the Sixth Circuit. This Court should similarly hold. For “[h]istory reveals that the initial steps in the erosion of individual rights are usually excused on the basis of an ‘emergency’ or threat to the public. But the ultimate strength of our constitutional guarantees lies in the unhesitating application in times of crisis and tranquility alike.” United States v. Bell, 464 F.2d 667, 676 (2d Cir. 1972) (Mansfield, J., concurring) (emphasis added).
C. The Governor’s Notion of Content-Neutrality Is False as a Matter of Fact, and Irrelevant Under the Free Exercise Clause Because Content-Based Determinations Concern Plaintiffs’ Free Speech, Not Free Exercise, Claims.
The Governor contends that his GATHERING ORDERS pass the Free Exercise Clause test because they are “content-neutral.” (TRO Response at 18). As an initial matter, the Governor’s contention is wholly irrelevant in the Free Exercise Clause context. A content-neutrality analysis arises under Plaintiffs’ free speech, not free exercise claims. “Content-based laws—those that target speech on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling government interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) (emphasis added).
9

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 13 of 22 PageID #:412
“Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both distinctions are drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.” Id. at 2227 (emphasis added). Nowhere in the enormous body of federal jurisprudence on the Free Exercise Clause is a content-neutrality analysis to be found. The reason for that is simple: it deals with an entirely separate component of the First Amendment. The Governor’s initial contention can and should be dismissed out of hand.
Assuming arguendo that the Governor’s content-neutral analysis was applicable in the free exercise context—which it is not—it would be factually incorrect, as it blatantly misrepresents the GATHERING ORDERS. This Court need look no further than the text of the GATHERING ORDERS to determine that they are content-based restrictions on constitutionally protected liberties. The GATHERING ORDERS purport to prohibit “all public and private gatherings of any number of people,” except a religious gathering of no more than 10 people is permissible. (V.Compl. ¶¶ 39, 41, EX. H.) But, the State found 23 categories of exempted so-called “essential” businesses, including, inter alia, grocery stores, alcoholic beverage stores, cannabis stores, gas stations, hardware stores, law firms and professional businesses, labor unions, and hotels, that are not subject to a 10 person limitation. (V.Compl. ¶¶ 42, 43, EX. H.) Indeed, as this Court has found, a system of exemptions makes it likely that a law is content-based. See ACLU of Ill. v. White, 2009 WL 5166231, *4 (N.D. Ill. Dec. 23, 2009); see also H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 622 (6th Cir. 2009) (holding that a system where some forms of speech are exempted while others are not is content-based and subject to strict scrutiny). The State’s broad swath of exemptions for all but religious gatherings is textbook content discrimination and subject to strict scrutiny.
10

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 14 of 22 PageID #:413
D. The Governor Misapprehends the GATHERING ORDERS and Their Discriminatory Hostility to Religious Gatherings.
The Governor contends that the GATHERING ORDERS do not discriminate against religious gatherings because they apply “equally” to religious and non-religious gatherings alike. (TRO Response at 19). This is pure subterfuge and blatantly incorrect. The plain text of the GATHERING ORDERS dispels the Governor’s notion. While the Governor started with the general position that “all public and private gatherings [of] 50 or more people” were prohibited, and specifically included “faith-based events” in that prohibition (V.Compl. ¶¶ 30, 31, EX. C.), in the next breath, the Governor opened a broad category of exemptions for certain “essential” stores. (V.Compl. ¶ 32.) On March 20, the State enhanced the prohibitions by prohibiting “all public and private gatherings of any number of people.” (V.Compl. ¶ 34, EX. D.) Yet, in same text, the Governor created a massive hole of exemptions for the 23 categories of businesses that need not comply with the restrictions, including grocery stores, alcoholic beverage stores, hardware stores, cannabis stores, gas stations, law firms and professional businesses, labor unions, and hotels, and also including warehouse, supercenter, and ‘big box’ stores combining several categories, so long as they abided by social distancing “to the greatest extent feasible” and “where possible.” (Id.). Notably, every one of the exempt categories are non-religious gatherings while the prohibition on in-person religious gatherings remain prohibited. If that is equal treatment, the term has no meaning.
But, that is only half the story. Even now, with the aspirational Restore Illinois plan, which “can and will be updated” and is “subject to change” at any time and in the Governor’s discretion, the Governor only contemplates religious gatherings of more than 10 people in Phase 4, when and if Governor Pritzker determines it is appropriate to permit such gatherings. (V.Compl. ¶¶ 45–49, EX. J.) And, to have religious gatherings of more than 50 people, Plaintiffs’ churches must wait
11

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 15 of 22 PageID #:414
until “a vaccine is developed to prevent additional spread of COVID-19” or “a treatment option is readily available,” which the Governor has indicated can take from 12 to 18 months from now. (V.Compl. ¶¶ 48, 49 EX. J.). If that does not constitute an institutionalization of a constitutional pause button, then nothing ever would.
The GATHERING ORDERS’ purpose in treating religious gatherings differently is pure pretext because there is no evidence that religious gatherings “pose unique health risks that mass gatherings at commercial and other facilities do not,” First Baptist, 2020 WL 1910021, at *7, or “because the risks at religious gatherings uniquely cannot be adequately mitigated with safety protocols” such as those at liquor stores, cannabis stores, or other “essential” stores that may continue to operate without the 10-person limitation. Id. Treating Plaintiffs and other religious gatherings differently is a sham. The Constitution demands more. So, too, should this Court.
E. The Governor’s Reference to an “Undue Burden” Standard Is Wholly Inapplicable to Plaintiffs’ Free Exercise Claims, as the Free Exercise Clause Prohibits a Substantial, Not Undue, Burden on Plaintiffs’ Exercise of Religion.
Strangely, the Governor contends that the GATHERING ORDERS do not violate the Free Exercise Clause because they are not an “undue burden.” (TRO Response at 24). But that is not the applicable standard. The “undue burden test [is] unique to abortion-related regulations.” Victoria W. v. Larpenter, 205 F. Supp. 2d 580, 593 n.24 (E.D. La. 2002). See also Compassion in Dying v. Washington, 79 F.3d 790, 843 (9th Cir. 1996) (Beezer, J., dissenting) (“the undue burden test is unique to the abortion right”) It is wholly inapplicable to determinations of claims under the Free Exercise Clause.
The question relevant to Plaintiffs’ claims is whether the GATHERING ORDERS impose a substantial burden on Plaintiffs’ sincerely held religious beliefs. They do. A “substantial burden” exists when the government “necessarily bears direct, primary, and fundamental
12

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 16 of 22 PageID #:415
responsibility for rendering religious exercise effectively impracticable,” Civil Liberties for Urban Believers v. Chicago, 342 F.3d 752, 760-61 (7th Cir. 2003), or when “it puts substantial pressure on an adherent to modify his behavior or violate his beliefs.” Koger v. Bryan, 523 F.3dd 789,799 (7th Cir. 2008). The GATHERING ORDERS impose such a substantial burden on Plaintiffs’ religious beliefs. (V.Compl. ¶ 217 (alleging that the GATHERING ORDERS, substantially burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs in the commands of Scripture and Defendant’s imposed value system)); (id. ¶ 89 (the GATHERING ORDERS put substantial pressure on Plaintiffs’ to violate their sincerely held religious beliefs)). II. THE GATHERING ORDERS INFRINGE PLAINTIFFS’ FREE SPEECH RIGHTS.
A. An Order That Says “at No Time, in No Place, and in No Manner” May More Than 10 Individuals Gather for Worship Simply Cannot Be Considered a Reasonable Time, Place, and Manner Restriction.
The Governor contends that his GATHERING ORDERS are merely a reasonable time, place, and manner restriction on Plaintiffs’ constitutionally protected expression.1 But, the Governor’s notion that a total prohibition on religious sermons, given to in-person religious gatherings and expressed during a worship service that is completely prohibited under the GATHERING ORDERS is a reasonable time, place, and manner restriction is a constitutional fallacy. Indeed, binding precedent requires this Court reject the Governor’s contention. See, e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 443 (2002) (holding that a
1 Plaintiffs’ sermons at their religious gatherings (worship services) are protected speech under the First Amendment. See, e.g., Cohen v. California, 403 U.S. 15, 25 (1971) (noting that “sermons,” such as those Plaintiffs wish to give at their religious gatherings “come under the protection of free speech”). The Governor tacitly concedes that his GATHERING ORDERS apply to protected speech and expression. (TRO Response at 31-32).
13

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 17 of 22 PageID #:416
government regulation warrants lesser scrutiny “if it is a time, place, and manner regulation and not a ban” (emphasis added)). See also Frisby v. Schultz, 487 U.S. 474, 489 (1988) (“complete bans” are “not a constitutional time, place and manner regulation of speech” (White, J., concurring)); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 6-47 (1986) (holding that only those speech-restrictive regulations that are not complete bans are subject to a time, place, and manner analysis). Such is not the case here.
Here, the GATHERING ORDERS have imposed a total ban (V. Compl. ¶39), and thus necessarily cannot be a time, place, and manner restriction. If the government could ban all speech, in all places, and at any time (as it has purported to do here with only religious gatherings), how in the world of constitutional logic could that be permissible? The answer to that dispositive question in simple: it cannot. See, e.g., Zebulon Enter., Inc. v. DuPage Cnty., 2020 WL 1888928, 3 (N.D. Ill. Apr. 16, 2020) (noting that a “total ban” is not subject to a time, place, and manner regulation); BBL, Inc. v. City of Angola, No. 1:13-v-76-RLM, 2014 WL 26903, *12 (N.D. Ind. Jan. 2, 2014) (“An ordinance that results in a total ban is invalid.”); Chicago Joe’s Tea Room, LLC v. Vill.. of Broadview, No. 07 C 2680, 2009 WL 3151856, *2 (N.D. Ill. Sept. 25, 2009) (noting that Supreme Court precedent that “an outright ban requires more than a time, place, and manner analysis” (emphasis added)); Illinois One News, Inc. v. City of Marshall, 2006 WL 449018, *11 (S.D. Ill. Feb. 22, 2006) (“A regulation that appears on its face to be a time place and manner restriction but that in practice is effectively a total ban will receive strict scrutiny.”).
B. Contrary to the Governor’s Contention, Total Prohibitions on Speech Are a Prior Restraint.
The Governor contends that the GATHERING ORDERS do not represent a prior restraint because, according to the Governor, the GATHERING ORDERS “do not restrain any speech.” (TRO Response at 34). This is demonstrably false. As numerous federal courts—including this
14

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 18 of 22 PageID #:417
Court—have recognized, total prohibitions on speech represent prior restraints. See, e.g., Int’l Union of Operating Eng’rs, Local 250, AFL-CIO v. Vill. of Oakland Park, 139 F. Supp. 2d 950, 964 (N.D. Ill. 2001) (noting that a law that “completely prohibits” speech “constitutes a prior restraint”). See also Steakhouse, Inc. v. City of Raleigh, 166 F.3d 634, 638 (4th Cir. 1999) (holding that total prohibitions “act[] as such a [prior] restraint”); R.W.B. of Riverview, Inc. v. Stemple, 111 F. Supp. 2d 748, 756 (S.D.W.V. 2000) (“total bans” are an unconstitutional prior restraint); see also Howard v. City of Jacksonville, 109 F. Supp. 2d 1360, 1364 (M.D. Fla. 2000) (“This Court also finds that . . . moratoria are governed by prior restraint analysis in the same manners as permitting schemes.”); D’Ambra v. City of Providence, 21 F. Supp. 2d 106, 113–14 (D.R.I. 1998) (moratorium on protected expression that includes no indication of ending is a complete prohibition and invalid prior restraint); ASF, Inc. v. City of Seattle, 408 F. Supp. 2d 1102, 1108 (W.D. Wash. 2005) (total prohibitions on protected expression fail prior restraint analysis).
More importantly for this Court’s analysis, however, is that the Seventh Circuit dictates that this Court find that complete prohibitions on expression—such as those at issue in the GATHERING ORDERS—are a classic prior restraint. See, e.g., Int’l Soc’y for Krishna Consciousness v. Rochford, 585 F.2d 262, 269 (7th Cir. 1978) (noting that where the government’s restriction amounts to “the equivalent of a total prohibition of the exercise of constitutionally guaranteed rights,” “[s]uch a limitation operates as a prior restraint.” (emphasis added)). See also Morales v. Schmidt, 489 F.2d 1335, 134-47 (7th Cir. 1973) (Stevens, J., dissenting) (“It involves a total prohibition [and] thus represents an example of a prior restraint.”).
The GATHERING ORDERS prohibit all speech in a religious gathering of more than 10 people. Such orders thus constitute a complete prohibition on such speech by pastors at such gatherings. The GATHERING ORDERS are thus presumptively unconstitutional under the First
15

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 19 of 22 PageID #:418
Amendment, and this Court should enjoin and restrain the Governor from enforcing his unconstitutional prohibitions on such speech. The First Amendment demands nothing less. III. THE GATHERINGS ORDERS UTTERLY FAIL THE REQUIRED AND MOST
DEMANDING STRICT SCRUTINY TEST. A. The Governor Misapprehends the Strict Scrutiny Standard and Faults
Plaintiffs for Not Satisfying His Own Burden. The Governor contends that his GATHERING ORDERS pass strict scrutiny because “Plaintiffs” “have no idea whether the measures they tout that were adopted in Texas, Florida, Indiana, Arizona, and Ohio will be sufficient.” (TRO Response at 26 (emphasis added)). This fails for two reasons. First, it is not Plaintiffs responsibility to demonstrate that the Governor’s GATHERING ORDERS are the least restrictive means. That burden is the Governor’s, and his alone. As the Supreme Court has held: “the burdens at the preliminary injunction stage track the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). As such, on a PI motion, the government—not the movant—bears the burden of proof on narrow tailoring, because the government bears that burden at trial. See Ashcroft, 542 U.S. at 665 (on PI motion, “the burden is on the government to prove that the proposed alternatives will not be as effective as the challenged statute.” (emphasis added)). The State indisputably bears the burden of proving narrow tailoring at trial. See, e.g., United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.”); id. at 2540 (“To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” (emphasis added)). Thus, the
16

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 20 of 22 PageID #:419
State also bears—and falls woefully short of meeting—the burden of proving narrow tailoring here. See Gonzales, 546 U.S. at 429; Ashcroft, 542 U.S. at 665.
B. Theoretical, Non-Record References in Counsel’s Briefs Do Not and Cannot Satisfy the Governor’s Burden to Demonstrate That Other Less-Restrictive Alternatives Were Tried and Failed, or Considered and Ruled out for Good Reason.
The second reason the Governor’s response fails as a matter of law is because his counsel’s unsupported statements in the record do not count. As a matter of law, “arguments in a Government brief, unsupported by documentary evidence, are not evidence.” United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007) (emphasis added). See also United States v. AdriatioFernandez, 498 F. App’x 596, 599 (7th Cir. 2012) (“A lawyer’s unsupported statements are not evidence.”). As a matter of black letter law, statement of counsel are plainly insufficient to constitute evidence in this matter. Indeed, “[m]ere assertions alone by counsel . . . do not constitute any evidence.” United States v. Robbins, 197 F.3d 829, 843 (7th Cir. 1999) (emphasis added). See also Moore v. Pipefitters Ass’n Local Union 596, U.A., 306 F.R.D. 187, 193 (N.D. Ill. 2014) (“Unsupported statements in briefs are not evidence.”); MB Fin. Bank, N.A. v. Walker, 741 F. Supp. 912, 916 (N.D. Ill. 2010) (“Unsupported statements in briefs are not evidence and do not count.” (emphasis added)).
To attempt to satisfy its burden (a burden the Governor erroneously attempts to foist on Plaintiffs), the Governor merely asserts that he should not be required to “knowingly accept the inevitable illness and death of residents in the midst of a pandemic.” (TRO Response at 27). But, there are no affidavits, no record evidence, and nothing that supports any conclusion that less restrictive alternatives would bring about the Governor’s feigned scenario. In fact, the Governor’s response amounts to little more than ipse dixit, which simply does not count. As this Court said in Moore v. Pipefitters Ass’n, 306 F.R.D. 187, 193 (N.D. Ill. 2014), where, as here,
17

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 21 of 22 PageID #:420
“[t]here is nothing in the motion . . . beyond [counsel’s] ipsi dixit. That is not enough. Unsupported statements in briefs are not evidence.” (emphasis added). IV. “WORSHIP AS I TELL YOU AND PERMIT YOU TO WORSHIP” IS NOT THE
ROLE OF THE GOVERNMENT AND IS, ITSELF, IRREPARABLE HARM. The Governor contends that Plaintiffs cannot suffer irreparable harm here because “alternative forms of worship” are available under the GATHERING ORDERS. This is offensive on its face, and wholly irrelevant under the Constitution. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added). Here, the Governor has purported to inform Plaintiffs how, when, and in what manner they may worship the Lord. If this is not a government prescription of orthodoxy, then nothing qualifies. Indeed, the Governor has taken “upon [himself] authority to prescribe what shall be orthodox” in Plaintiffs’ religious services, Catholic League for Religious and Civil Rights v. City and Cnty. of San Franscisco, 624 F.3d 1043, 1059 (9th Cir. 2010), and that is plainly unconstitutional under the First Amendment. See Hefferman v. City of Patterson, 136 S. Ct. 1412, 1417 (2016) (“The basis constitutional requirement reflects the First Amendment’s hostility to government action that prescribes what shall be orthodox.”). The Governor’s orders have crossed the line, and it is incumbent on this Court to remedy their excess. The GATHERING ORDERS impose irreparable harm by imposing the State’s prescrbed method of worship on Plaintiffs and their religious beliefs. The TRO should issue.
CONCLUSION For all of the foregoing reasons and for those outlined in Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, Plaintiffs respectfully request that the Court issue
18

Case: 1:20-cv-02782 Document #: 25 Filed: 05/10/20 Page 22 of 22 PageID #:421

the TRO and PI as set forth in the Prayer for Relief in Plaintiffs’ Verified Complaint (V.Compl. at

40–43.)

Respectfully submitted,

John W. Mauck Ill. Bar No. 179732
Sorin A. Leahu Ill. Bar No. 6315515
Mauck & Baker, LLC 1 N. LaSalle Street, Suite 600 Chicago, IL 60602 312-726-1243 Jmauck@mauckbaker.com Sleahu@mauckbaker.com

/s/ Horatio G. Mihet Mathew D. Staver* Horatio G. Mihet* Roger K. Gannam* Daniel J. Schmid* LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 Phone: (407) 875-1776 Facsimile: (407) 875-0770 Email: court@lc.org hmihet@lc.org rgannam@lc.org dschmid@lc.org

*Pro hac vice applications pending

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of May, 2020, I caused a true and correct copy of the

foregoing to be electronically filed with this Court. Service will be effectuated on all counsel of

record via this Court’s ECF/electronic notification system.

/s/ Daniel J. Schmid Daniel J. Schmid

19

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-1dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0112o0off1122PPaagPgeae:gI1DeI#D:4#2:2294 (1 of 12)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: May 09, 2020

Mr. Wesley Warden Duke Mr. Jeffrey C. Mando Mr. Steven Travis Mayo Mr. Christopher David Wiest

Re: Case No. 20-5465, Theodore Roberts, et al v. Robert Neace, et al Originating Case No.: 2:20-cv-00054
Dear Counsel, The Court issued the enclosed Order today in this case.
Sincerely yours,

cc: Mr. Thomas Bernard Bruns Mr. Robert R. Carr Mr. Barry Lee Dunn Mr. Marc Griffin Farris Ms. Jennifer H. Langen Mr. David Thomas Lovely Mr. Taylor Allen Payne Mr. Robert Albert Winter Jr.
Enclosure

s/Laura A. Jones for Robin Johnson Case Manager Direct Dial No. 513-564-7039

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-2dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0222o0off1122PPaagPgeae:gI1DeI#D:4#2:3295 (2 of 12)

No. 20-5465

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

THEODORE JOSEPH ROBERTS, RANDALL

)

DANIEL, SALLY O’BOYLE, on behalf of

)

themselves and all others similarly situated,

)

)

Plaintiffs-Appellants,

)

)

v.

)

)

ROBERT NEACE, in his official capacity as Boone )

County Attorney, ANDREW G. BESHEAR, in his )

official capacity as Governor, ERIC

)

FRIEDLANDER, in his official capacity as Acting )

Secretary of the Cabinet for Health and Family

)

Services,

)

)

Defendants-Appellees.

)

)

FILED
May 09, 2020 DEBORAH S. HUNT, Clerk
O R D E R

Before: SUTTON, McKEAGUE, and NALBANDIAN, Circuit Judges. PER CURIAM. Three congregants of Maryville Baptist Church wish to attend in-person worship services this Sunday, May 10. By order of the Kentucky Governor, however, they may not attend “faith-based” “mass gatherings” through May 20. Claiming that this limitation on corporate worship violates the free-exercise protections of the First and Fourteenth Amendments of the United States Constitution, the congregants seek emergency relief barring the Governor and other officials from enforcing the ban against them. The Attorney General of the Commonwealth supports their motion as amicus curiae. The Governor and other officials oppose the motion.

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-2dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0332o0off1122PPaagPgeae:gI2DeI#D:4#2:4296 (3 of 12) No. 20-5465 -2-
Governor Beshear has issued two pertinent orders arising from the COVID-19 pandemic. The first order, issued on March 19, prohibits “[a]ll mass gatherings,” “including, but not limited to, community, civic, public, leisure, faith-based, or sporting events.” R. 1-4 at 1. It excepts “normal operations at airports, bus and train stations, . . . shopping malls and centers,” and “typical office environments, factories, or retail or grocery stores where large numbers of people are present, but maintain appropriate social distancing.” Id.
The second order, issued on March 25, requires organizations that are not “life-sustaining” to close. R. 1-7 at 2. The order lists 19 broad categories of life-sustaining organizations and over a hundred sub-categories spanning four pages. Among the many exempt entities are laundromats, accounting services, law firms, hardware stores, airlines, mining operations, funeral homes, landscaping businesses, and grocery stores. Religious organizations do not count as “lifesustaining,” except when they provide “food, shelter, and social services.” Id. at 3.
On April 12, Maryville Baptist Church held an Easter service. Some congregants went into the church. Others parked their cars in the church’s parking lot and listened to the service over a loudspeaker. Kentucky State Police arrived in the parking lot and issued notices to the congregants that their attendance, whether in the church or outdoors, amounted to a criminal act. The officers recorded congregants’ license plate numbers and sent letters to vehicle owners requiring them to self-quarantine for 14 days or be subject to further sanction.
Theodore Joseph Roberts, Randall Daniel, and Sally O’Boyle all attended this Easter service, and they all complied with the State’s social-distancing and hygiene requirements during it. At some point during the service, the state police placed attendance-is-criminal notices on their cars. In response, the three congregants sued Governor Beshear, another state official, and a

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-2dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0442o0off1122PPaagPgeae:gI3DeI#D:4#2:5297 (4 of 12) No. 20-5465 -3-
county official, claiming that the orders and their enforcement actions violate their free-exercise and interstate-travel rights under the U.S. Constitution.
The district court denied relief on the free-exercise claim and preliminarily enjoined Kentucky from enforcing its ban on interstate travel. The congregants appealed. They asked the district court to grant an injunction pending appeal on the free-exercise claim, but the court refused. The congregants now seek an injunction pending appeal based on their free-exercise claim.
Two other cases, challenging the same ban, have been making their way through the federal district courts of Kentucky. In contrast to the district court in this case, they both preliminarily granted relief to the claimants based on the free-exercise claim. On May 8, a district court from the Western District of Kentucky issued an order preliminarily enjoining the Governor from enforcing the orders’ ban on in-person worship with respect to the same church at issue in our case. Maryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH-RSE (W.D. Ky. May 8, 2020). That same day, a district court from the Eastern District of Kentucky reached the same conclusion in an action involving a different church. Tabernacle Baptist Church, Inc. of Nicholasville, Kentucky v. Beshear, N. 3:20-cv-00033-GFVT (E.D. Ky. May 8, 2020). In doing so, it observed that “the constitutionality of these governmental actions will be resolved at the appellate level, at which point the Sixth Circuit will have the benefit of the careful analysis of the various district courts, even if we disagree.” Id. at 5.
This is not our first look at the issues. Last week, we granted relief in the case from the Western District of Kentucky with respect to drive-in services and urged the district court and parties to prioritize resolution of the more difficult in-person aspects of the case. Maryville Baptist Church, Inc. v. Beshear, -- F.3d --, 2020 WL 2111316 (6th Cir. May 2, 2020). We are grateful for

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-2dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0552o0off1122PPaagPgeae:gI4DeI#D:4#2:6298 (5 of 12) No. 20-5465 -4-
their input. In assessing today’s motion for emergency relief, we incorporate some of the reasoning (and language) from our earlier decision.
We have jurisdiction over this appeal. “Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions” are immediately appealable. 28 U.S.C. § 1292(a)(1). Under the circumstances, this order operates as the denial of an injunction. And no one can fairly doubt that this appeal will “further the statutory purpose of permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981). At least four more worship services are scheduled on the Sundays and Wednesdays between today and May 20, when the Governor has agreed to permit places of worship to reopen. Lost time means lost rights.
We ask four questions in evaluating whether to grant a stay pending appeal: Is the applicant likely to succeed on the merits? Will the applicant be irreparably injured absent a stay? Will a stay injure the other parties? Does the public interest favor a stay? Nken v. Holder, 556 U.S. 418, 434 (2009).
Likelihood of success. The Governor’s restriction on in-person worship services likely “prohibits the free exercise” of “religion” in violation of the First and Fourteenth Amendments. U.S. Const. amends. I, XIV; Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). On one side of the line, a generally applicable law that incidentally burdens religious practices usually will be upheld. See Emp’t Div., Dep’t of Human Res. Of Oregon v. Smith, 494 U.S. 872, 878–79 (1990). On the other side of the line, a law that discriminates against religious practices usually will be invalidated because it is the rare law that can be “justified by a compelling interest and is narrowly tailored to advance that interest.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 553 (1993).

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-2dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0662o0off1122PPaagPgeae:gI5DeI#D:4#2:7299 (6 of 12) No. 20-5465 -5-
These orders likely fall on the prohibited side of the line. Faith-based discrimination can come in many forms. A law might be motivated by animus toward people of faith in general or one faith in particular. Id. A law might single out religious activity alone for regulation. Hartmann v. Stone, 68 F.3d 973, 979 (6th Cir. 1995). Or a law might appear to be generally applicable on the surface but not be so in practice due to exceptions for comparable secular activities. See Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012); see also Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365–67 (3d Cir. 1999).
Were the Governor’s orders motivated by animus toward people of faith? We don’t think so. The initial enforcement of the orders at Maryville Baptist Church no doubt seemed discriminatory to the congregants. But we don’t think it’s fair at this point and on this record to say that the orders or their manner of enforcement turned on faith-based animus.
Do the orders single out faith-based practices for special treatment? We don’t think so. It’s true that they prohibit “faith-based” mass gatherings by name. R. 1-4 at 1. But this does not suffice by itself to show that the Governor singled out faith groups for disparate treatment. The order lists many other group activities, and we accept the Governor’s submission that he needed to mention worship services by name because there are many of them, they meet regularly, and their ubiquity poses material risks of contagion.
Do the four pages of exceptions in the orders, and the kinds of group activities allowed, remove them from the safe harbor for generally applicable laws? We think so. As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, nondiscriminatory law. Ward, 667 F.3d at 738. “At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-2dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0772o0off1122PPaagPgeae:gI6DeI#D:4#2:8300 (7 of 12) No. 20-5465 -6-
generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny.” Id. at 740.
The Governor insists at the outset that there are “no exceptions.” ROA (20-5427) 13-1 at 25. But that is word play. The orders allow “life-sustaining” operations and don’t include worship services in the definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for “lifesustaining” businesses allows law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of the other services.
Keep in mind that the Church and its congregants just want to be treated equally. They don’t seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They do not ask to share a chalice. The Governor has offered no good reason for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.
Come to think of it, aren’t the two groups of people often the same people—going to work on one day and going to worship on another? How can the same person be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings? The distinction defies explanation, or at least the Governor has not provided one.

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-2dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0882o0off1122PPaagPgeae:gI7DeI#D:4#2:9301 (8 of 12) No. 20-5465 -7-
No doubt, some groups in some settings will fail to comply with social-distancing rules. If so, the Governor is free to enforce the social-distancing rules against them for that reason and in that setting, whether a worship setting or not. What he can’t do is assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings. We have plenty of company in ruling that at some point a proliferation of unexplained exceptions turns a generally applicable law into a discriminatory one. See, e.g., Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 165–70 (3d Cir. 2002); Fraternal Order of Police, 170 F.3d at 365; see also Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 196–98 (2d Cir. 2014).
We don’t doubt the Governor’s sincerity in trying to do his level best to lessen the spread of the virus or his authority to protect the Commonwealth’s citizens. See Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905). And we agree that no one, whether a person of faith or not, has a right “to expose the community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944). But restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom. Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.
Nor does it make a difference that faith-based bigotry did not motivate the orders. The constitutional benchmark is “government neutrality,” not “governmental avoidance of bigotry.” See Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1260 (10th Cir. 2008). A law is not neutral and generally applicable unless there is “neutrality between religion and non-religion.” Hartmann,

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-2dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0992o0off1122PPaagPgeae:gI8DeI#D:4#3:0302 (9 of 12) No. 20-5465 -8-
68 F.3d at 978. And a law can reveal a lack of neutrality by protecting secular activities more than comparable religious ones. See id. at 979; Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1233–35, 1234 n.16 (11th Cir. 2004); see also Shrum v. City of Coweta, 449 F.3d 1132, 1145 (10th Cir. 2006) (“[T]he Free Exercise Clause is not confined to actions based on animus.”).
All of this requires the orders to satisfy the strictures of strict scrutiny. They cannot. No one contests that the orders burden sincere faith practices. Faith plainly motivates the worship services. And no one disputes the Church’s sincerity. Orders prohibiting religious gatherings, enforced by police officers telling congregants they violated a criminal law and by officers taking down license plate numbers, will chill worship gatherings.
At the same time, no one contests that the Governor has a compelling interest in preventing the spread of a novel, highly contagious, sometimes fatal virus. The Governor has plenty of reasons to try to limit this contagion, and we have no doubt he is trying to do just that.
The question is whether the orders amount to “the least restrictive means” of serving these laudable goals. That’s a difficult hill to climb, and it was never meant to be anything less. See Lukumi, 508 U.S. at 546. There are plenty of less restrictive ways to address these public-health issues. Why not insist that the congregants adhere to social-distancing and other health requirements and leave it at that—just as the Governor has done for comparable secular activities? Or perhaps cap the number of congregants coming together at one time? If the Commonwealth trusts its people to innovate around a crisis in their professional lives, surely it can trust the same people to do the same things in the exercise of their faith. The orders permit uninterrupted functioning of “typical office environments,” R. 1-4 at 1, which presumably includes business meetings. How are in-person meetings with social distancing any different from in-person church

CasCea1se:2:01-:c2v0--0Cc0va1-s05e26:7-2N80T2-5D4Do6co5ucmumeDneotnc#tu:2m265-e1-n1t:FF3ii1llee-dd2:0055/F/01i9l0e//2d20:00P5P/a0ag9ge/e21010200ooff112P2PagaPeg:ae9gIDeI#D:4#3:1303(10 of 12) No. 20-5465 -9-
services with social distancing? Permitting one but not the other hardly counts as no-more-thannecessary lawmaking.
Sure, the Church might use Zoom services or the like, as so many places of worship have decided to do over the last two months. But who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when “two or three gather in my Name,” Matthew 18:20, or what it means when “not forsaking the assembling of ourselves together,” Hebrews 10:25; see also On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264-JRW, 2020 WL 1820249, at *7–8 (W.D. Ky. Apr. 11, 2020).
As individuals, we have some sympathy for Governor DeWine’s approach—to allow places of worship in Ohio to hold services but then to admonish all of them (we assume) that it’s “not Christian” to hold in-person services during a pandemic. Doral Chenoweth III, Video: Dewine says it’s “not Christian” to hold church during coronavirus, Columbus Dispatch, April 1, 2020. But the Free Exercise Clause does not protect sympathetic religious practices alone. And that’s exactly what the federal courts are not to judge—how individuals comply with their own faith as they see it. Smith, 494 U.S. at 886–87.
The Governor suggests that the explanation for these groups of people to be in the same area—intentional worship—creates greater risks of contagion than groups of people, say, in an office setting or an airport. But the reason a group of people go to one place has nothing to do with it. Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there. So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another for similar lengths of time? It’s not as if law firm office meetings and gatherings at airport terminals always take less time than worship

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-2dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0112110ooff11P22aPgaePg:ae1gI0DeI#D:4#3:2304(11 of 12) No. 20-5465 -10-
services. If the problem is numbers, and risks that grow with greater numbers, there is a straightforward remedy: limit the number of people who can attend a service at one time. All in all, the Governor did not customize his orders to the least restrictive way of dealing with the problem at hand.
Other factors. Preliminary injunctions in constitutional cases often turn on likelihood of success on the merits, usually making it unnecessary to dwell on the remaining three factors. City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam). Just so here. The prohibition on attending any worship service through May 20 assuredly inflicts irreparable harm by prohibiting them from worshiping how they wish. See Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001). As for harm to others, an injunction appropriately permits religious services with the same risk-minimizing precautions as similar secular activities, and permits the Governor to enforce social-distancing rules in both settings. As for the public interest, treatment of similarly situated entities in comparable ways serves public health interests at the same time it preserves bedrock free-exercise guarantees. See Bays v. City of Fairborn, 668 F.3d 814, 825 (6th Cir. 2012).
In the week since our last ruling, the Governor has not answered our concerns that the secular activities permitted by the order pose the same public-health risks as the kinds of in-person worship barred by the order. As before, the Commonwealth remains free to enforce its orders against all who refuse to comply with social-distancing and other generally applicable public health imperatives. All this preliminary injunction does is allow people—often the same people— to seek spiritual relief subject to the same precautions as when they seek employment, groceries, laundry, firearms, and liquor. All of us can agree that it’s not easy to decide what is Caesar’s and what is God’s in the context of a pandemic that has different phases and afflicts different parts of

CasCea1se:2:01-:c2v0-C-0c0av1s-e05:2627-N08T-25D4D6o5coucmumDeneotnc#tu:2m26e5-n1-t1: 3FF1iillee-2dd:0055F//0i1l9e0/d/22:0005PP/0aa9gg/e2e0112220ooff11P22aPgaePg:ae1gI1DeI#D:4#3:3305(12 of 12) No. 20-5465 -11-
the country in different ways. But at this point and in this place, the unexplained breadth of the ban on religious services, together with its haven for numerous secular exceptions, cannot co-exist with a society that places religious freedom in a place of honor in the Bill of Rights: the First Amendment.
The plaintiffs’ motion for an injunction pending appeal is GRANTED. The Governor and the other defendants are enjoined, during the pendency of this appeal, from enforcing orders prohibiting in-person services at the Maryville Baptist Church if the Church, its ministers, and its congregants adhere to the public health requirements mandated for “life-sustaining” entities.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

Case 3:20-cv-00278-DJH-RSE Document 35 Filed 05/08/20 Page 1 of 6 PageID #: 575 Case: 1:20-cv-02782 Document #: 25-2 Filed: 05/10/20 Page 1 of 6 PageID #:434

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MARYVILLE BAPTIST CHURCH, INC. and DR. JACK ROBERTS,

Plaintiffs,

v.

Civil Action No. 3:20-cv-278-DJH-RSE

ANDY BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky,

Defendant.

* * * * *

ORDER

The Court previously denied the motion of Plaintiffs Maryville Baptist Church and Jack

Roberts for a temporary restraining order preventing Governor Andy Beshear from enforcing a

ban on mass gatherings as it applied to church services. (Docket No. 9) Plaintiffs appealed the

Court’s ruling, and the Sixth Circuit has since granted in part Plaintiffs’ motion for an injunction

pending appeal. Maryville Baptist Church, Inc. v. Beshear, No. 20-5427, 2020 U.S. App. LEXIS

14213 (6th Cir. May 2, 2020). The Sixth Circuit, noting that the Governor had not asserted

sovereign immunity, enjoined the Governor from enforcing the ban as to drive-in church services

but left for this Court to decide whether the ban was permissible as applied to in-person services.

See id. at *8-*9, *15-*16. After briefing was complete, as the Court finalized its decision on that

issue, the Governor filed a motion to dismiss, asserting sovereign immunity for the first time in

this litigation. (D.N. 33) As explained below, the Court finds that Plaintiffs would likely succeed

on the merits of their claim under the Kentucky Religious Freedom Restoration Act (KRFRA). In

the alternative, the Court finds that Plaintiffs have a substantial likelihood of success on the merits

of their constitutional claims. The Court will therefore grant the remainder of Plaintiffs’ motion

for injunction pending appeal.

1

Case 3:20-cv-00278-DJH-RSE Document 35 Filed 05/08/20 Page 2 of 6 PageID #: 576 Case: 1:20-cv-02782 Document #: 25-2 Filed: 05/10/20 Page 2 of 6 PageID #:435
I. Plaintiffs assert violations of the First Amendment and KRFRA arising from orders issued by the Governor and state health officials in response to the COVID-19 pandemic. (D.N. 1) The orders ban “mass gatherings,” defined as “any event or convening that brings together groups of individuals.” (D.N. 1-5, PageID # 66) This restriction includes, “but [is] not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” (Id.) The ban on mass gatherings is consistent with guidance from the Centers for Disease Control and Prevention that “COVID-19 spreads mainly among people who are in close contact with each other (within about 6 feet) for a prolonged period” and may be spread by individuals who do not show symptoms of illness. (D.N. 31-2, PageID # 453 (affidavit of Kentucky Public Health Commissioner Steven Stack, M.D.)) Plaintiffs maintain that they have required, and would continue to require, social-distancing and hygiene measures for individuals attending in-person services at the church.1 (D.N. 1, PageID # 17) The parties repeatedly denied any need for discovery in this matter. Nor did either side seek an evidentiary hearing or oral argument on Plaintiffs’ motions. The Court directed the parties to confer regarding a set of stipulated facts. The stipulation filed (D.N. 29) is of minimal value. As a result, the factual basis for the analysis below is severely limited.
II. The Federal Rules of Civil Procedure provide that “[w]hile an appeal is pending from an interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or modify an injunction, the court may suspend, modify, restore, or grant an injunction
1 Plaintiffs have held, and continue to hold, in-person services in violation of the Governor’s orders. (See, e.g., D.N. 25-3)
2

Case 3:20-cv-00278-DJH-RSE Document 35 Filed 05/08/20 Page 3 of 6 PageID #: 577 Case: 1:20-cv-02782 Document #: 25-2 Filed: 05/10/20 Page 3 of 6 PageID #:436
on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(d). As before, the Court’s analysis is guided by four factors: (1) whether Plaintiffs have demonstrated a strong likelihood of success on the merits; (2) whether they will be irreparably injured absent the requested injunction; (3) whether the injunction would “substantially injure the other parties interested in the proceeding”; and (4) “where the public interest lies.” Maryville Baptist, 2020 U.S. App. LEXIS 14213, at *4-*5 (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)).
Because the Court must avoid constitutional questions if possible, it addresses Plaintiffs’ KRFRA claim first. See, e.g., Torres v. Precision Indus., 938 F.3d 752, 754-57 (6th Cir. 2019); WJW-TV, Inc. v. Cleveland, 878 F.2d 906, 910 & n.4 (6th Cir. 1989). A. Kentucky Religious Freedom Restoration Act
Kentucky Revised Statutes § 446.350 provides: The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities. There is no dispute here that “the Governor has a compelling interest in preventing the spread of a novel, highly contagious, sometimes fatal virus.” Maryville Baptist, 2020 U.S. App. LEXIS 14213, at *6. Likewise, neither the Court nor the Governor questions whether the activities burdened by the restrictions are motivated by sincerely held religious beliefs, or that the burden is substantial. See id. Thus, as the Sixth Circuit recognized, Plaintiffs’ KRFRA claim turns on the “least restrictive means” element, id., for which the Governor bears the burden of proof. See Ky. Rev. Stat. § 446.350. Unfortunately, the Governor does not address this element, much less provide “clear and convincing evidence” to support it. (See generally D.N. 31)
3

Case 3:20-cv-00278-DJH-RSE Document 35 Filed 05/08/20 Page 4 of 6 PageID #: 578 Case: 1:20-cv-02782 Document #: 25-2 Filed: 05/10/20 Page 4 of 6 PageID #:437
The Governor briefly argues, for purposes of Plaintiffs’ constitutional claims, that the orders are narrowly tailored. Citing evidence that “mass gatherings present a particular risk for the spread of disease, as compared to transitory encounters,” he asserts that “[p]roviding an exception to the mass gatherings order for in-person faith-based services would compromise the Commonwealth’s efforts to reduce the spread of COVID-19 and flatten the curve.” (Id., PageID # 430 & n.52; see D.N. 31-2, PageID # 453) The Governor fails, however, to present any evidence or even argument that there was no other, less restrictive, way to achieve the same goals. (See generally D.N. 31) Most notably, his response brief fails to address the Sixth Circuit’s suggestion that concerns about large gatherings could be adequately addressed by simply “limit[ing] the number of people who can attend a service at one time.” Maryville Baptist, 2020 U.S. App. LEXIS 14213, at *14. Because the Governor bears the burden of proof on this element, Ky. Rev. Stat. § 446.350, the Court is compelled to find that Plaintiffs have a strong likelihood of success on the merits of their KRFRA claim. B. Constitutional Claims
In the alternative—assuming, without deciding, that the Governor has properly asserted sovereign immunity and that the KRFRA claim is therefore barred—the Court finds that Plaintiffs are likely to succeed on the merits of their constitutional claims. Unlike this Court, the Sixth Circuit read the mass-gatherings ban as discriminatory and thus subject to strict scrutiny. See Maryville Baptist, 2020 U.S. App. LEXIS 14213, at *10-*11. (Cf. D.N. 9, PageID # 223-25) And as explained above, the Governor has offered little to show that the orders were narrowly tailored. See supra part II.A; see also Maryville Baptist, 2020 U.S. Dist. LEXIS 14213, at *7 (“All in all, the Governor did not narrowly tailor the order’s impact on religious exercise.”).
4

Case 3:20-cv-00278-DJH-RSE Document 35 Filed 05/08/20 Page 5 of 6 PageID #: 579 Case: 1:20-cv-02782 Document #: 25-2 Filed: 05/10/20 Page 5 of 6 PageID #:438
The remaining factors all follow from Plaintiffs’ likelihood of success. See Maryville
Baptist, 2020 U.S. Dist. LEXIS 14213, at *14. While “the balance is more difficult when it comes
to in-person services,” the Governor has not shown that allowing in-person services at limited
capacity, with strict social-distancing and hygiene measures observed, would substantially harm
third parties or the public interest. See id. at *10-*11 (noting that “[t]he exception for ‘life-
sustaining’ businesses allows law firms, laundromats, liquor stores, and gun shops to continue to
operate so long as they follow social-distancing and other health-related precautions”).2 He still
“has offered no good reason . . . for refusing to trust the congregants who promise to use care in
worship in just the same way [he] trusts accountants, lawyers, and laundromat workers to do the
2 The Sixth Circuit was concerned that this Court “seemed to think . . . that the explanation for these groups of people to be in the same area—intentional worship—distinguishes them from groups of people in a parking lot or a retail store or an airport or some other place where the orders allow many people to be.” Id. at *13. To address the panel’s concern, the Court clarifies that this was not, and is not, the Court’s belief. Rather, the Court contrasted events where individuals gather and remain at a specific time for a common purpose or experience—such as church services, movies, concerts, and sporting events, all of which are currently prohibited—with activities undertaken individually, such as a trip to the grocery or liquor store, which is typically brief and begins and ends according to the individual’s independent purpose. (See D.N. 9, PageID # 22425; see also D.N. 31, PageID # 427 (noting that the ban on mass gatherings is intended to “close[] any event the purpose of which is to congregate person-to-person for an extended period to engage in a particular activity”)) “Why can someone safely walk down a grocery store aisle but not a pew?,” the Sixth Circuit asks, “[a]nd why can someone safely interact with a brave deliverywoman but not with a stoic minister?” Id. at *11. In the infectious-disease context, the Court views the differences between such encounters as significant: the fellow grocery shopper will not sit down nearby and stay for an hour or more, talking and singing; the deliverywoman is unlikely to embrace or speak closely with a package recipient. The studies cited by the Governor, as well as the affidavit of Commissioner Stack, confirm that these distinctions are relevant in preventing the spread of COVID-19. (D.N. 31, PageID # 430 n.52 (“There is preliminary evidence suggesting that mass gatherings present a particular risk for the spread of disease, as compared to transitory encounters, which is why CDC has advised against gatherings where individuals are in close contact for prolonged periods of time.” (citations omitted)); D.N. 31-2, PageID # 453) The same distinctions cannot be drawn for workplaces such as law offices or laundromats, as discussed above.
5

Case 3:20-cv-00278-DJH-RSE Document 35 Filed 05/08/20 Page 6 of 6 PageID #: 580 Case: 1:20-cv-02782 Document #: 25-2 Filed: 05/10/20 Page 6 of 6 PageID #:439
same.” Id. at *13. The Court therefore finds that preliminary injunctive relief is warranted on Plaintiffs’ constitutional claims as well.
III. For the reasons set forth above, it is hereby ORDERED as follows: (1) Plaintiffs’ renewed motion for injunction pending appeal (D.N. 25) is GRANTED as to in-person services. Given that the same issues are raised in Plaintiffs’ initial motion for preliminary injunction, that motion (D.N. 3) is likewise GRANTED. The Governor and other Commonwealth officials are ENJOINED from enforcing the ban on mass gatherings as to inperson services at Maryville Baptist Church so long as the church, its ministers, and its congregants adhere to public health requirements set by state officials.3 (2) Plaintiffs’ initial motion for injunction pending appeal (D.N. 17) and motion for reassignment (D.N. 11) are DENIED as moot. (3) The Governor’s motion to exceed the page limit (D.N. 30) and the motion of the Commonwealth of Kentucky for leave to file an amicus brief (D.N. 20) are GRANTED. (4) If necessary, the Court will set by subsequent order a briefing schedule on the Governor’s motion to dismiss and a hearing on Plaintiffs’ request for permanent injunction.
May 8, 2020
David J. Hale, Judge United States District Court
3 At approximately 6:00 p.m. on Friday, May 8, 2020, the Governor filed “Supplemental Fact Development” that included new guidelines for in-person worship services. (D.N. 34)
6

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:11ooff1133P- aPgaegIeDI#D:#4:42018

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION FRANKFORT

TABERNACLE BAPTIST CHURCH, )

INC. OF NICHOLASVILLE,

)

KENTUCKY,

)

)

Plaintiff,

)

)

V.

)

)

ANDREW BESHEAR, in his official

)

capacity as Governor of Kentucky, et al., )

)

Defendants.

)

Civil No. 3:20-cv-00033-GFVT
OPINION &
ORDER

*** *** *** *** We are a relatively young nation. But our Constitution is the oldest in the world.1 We describe it as enduring— a value that must be protected not only when it is easy but when it is hard. And this is a hard and difficult time. A new virus sweeps the world, ravages our economy and threatens our health. Public officials, including the defendants in this case, make minute by minute decisions with the best of intentions and the goal of saving the health and lives of our citizens. But what of that enduring Constitution in times like these? Does it mean something different because society is desperate for a cure or prescription?

1 “Written in 1787, ratified in 1788, and in operation since 1789, the United States Constitution is the world’s longest surviving written charter of government.” UNITED STATES SENATE, CONSTITUTION DAY, https://www.senate.gov/artandhistory/history/common/generic/ConstitutionDay.htm.

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:22ooff1133P- aPgaegIeDI#D:#4:42119
Simply put, that is the question presented here. Tabernacle Baptist Church wants to gather for corporate worship. They want to freely exercise their deeply held religious belief about what it means to be a faithful Christian. For them, it is “essential” that they do so. And they want to invoke the Constitution’s protection on this point.
But the governor, by executive order, has put a stop to that. He can do that, but he must have a compelling reason for using his authority to limit a citizen’s right to freely exercise something we value greatly— the right of every American to follow their conscience on matters related to religion. As explained below, despite an honest motive, it does not appear at this preliminary stage that reason exists. Consequently, as explained below, the motions for a temporary restraining order are GRANTED.
I To curb the spread of the coronavirus in the Commonwealth of Kentucky, Governor Andrew Beshear has issued a series of executive orders limiting social interaction between Kentuckians. Non-essential businesses are temporarily closed, restaurants are relegated to takeout only, and citizens have been asked to practice social distancing. The plaintiffs take exception to two of these protective measures. On March 19, 2020, as part of broader efforts to “flatten the curve,”2 acting Secretary of the Cabinet for Health and Family Services Eric Friedlander issued an order prohibiting “mass gatherings.” [R. 3-7.]. Per Secretary Friedlander’s Order, mass gatherings include “any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades;
2 The term “flatten the curve” refers to slowing the spread of the coronavirus through the population. The goal is to “reduce[] the number of cases that are active at any given time, which in turn gives doctors, hospitals, police, schools, and vaccine-manufacturers time to respond, without becoming overwhelmed.” Siobhan Roberts, Flattening the Coronavirus Curve, The New York Times, https://www.nytimes.com/article/flatten-curve-coronavirus.html. The result is that, when plotted on a line graph, the rate of infection appears as a flattened curve rather than a steep peak.
2

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:33ooff1133P- aPgaegIeDI#D:#4:4220
concerts; festivals; conventions; fundraisers; and similar activities.” Id. (emphasis added). Some activities which necessarily involve large groups of individuals were excluded. “[A]irports, bus and train stations, medical facilities, libraries, shopping malls and centers, or other spaces where persons may be in transit” were not included within the definition of “mass gathering,” nor were “typical office environments, factories, or retail or grocery stores[.]” Id.
Later, on March 25, 2020, Governor Beshear issued an executive order mandating all businesses which are not “life-sustaining” close. [R. 3-5.]. Religious organizations were excluded from the category of “life-sustaining,” except to the extent they provide “food, shelter and social services.” Id. Entities allowed to remain open included hardware stores, laundromats and dry cleaners, law offices, and liquor stores, provided they adhere to social distancing and hygiene guidelines. See id.
Plaintiff Tabernacle Baptist Church describes itself as “an independent, fundamental, Baptist church, independent of the world but dependent on the Word of God.” Id. at ¶ 13. Since issuance of the above orders, Tabernacle has ceased holding in-person religious services. [R. 3-1 at 5.] Instead, Tabernacle has resorted to broadcasting services online via Facebook or holding drive-in services wherein congregants may listen to the service over their FM radio. Id. For Plaintiff, these substitutes offer cold comfort. “Tabernacle has a sincerely-held religious belief that online services and drive-in services do not meet the Lord’s requirement that the church meet together in person for corporate worship.” Id. For this reason, Tabernacle argues the foregoing Orders violate its First Amendment rights to free exercise of religion and freedom of assembly.3 [R. 1.] Tabernacle argues it is likely to succeed on the merits of its claims because the orders are not narrowly tailored to serve the public health interest.
3 The executive order has yet to be enforced against Plaintiff Tabernacle. However, the Court
3

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:44ooff1133P- aPgaegIeDI#D:#4:42321
Defendants dispute this characterization. Although not required in the context of ruling
on a TRO, the Court held a telephone hearing this afternoon, shortly after the Defendants filed an
appeal in a similar case. Counsel for Tabernacle, the Attorney General, Secretary Friedlander,
and Governor Beshear participated in the call. Defendants argued the prohibition on mass
gatherings is constitutional, because it is applicable to all mass gatherings generally. Further, the
Defendants pointed out factual distinctions between the social interaction that takes place in a
transactional setting, such as a grocery store, and the communal nature of religious services. The
arguments made were substantive, not jurisdictional.
Notably, Tabernacle’s is not the first challenge that has sought to enjoin the actions of
Kentucky officials that curtailed residents’ ability to participate in corporate worship. To date,
three other district courts in Kentucky have considered whether to grant a temporary restraining
order to enjoin government proscriptions on religious gatherings. In one case, the plaintiff
church requested a TRO against the City of Louisville’s prohibition on drive-in church services
on Easter. On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264-JRW, 2020 U.S. Dist.
notes that there is no issue at this preliminary stage concerning Tabernacle’s ability to establish standing in this apparent pre-enforcement challenge. McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016); see also Michigan Gas Co. v. F.E.R.C., 115 F.3d 1266, 1269 (6th Cir. 1997) (“Standing ‘is a qualifying hurdle that plaintiffs must satisfy even if raised sua sponte by the court.’”). To bring such a challenge, a plaintiff must sufficiently allege (1) “an intention to engage in a course of conduct arguably affected with a constitutional interest,” (2) that is “proscribed by a [law],” and (3) “there exists a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (citation omitted). It is beyond dispute that the first two elements are easily met. As to the third element, the Court notes first that violation of the recently promulgated executive orders is a Class A misdemeanor under Kentucky law. See KRS § 39A.990; see also KRS § 532.020(2); KRS § 534.040 (setting forth the penalties for a Class A misdemeanor). And second, there is an established record of enforcement against churches that have violated the executive order in the same way Tabernacle proposes. See Maryville Baptist, 2020 U.S. App. LEXIS 14213, at *1 (6th Cir. May 2, 2020); Roberts, 2020 U.S. Dist. LEXIS 77987, at *2 (E.D. Ky. May 4, 2020). Thus, it appears that Tabernacle also meets this third and final element. In sum, on the limited record before the Court, it appears that Tabernacle meets each element of the pre-enforcement standing analysis and, notably, the Governor has advanced no argument to the contrary. Indeed, the Governor, to this point in the litigation, evinces an intent to continue enforcing the orders at issue.
4

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:55ooff1133P- aPgaegIeDI#D:#4:42422
LEXIS 65924 (W.D. Ky. Apr. 11, 2020). The other two cases centered on the constitutionality of Governor Beshear’s executive orders. See Roberts v. Neace, No. 2:20-CV-054-WOB, 2020 U.S. Dist. LEXIS 77987 (E.D. Ky. May 4, 2020); Maryville Baptist Church, Inc. v. Beshear, No. 3:20-CV-278-DJH, 2020 U.S. Dist. LEXIS 70072 (W.D. Ky. Apr. 18, 2020). Appeals are pending before the Sixth Circuit in each of these latter cases. In Roberts, plaintiffs have moved for an injunction pending appeal that would permit them to attend in-person church services this Sunday. [Roberts, et al. v. Neace, et a., 2:20-54-WOB-CJS, R. 56.] The Plaintiffs in Maryville Baptist are awaiting a district court ruling on their motion to enjoin the Governor’s prohibition on mass gatherings as it applies to in-person religious services while their appeal remains pending. Id.
While instructive, this Court is not bound by the decisions of the district courts in those cases. See Camreta v. Greene, 563 U.S. 692, 709 n. 7 (2011); Ohio A. Philip Randolph Inst. v. Larose, 761 F. App'x 506, 514 n. 4 (6th Cir. 2019) (“[T]ypically district court judges are not bound by previous decisions of other judges within the same district.”). Ultimately, the constitutionality of these governmental actions will be resolved at the appellate level, at which point the Sixth Circuit will have the benefit of the careful analysis of the various district courts, even if we disagree.
II Rule 65 allows the Court to issue a TRO without notice to the other party only if “(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1). As noted, the Governor and
5

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:66ooff1133P- aPgaegIeDI#D:#4:42523
Secretary Friedlander filed an appearance, and participated in a hearing held earlier today. Additionally, although the Governor has not yet prepared a response to the instant motion, the Court considered briefing filed by the defendants in other, similar challenges to the prohibition on mass gatherings as it pertains to religious services, and provided at the Court’s request. In determining whether to issue a TRO, the Court examines: 1) whether the movant has shown a strong likelihood of success on the merits; 2) whether the movant will suffer irreparable harm if the injunction is not issued; 3) whether the issuance of the injunction would cause substantial harm to others; and 4) whether the public interest would be served by issuing the injunction. Overstreet v. Lexington–Fayette Urban County Government, 305 F.3d 566, 573 (citations omitted).
“[A] temporary restraining order is an extraordinary remedy designed for the limited purpose of preserving the status quo pending further proceedings on the merits[.]” Stein v. Thomas, 672 Fed. App’x 565, 572 (6th Cir. 2016). This is because “our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute.” Reed v. Cleveland Bd. of Educ., 581 F.2d 570, 573 (6th Cir. 1978) (quoting Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 439 (1974)). Thus, Tabernacle must show that the foregoing preliminary injunction factors are met, and that immediate, irreparable harm will result if the TRO is not issued.
A The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or exercising the free exercise thereof,” with few exceptions. U.S. Const. amend. 1. “When constitutional rights are threatened or impaired, irreparable injury is presumed.” ACLU Fund of Mich. v. Livingston Cnty., 796 F.3d 636, 649 (6th Cir. 2015)
6

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:77ooff1133P- aPgaegIeDI#D:#4:42624
(internal citations omitted). The Supreme Court has held “[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). This is precisely what Tabernacle alleges: violation of its First Amendment rights, specifically its right to exercise its religion and the right to freely assemble. [R. 1; R. 3-1.] Sixth Circuit precedent establishes that, “when a party seeks a preliminary injunction on the basis of a . . . violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009).
Of course, “[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.” Crowley v. Christensen, 137 U.S. 86, 89 (1890). The question becomes, then, whether the mass gathering prohibition issued by Governor Beshear amounts to “reasonable conditions” on Kentuckians’ constitutional right to free exercise of their sincerely-held religious beliefs. Context is important. The orders at issue do not simply restrict religious expression; they restrict religious expression in an attempt to protect the public health during a global pandemic. As a result, the Court is tasked with identifying precedent in unprecedented times.
Defendant Governor Beshear and other courts have looked to Jacobson v. Massachusetts, 197 U.S. 11 (1905). See In re Abbott, 954 F.3d 772 (5th Cir. 2020); Adams & Boyle, P.C. v. Slatery, 2020 U.S. App. LEXIS 13357 (6th Cir. Apr. 24, 2020); On Fire Christian Ctr. v. Fischer, 2020 U.S. Dist. LEXIS 65924, *16–17 (W.D. Ky. Apr. 11, 2020). There, the Supreme Court considered whether, when faced with an outbreak of smallpox, the city of Cambridge could constitutionally require its adult residents to receive vaccinations against the disease. See
7

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:88ooff1133P- aPgaegIeDI#D:#4:42725
Jacobsen, 197 U.S. at 25–26. Those who refused to vaccinate were subjected to a fine. Id. at 26. Although the defendant argued the law was an invasion of his liberty and violative of due process, the Supreme Court upheld the vaccination requirement based on public health concerns. Id. at 39.
Though over a century old, Jacobson is arguably the case that most directly speaks to “the expanded scope of a state’s police power during times of public health crises[.]” Adams & Boyle, P.C., 2020 U.S. Dist. LEXIS 13357 at *17. The Fifth Circuit has distilled Jacobson’s analysis into a clearer, multi-factor test:
The bottom line is this: when 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.” Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive.” At the same time, however, courts may not second-guess the wisdom or efficacy of the measures. In re Abbott, 954 F.3d 772, 784–85 (5th Cir. 2020) (internal citations omitted); see also Adams & Boyle, P.C. v. Slatery, 2020 U.S. App. LEXIS 13357 (6th Cir. Apr. 24, 2020) (applying the foregoing factors to the Governor of Tennessee’s directive to “postpone surgical and invasive procedures that are elective and non-urgent” including abortions). The Jacobson test gives states considerable leeway in enacting measures during public health emergencies. However, “even under Jacobson, constitutional rights still exist.” On Fire Christian Ctr., 2020 U.S. Dist. LEXIS 65924 at * 15. And while courts should refrain from second-guessing the efficacy of a state’s chosen protective measures, “an acknowledged power of a local community to protect itself against an epidemic . . . might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere[.]” Jacobson, 197 U.S at 28.
8

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:99ooff1133P- aPgaegIeDI#D:#4:42826
Here, not only has Tabernacle alleged an irreparable injury, but Tabernacle is likely to succeed on the merits of its federal constitutional claim. Defendant does not dispute that the challenged orders place a burden on the free exercise of religion in Kentucky. A law that incidentally burdens religion, but “that is neutral and of general applicability need not be justified by a compelling government interest[.]” Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993). If a law is not neutral or generally applicable, then it “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Id. 531–32. Even viewed through the state-friendly lens of Jacobson, the prohibition on religious services presently operating in the Commonwealth is “beyond what was reasonably required for the safety of the public.” Jacobson, 197 U.S. at 28.
The Sixth Circuit recently addressed a similar challenge to Kentucky’s prohibition on religious services. See Maryville Baptist Church, Inc. v. Beshear, 2020 U.S. App. LEXIS 14213 (6th Cir. May 2, 2020). Maryville Baptist Church held a drive-in service on Easter Sunday. But, pursuant to the prohibition on mass gatherings and executive order closing non-essential businesses—the same orders challenged in this case—“Kentucky State Police arrived in the parking lot and issued notices to the congregants that their attendance at the drive-in service amounted to a criminal act.” Id. at *3. On appeal, the Sixth Circuit considered whether to stay the district court’s order denying Maryville Baptist Church’s motion to enjoin enforcement of these restrictions. Id. In its analysis, the Court observed that Maryville Baptist was likely to succeed on the merits of its claim because “[t]he way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches.” Id. at *7.
9

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:1100ooff1133P- aPgaegIeDI#D:#4:42927
Ultimately, the Sixth Circuit opted to enjoin enforcement of the orders only as they pertained to drive-in services. Id. at * 15. Maryville Baptist does not decide this case, but it is indicative of what might come. It follows that the prohibition on in-person services should be enjoined as well. The restrictions which the Sixth Circuit criticized as “inexplicably applied to one group and exempted from another” are the same restrictions Tabernacle challenges today. Id. at *11. And, as the Sixth Circuit recognized, “many of the serial exemptions for secular activities pose comparable public health risks to worship services.” Id. at *10. The prohibition on mass gatherings is not narrowly tailored as required by Lukumi. There is ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking. If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection.
Finally, the Court is cognizant that absent a temporary restraining order today, congregants Tabernacle Baptist will be forced to forego in-person service this Sunday. Tabernacle states it “is committed to physically gathering its congregants in person in its sanctuary in a manner consistent with social distancing precautions in order to ensure the safety and well-being of its congregants.” [R. 3-1 at 4.] And, should they be permitted to gather, Tabernacle has said it will follow the Center for Disease Control’s guidelines on mass gatherings. Id. On this condition, the Court will GRANT Plaintiff’s Motion for Temporary Restraining Order.
B Plaintiffs have established a likelihood of success on the merits with respect to their free exercise claim, and the Court grants their motion for a TRO on that basis. The likelihood of
10

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:1111ooff1133P- aPgaegIeDI#D:#4:52028
success on the merits is largely determinative in constitutional challenges like this one, however, the remaining factors also mitigate in favor of Plaintiffs. As already explained, Tabernacle’s injury is irreparable. See Elrod, 427 U.S. at 373. To stay the prohibition on mass gatherings with respect to religious services which observe the social distancing guidelines promulgated by the Center for Disease Control, as Tabernacle has promised to do, does not harm the Defendants. Finally, the public interest favors the enjoinment of a constitutional violation. See MartinMarietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir. 1982).
While the Court has granted Plaintiff’s and the Attorney General’s Motions for a TRO based on the free exercise clause of the First Amendment, that is not the only issue before it. Tabernacle also brings claims grounded in the First Amendment guarantee of freedom to assemble, the Kentucky Constitution, and Kentucky’s Religious Freedom Restoration Act. [R. 1] These issues are reserved for another day, and will benefit from briefing from the Defendants.
C As a final matter, the Court considers the scope of the TRO. The Attorney General urges the Court to apply its injunction statewide rather than limiting its application to Tabernacle Baptist Church. In Califano v. Yamasake, the Supreme Court pointed out that one of the “principles of equity jurisprudence” is that “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Rodgers v. Bryant, 942 F.3d 451 (quoting Califano v. Yamasake, 442 U.S. 682 (1979)); see also Trump v. Int'l Refugee Assist. Project, 137 S. Ct. 2080, 2087 (2017) (per curiam) (“Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.”); De Beers Consol. Mines Ltd. v. United States, 325 U.S. 212, 220, 65 S. Ct. 1130, 89 L. Ed. 1566 (1945) (“A preliminary
11

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:1122ooff1133P- aPgaegIeDI#D:#4:52129
injunction is always appropriate to grant intermediate relief of the same character as that which may be granted finally.”). In the present case, the Executive Order at issue does not just affect Tabernacle Baptist Church. The Executive Order applies to all churches. Therefore, as the Eighth Circuit has recently upheld, injunctive relief may extend statewide because the violation established impacts the entire state of Kentucky.
III The Constitution will endure. It would be easy to put it on the shelf in times like this, to be pulled down and dusted off when more convenient. But that is not our tradition. Its enduring quality requires that it be respected even when it is hard. In light of the foregoing, the Court will grant Plaintiff’s Motion for a TRO. But the Court’s review at this stage is preliminary. In depth consideration of the constitutional issues at play will require additional briefing from the parties, and particularly a response from Defendants. Expedited consideration is appropriate. Accordingly, and the Court being otherwise sufficiently advised, it is ORDERED as follows: 1. The Motions for Temporary Restraining Order [R. 3; R. 13] are GRANTED; 2. Defendants are ENJOINED from enforcing the prohibition on mass gatherings
with respect to any in-person religious service which adheres to applicable social distancing and hygiene guidelines; 3. Intervening Plaintiff Attorney General Daniel Cameron’s Motion for Emergency Hearing [R. 13] is DENIED AS MOOT; 4. A telephonic scheduling conference shall be held Monday, May 11, 2020 at 11:00 a.m., with Judge Van Tatenhove sitting in Frankfort, Kentucky; and
12

CaCsea:se3:210:2-c0v--c0v0-023738-G2FDVoTcumDeonct##::2245-3FiFleilde:d0: 50/50/81/02/020 Page:1133ooff1133P- aPgaegIeDI#D:#4:5230 5. To join the teleconference, the parties are DIRECTED to call AT&T
Teleconferencing at 1-877-336-1280 and enter Access Code 2086161 (followed by #), and, when requested, enter the Security Code 09170 (followed by #).
This the 8th day of May, 2020.
13

Case: 1:20-cv-02782 Document #: 25-4 Filed: 05/10/20 Page 1 of 6 PageID #:453

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS Eastern Division

ELIM ROMANIAN PENTECOSTAL

)

CHURCH, LOGOS BAPTIST

)

MINISTRIES,

)

)

Plaintiff,

)

Case No. 1:20-cv-02782

)

v.

)

)

JAY ROBERT PRITZKER, in his

)

official capacity as Governor of the

)

State of Illinois,

)

)

Defendant.

)

SUPPLEMENTAL DECLARATION OF PASTOR CRISTIAN IONESCU IN SUPPORT OF PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

I, CRISTIAN IONESCU, being first duly sworn and cautioned, hereby testify as follows: 1) I am over the age of 18 years, I have personal knowledge of the matters set forth in this declaration, and if called to testify upon these matters I would and could do so competently. 2) I am Senior Pastor of Elim Romanian Pentecostal Church, one of the Plaintiffs in this action. I submit this Supplemental Declaration to supplement the verified facts in Plaintiffs’ Verified Complaint, and to bring to the Court’s attention some factual developments since that Complaint was filed. 3) Today, Sunday May 10, 2020, Elim Church held a religious service on its premises (hereinafter “Sunday service”), as we indicated to Governor Pritzker that we would in our pre-suit communication, in which we requested that he permit us to hold the service subject to strict social distancing and health precautions that we indicated we would voluntarily undertake. (Dkt. 1-12).

Case: 1:20-cv-02782 Document #: 25-4 Filed: 05/10/20 Page 2 of 6 PageID #:454
4) Elim Church strictly complied with each of the 10 safety points on page 3 of our letter to Governor Pritzker. (Dkt. 1-12 at 3).
5) Because we wanted to be beyond reproach, and because we care deeply about the health and safety of our members and congregants, we even went many steps farther than we indicated in our letter.
6) For instance: a) On Saturday, May 9, we cordoned off with yellow tape approximately 85% of the 750 seats in our auditorium, leaving only approximately 120 seats (15%) available for attendees of our Sunday service, so that we can be sure that attendees are spaced at least 6 feet apart. The first 1 minute and 40 seconds of the video available at this link accurately depicts the auditorium with the blocked seats: https://youtu.be/Ccwq9BTdUPc. b) On Saturday, May 9, 2020, the day before the service, we hired a professional industrial cleaning company to thoroughly clean and disinfect our premises, including treatment for microbial and virologic agents. The first 1 minute and 40 seconds of the video available at this link accurately depicts the cleaning company at work in our auditorium: https://youtu.be/Ccwq9BTdUPc. c) In advance of the service, we requested any person with any symptoms of communicable illness, any person exposed to anyone diagnosed with COVID-19, and any person advanced in age or with secondary immunological conditions to refrain from attending our service.
2

Case: 1:20-cv-02782 Document #: 25-4 Filed: 05/10/20 Page 3 of 6 PageID #:455
d) At the entrance to our Sunday service, we had our personnel take the temperature of each person wishing to be admitted into our service, with contactless thermometers. We are aware of commercial companies, such as Frontier Airlines, taking their customers’ temperatures and refusing service to customers with temperatures above 100.4 degrees. (See https://www.washingtonpost.com/travel/2020/05/07/frontier-just-becamefirst-us-airline-require-passenger-temperature-screening/). Because we wanted to be extra-safe and beyond reproach, we instructed our personnel to refuse admittance to anyone with a temperature of above 99.5 degrees.
e) At the Sunday service, we had to and did turn away several people after our designated capacity of 15% (120 seats) was filled.
f) At the entrance to our Sunday service, we provided complimentary hand sanitizer, gloves and masks for anyone wishing to use them.
g) At the Sunday service we created and strictly enforced a six-foot bubble zone around each person attending the service. Because we knew that media and other people would be watching our service and would be unaware of which people belong to the same household, and because we wanted to be above reproach, we even asked family members from the same household, who are not otherwise socially distanced off our premises, to generally maintain the six foot separation on our premises, so that no one will be confused or doubt our commitment to the health and safety of our congregants. Although there may have been a parent and child from the
3

Case: 1:20-cv-02782 Document #: 25-4 Filed: 05/10/20 Page 4 of 6 PageID #:456 same household that did come closer to each other than six feet, no persons who are not living together came closer to each other than six feet.
h) The following picture accurately reflects our choir members, appropriately distanced, during our Sunday service:
i) The following picture accurately reflects our congregation, appropriately distanced, during our Sunday Service
4

Case: 1:20-cv-02782 Document #: 25-4 Filed: 05/10/20 Page 5 of 6 PageID #:457
j) During our service, we requested our attendees to sing and pray in much lower and softer voices than they might otherwise.
7) Even though we voluntarily took these extensive precautions, we were extremely concerned that our service would be interrupted by law enforcement, and that I and other members would be arrested and hauled off to jail, because our service was held in violation of Governor Pritzker’s 10-person limit that is discriminatorily applied against churches such as hours but not against other non-religious entities deemed essential, and because Governor Pritzker and law enforcement agencies promised enforcement through arrests, fines and other punitive and criminal measures.
8) Because the Governor’s 10-person limit on churches – without regard to size or capacity, and without regard to any social distancing or safety measures – remains in effect, we continue to be very concerned that law enforcement agents will interrupt and interfere with our future services, and will arrest me and other members of the church.
9) The concerns we have about being fined, arrested, hauled off to jail or subjected to other punitive measures have interfered with and diminished our collective worship experience, to a much greater extent than COVID-19, and the precautionary measures we have voluntarily employed, ever could. Because of the threat of criminal arrest and punishment, we are unable to gather in peace and to worship God freely and without intimidation, according to our conscience.
10) The measures we voluntarily took for this Sunday service, we are willing to voluntarily take again – and will take again. No one is more concerned about the safety and health of our church members and attendees than we are.
11) We do not seek to make a political statement. We do not seek special treatment, such as to be able to meet for worship free of any precautionary measures. We only seek to be
5

Case: 1:20-cv-02782 Document #: 25-4 Filed: 05/10/20 Page 6 of 6 PageID #:458

treated equally with other “essential” places, so that – with proper safety precautions and social distancing that meet or exceed what the others are doing – we can corporately and collectively worship God according to our religious mandates and our conscience.
12) As long as Governor Pritzker’s 10-person limit remains in effect against our 750seat church, and as long as the threat of criminal punishment hangs over us, we will not be able to do that freely, in peace and without intimidation. And thus, we will not be able to enjoy the freedom that many of our members fled an oppressive regime to be able to enjoy in this country.

I DECLARE under penalty of perjury that the foregoing is true and correct.

EXECUTED this May 10, 2020.

/s/ Cristian Ionescu

___________

Pastor, Elim Romanian Pentecostal Church

6

 
 Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 1 of 12 PageID #:547

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

ELIM ROMANIAN PENTECOSTAL CHURCH, )

LOGOS BATIST MINISTRIES

)

)

Plaintiff,

)

)

v.

)

)

JAY ROBERT PRITZKER,

)

in his official capacity as Governor of the

)

State of Illinois,

)

)

Defendant.

)

Case No. 20 C 2782 Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER1

“These are the times that try men’s souls.”2 Illinois, the nation, and the world are in the

grip of a deadly pandemic the likes of which haven’t been experienced in more than a century. As

of yesterday, May 12, 2020, Illinois has experienced more than 83,000 known infections and more

than 3,600 deaths from the COVID-19 virus, with more than 4,000 new cases and 144 new deaths

reported on that date alone. In the nation, some 1.4 million cases and 82,000 deaths have been

reported. In the world, more than 291,000 have died from the disease, which has infected more than 4 million people.
The virus is highly contagious and easily transferable. Because people may be infected but asymptomatic, they may be infecting others without knowing. At this time there is no known cure,

no effective treatment and no vaccine. The only preventative measures agreed upon by all medical

experts is to avoid contact with infected persons. To that end people have been cautioned to stay at home if at all possible, practice social distancing when it is not, and to wear face coverings when

1 The facts discussed in this opinion are uncontested and principally taken from the parties’ submissions. 2 Thomas Payne, “The Crisis” (December 23, 1776).

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 2 of 12 PageID #:548
coming near others. Despite the dire numbers and warnings, some people have refused to comply, causing governors across the country to issue what have been described as “stay-at-home” orders. Defendant Governor Jay Pritzker has issued a number of such orders, including, Executive Order 2020-32 (the “Order”), which requires wearing a face covering in public places or when working, the cessation of all non-essential business and operations, and most importantly for the instant case, prohibits “All public and private gatherings of any number of people occurring outside a single household or living unit” except for limited purposes. “[A]ny gathering of more than ten people is prohibited unless exempted …” Individuals may leave their residences only to perform certain “Essential Activities” and must follow social distancing requirements set forth in the Order, including wearing face coverings when in public and work. Among the Essential Activities listed is “to engage in the free exercise of religion.” That provision of the Order provides:
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. Plaintiffs have sued Governor Pritzker, challenging the Order to the extent that it restricts religious gatherings to ten persons, arguing that it violates numerous of their federal constitutional rights, most notably the right to free exercise of religion contained in the First Amendment. They filed their complaint on Thursday, May 7, 2020 at 11:16 p.m. and their motion for a temporary restraining order (“TRO”) and preliminary injunction at 1:47 a.m. Friday, May 8, 2020. The motion sought a TRO enjoining defendant from enforcing the Order against them starting on Sunday, May 10, 2020. The court ordered defendant to respond to the motion by 5:00 p.m.
2

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 3 of 12 PageID #:549
Saturday May 9, 2020 with plaintiffs to reply by 5:00 p.m. Sunday, May 10, 2020. Because of the briefing schedule, the court denied the request for a TRO effective for May 10, 2020.
Undeterred by the court’s refusal to grant the TRO motion, plaintiff Elim Romanian Pentecostal Church (“Elim”) elected to disobey the Order and hold services at its church with more than the allotted ten persons. The pictures that plaintiffs have included in their reply show that none of the congregants were wearing face coverings, contrary to CDC guidelines. Because plaintiffs’ reply brief contained new factual matter, the court granted defendant leave to file a sur-reply by noon on Tuesday, May 12, 2020, with no further briefing to be accepted. Nevertheless, plaintiffs submitted a response to the sur-reply, principally to contend that the congregants and clergy were social distancing. The motion is now fully briefed and ready for resolution. For the reasons described below, the motion is denied.
Temporary restraining orders and preliminary injunctions, are extraordinary and drastic remedies 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). The party seeking such relief must show that: 1) it has some likelihood of success on the merits; 2) it has no adequate remedy at law; and, 3) that without relief it will suffer irreparable harm. Planned Parenthood of Ind. and Ky, Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d 809, 816 (7th Cir. 2018). If the movant meets these requirements, the court must then weigh the harm the movant will suffer without an injunction against the harm the non-movant will suffer if an injunction is issued. The court makes this assessment using a sliding scale. The more likely the movant is to win, the less heavily need the balance of harm weigh in its favor. The less likely the movant is to win, the more the balance must weigh in its favor. Finally, the court must also determine whether the injunction is in the
3

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 4 of 12 PageID #:550
public interest, taking into account any effects on non-parties. Courthouse News Serv. v. Brown, 908 F.3d 1063, 1068 (7th Cir. 2018).
Likelihood of Success on the Merits Plaintiffs need show only that their chances of success are better than negligible. Ill. Council on Long Term Care v. Bradley, 957 F.2d 305, 310 (7th Cir. 1992). Plaintiffs’ complaint challenges the Order on both federal and state constitutional grounds, as well as on state statutory grounds. Their motion, however, raises only that the Order violates their First Amendment Rights to Free Exercise of Religion and to “Be Free from Government Hostility and Disparate Treatment Under the Establishment Clause,” and that the Order restricts their First Amendment rights to speech and assembly. Over one hundred years ago the Supreme Court established a framework governing the emergency exercise of state authority during a public health crisis. Jacobson v Commonwealth of Mass., 197 U.S. 11, 27 (1905). The “liberty secured by the Constitution … does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Id. at 26. “Even liberty itself, the greatest right, is not unrestricted license to act according to one’s will.” Id. “[A] community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 28. As the Court explained, “[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.” Id. at 26-27 (emphasis added). In Jacobson, the Court was faced with a claim that the state’s compulsory vaccination law enacted during the smallpox epidemic violated the Fourteenth Amendment. Rejecting the claim,
4

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 5 of 12 PageID #:551
the court described the state’s police power to combat an epidemic, id at 29: In every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the public may demand. Courts have acknowledged this principle numerous times, applying it to various
constitutional claims. For example, in Compagnie Francaise de Navigation a Vapeur v. State Bd. of Health, 186 US 380 (1902), the court upheld Louisiana’s right to quarantine passengers aboard a vessel despite the fact that all were healthy. And in Prince v Mass., 321 U.S. 158, 166-67 (1944), the Court stated “[t]he right to practice religion freely does not include the liberty to expose the community … to communicable disease.” Under such emergency circumstances, such as when 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 violation of rights secured by the fundamental law.” In re Abbot, 954 F.3d 772, 784-85 (5th Cir. 2020) (quoting Jacobson, 197 U.S. at 31).
As described above, there is no question that the world, the country, and Illinois in particular are in the midst of a deadly pandemic of epic proportions. Plaintiffs do not dispute that COVID-19 threatens the lives of the citizens of Illinois and all Americans. The court finds, as did the court in Cassell v Snyders, 2020 WL 2112374 at *7 (N.D. Ill. May 3, 2020), that the COVID-19 pandemic qualifies as the type of public health crisis that Jacobson contemplated. That finding means that to have any likelihood of success on the merits plaintiffs must demonstrate either that the Order has no real or substantial relation to the public health crisis or that it is a plain,
5

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 6 of 12 PageID #:552
palpable invasion of their rights. They have failed to demonstrate either. Indeed, nowhere in any of their briefs do they cite Jacobson or mention its standard. As a result, because Jacobson is implicated by the current health crisis, and because the Order advances the State’s interest in protecting its citizens from the pandemic, the court concludes that plaintiffs have a less than negligible chance of success on their constitutional claims.
Moreover, even if Jacobson’s emergency crisis standard does not apply, plaintiffs have failed to show any likelihood of success under traditional First Amendment analysis. The Free Exercise Clause of the First Amendment (applied to the states through the Fourteenth Amendment) provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ….” It prohibits government from “[p]lacing a substantial burden on the observation of a central religious belief or practice without first demonstrating that a “compelling governmental interest justifies the burden.” St. Johns United Church of Christ v. City of Chicago, 502 F.3d 616, 631 (7th Cir. 2007). In Employment Division v. Smith, 494 U.S. 872, 883 (1990), however, the Supreme Court held that neutral laws of general applicability do not violate the Free Exercise Clause even if they have the incidental effect of burdening a particular religious practice, and thus need not be justified by a compelling governmental interest. Put another way, 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). Neutrality and general application are interrelated, and failure to satisfy one likely indicates a failure to satisfy the other. Church of the Lukkumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).
Whether a law qualifies as neutral depends on its object. A law is not neutral if “the object of the law is to infringe upon or restrict practices because of their religious motivation.” Lukumi,
6

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 7 of 12 PageID #:553
508 U.S. at 533. General applicability forbids the government from “imposing burdens only on conduct motivated by religious belief in a selective manner.” Id. In short, if the Order does not target religion, “the First Amendment has not been offended.” Employment Division, 494 U.S. at 878.
In the instant case, plaintiffs have provided no evidence that the Order targets religion. They point to the Order’s exemptions for essential businesses that may host more than ten people and argue “if large gatherings at liquor stores, warehouse supercenters, and cannabis stores are not prohibited – and distancing and hygiene practices are only required to the greatest extent possible – even though endangering citizens (or not) to an equal degree, then it is obvious religious gatherings have been targeted for discriminatory treatment.” The court disagrees.
Gatherings at places of worship pose higher risks of infection than gatherings at businesses. As Judge Lee explained in Cassell, 2020 WL 2112374 at *9, when analyzing the same Order:
[I]n person religious services create a higher risk of contagion than operating grocery stores or staffing manufacturing plants. 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 point of sale, and leave once the task is complete. 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.
By comparison, religious services involve sustained interactions between many people … 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 that Plaintiffs identify. Plaintiffs do not address Cassell’s reasoning (they don’t even cite it in their reply) except to argue in their initial motion that COVID-19 does not care about people’s intentions - what matters is hygiene and social distancing. That distorts Cassell’s reasoning and common sense. The
7

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 8 of 12 PageID #:554
congregants do not just stop by Elim Church. They congregate to sing, pray, and worship together. That takes more time than shopping for liquor or groceries. The word “congregate,” from which the term “congregation” derives, means to “gather into a crowd or mass.” Indeed, the church’s YouTube channel lists a live recording from last Sunday’s service that was one hour, forty-seven minutes long, with virtually no one in the congregation or clergy wearing a face covering.
Plaintiffs also complain that the Order classifies law and accounting firms as essential, with no ten-person limit, suggesting that this somehow shows that the Order targets religion. Again, however, people do not go to those places to gather in groups for hours at a time. In this regard the court agrees with Judge Lee that a more apt analysis is between places of worship and schools, both of which involve “activities where people sit together in an enclosed space to share a common experience,” exacerbating the risk of contracting the virus. Cassell, 2020 2112374 at *10. All public and private schools serving pre-kindergarten through twelfth grade students have been closed under other Executive Orders. And under this Order, theaters and concert halls, which clearly resemble the layout of plaintiffs’ churches, are completely banned from hosting any gatherings.
As a result, the court concludes that the Order is both neutral and of general applicability. As such, it does not violate the Free Exercise Clause so long as it is supported by a rational basis. Anderson, 870 F.3d at 639. The Order, without doubt, is rationally based in light of the need to slow the spread of COVID-19 in Illinois. Consequently, the court concludes that plaintiffs have a less than negligible likelihood of success on the merits of this claim.
Plaintiff’s Establishment Clause claim fares no better. “[T]he Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one
8

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 9 of 12 PageID #:555
religion, or on religion as such, or to favor the adherents of any sect or religious organization.” Gillette v. U.S., 401 U.S. 437, 450 (1971). “Its central purpose is to ensure government neutrality in matters of religion.” Id. at 449. To comply with the Establishment Clause, government action must: 1) have a secular purpose; 2) have a primary effect that neither advances nor inhibits religion; and 3) not foster an excessive government entanglement with religion.” Lemon v Kurtzman, 403 U.S. 602, 612-13 (1972).
There is no doubt that the Order passes the Lemon test, and plaintiffs do not argue otherwise. Indeed, once again, they fail to address Lemon in any of their three briefs. In any event, the Order obviously has a secular purpose to prevent the spread of COVID-19. Its primary effect neither advances nor prohibits religion. It does not favor one religion over another, or religion as such. Plaintiff’s argument that the Order inhibits religion because it does not limit other essential businesses to ten persons or fewer fails for the same reason its Free Exercise Claim fails. Finally, the Order in no way fosters government entanglement with religion. Consequently, the court concludes that plaintiffs have a less than negligible change of success on their Establishment Clause claim.
Nor do plaintiffs have even a negligible change of success on their Free Speech and Assembly claim. The First Amendment bars the government from “abridging the freedom of speech.” A law must pass strict scrutiny when it restricts speech based on content. A speech restriction is content-based when “it applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015). A commonsense meaning of content-based requires the court to consider “whether a regulation of speech on its face draws distinctions based on the message the speaker conveys.” Id. (internal
9

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 10 of 12 PageID #:556
quotations omitted). Some such distinctions are obvious, such as defining speech by particular subject matter; others are more subtle, defining regulated speech by its function or purpose. “Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.” Id. Additionally, some facially content neutral laws will be considered content-based regulations of speech if they “cannot be justified without reference to the content of the regulated speech, or that were adopted by the government because of disagreement with the message the speech conveys.” Id.
Plaintiffs have failed to present any evidence to demonstrate that the Order is based on the content discussed at churches or the ideas or messages expressed. They again rely on the exemptions for other essential businesses that are not restricted to gatherings of ten persons. From this, plaintiffs conclude that the Order restricts religious speech because it is religious speech. Once again, the court disagrees.
As noted in Cassell, the Order has nothing to do with suppressing religion and everything to do with reducing infections and saving lives. There is no evidence that defendant has a history of animus toward religion. Cassell noted the example of a church choir practice in Washington State where members actually used hand sanitizer and practiced social distancing. Despite those efforts, forty-five of the sixty choir members contracted COVID-19 and two died. Cassell, 2020 WL 2112374 at *13. That example illustrates the purpose of the Order. Large gatherings magnify the risk of contagion even when participants practice preventative measures as plaintiffs claim they are prepared to do.3 Consequently, the court concludes that plaintiffs’ chance of success on this claim is less than negligible.
3 As mentioned above, the pictures of the services held by Elim on Sunday, May 10, 2020, show that the participants were not wearing face coverings, as required by the CDC guidelines.
10

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 11 of 12 PageID #:557
Balancing of Harms Because plaintiffs have not shown a greater than negligible chance of success on the merits, they are not entitled to preliminary relief. But, even if they had a slight chance of success, under the sliding scale approach, the less likely their chance of success the more the balance of harms must weigh in their favor. Valencia v. City of Springfield, Ill., 883 F.3d 959, 966 (7th Cir. 2018). Because their likelihood of success is so remote, plaintiffs must show that the scales weigh heavily in their favor. They do not and cannot. Indeed, quite the contrary is true. The harm to plaintiffs if the Order is enforced pales in comparison to the dangers to society if it is not. The record clearly reveals how virulent and dangerous COVID-19 is, and how many people have died and continue to die from it. “[T]he sad reality is that places where people congregate, like churches, often act as vectors for the disease.” Cassell, 2020 WL 2112374 at *15. Plaintiffs’ request for an injunction, and their blatant refusal to follow the mandates of the Order are both ill-founded and selfish. An injunction would risk the lives of plaintiffs’ congregants, as well as the lives of their family members, friends, co-workers and other members of their communities with whom they come in contact. Their interest in communal services cannot and does not outweigh the health and safety of the public.
11

Case: 1:20-cv-02782 Document #: 33 Filed: 05/13/20 Page 12 of 12 PageID #:558 CONCLUSION
For the reasons described above, plaintiffs’ motion for temporary restraining order and preliminary injunction (Doc. 4) is denied. ENTER: May 13, 2020
__________________________________________ Robert W. Gettleman United States District Judge
12

 
 No. 19A1046
In the Supreme Court of the United States
______________
ELIM ROMANIAN PENTECOSTAL CHURCH, and LOGOS BAPTIST MINISTRIES, PETITIONERS, v.
JAY R. PRITZKER, in his official capacity as Governor of the State of Illinois, RESPONDENT. ______________
To The Honorable Brett M. Kavanaugh, Associate Justice of the United States Supreme Court and Circuit Justice for the Seventh Circuit ______________
RESPONSE IN OPPOSITION TO EMERGENCY APPLICATION FOR WRIT OF INJUNCTION ____________
KWAME RAOUL Illinois Attorney General
JANE ELINOR NOTZ* Solicitor General
SARAH A. HUNGER Deputy Solicitor General
NADINE JEAN WICHERN PRIYANKA GUPTA Assistant Attorneys General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-5376 jnotz@atg.state.il.us
*Counsel of Record
Attorneys for Respondent Governor J.B. Pritzker

i

TABLE OF CONTENTS

Page

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

INTRODUCTION .......................................................................................................... 1

STATEMENT OF THE CASE....................................................................................... 6

A. The COVID-19 pandemic ......................................................................... 6

B. The Governor’s measures to protect Illinois residents. .......................... 7

C. Applicants file suit and repeatedly violate EO32 ................................... 9

ARGUMENT ................................................................................................................ 14

I. Applicants Seek The Extraordinary Relief Of An Injunction Pending Appeal, Not Simply A Stay Of A Judicial Decision. ........................................ 14

II. A Majority Of This Court Is Unlikely To Reverse The Seventh Circuit’s Decision. ........................................................................................................... 16

A. The executive order does not violate applicants’ right to free exercise of religion. ................................................................................. 17

1. A deferential standard of review applies to public health emergencies.................................................................................. 18

2. The order does not violate applicants’ right to free exercise under either rational basis or strict scrutiny. ............................ 24

i. Rational basis review applies here................................... 25

ii. Applicants’ arguments for applying strict scrutiny lack merit. ......................................................................... 27

iii. Alternately, the executive order satisfies strict scrutiny.............................................................................. 29

B. The Eleventh Amendment bars applicants’ IRFRA claim, which is, in any event, unpersuasive. ................................................................... 33

C. Applicants forfeited their claims under the Establishment Clause and RLUIPA. .......................................................................................... 36

1. The executive order does not violate the Establishment Clause........................................................................................... 36

2. RLUIPA is inapplicable. .............................................................. 39

III. The Decisions From Other Circuits Do Not Justify An Injunction................. 40

IV. Applicants Will Not Suffer Irreparable Harm Absent An Injunction. ........... 45

CONCLUSION............................................................................................................. 47

ii

Cases

TABLE OF AUTHORITIES

Page(s)

Abiding Place Ministries v. Wooten, No. 3:20-cv-00683 (S.D. Cal. Apr. 10, 2020) .......................................................... 17

Am. Trucking Ass’ns, Inc. v. Gray, 483 U.S. 1306 (1987) .............................................................................................. 15

Antietam Battlefield KOA v. Hogan, No. CV CCB-20-1130, 2020 WL 2556496 (D. Md. May 20, 2020) .................. 17, 28

Associated Press v. District Court, 542 U.S. 1301 (2004) ................................................................................................ 1

Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) ................................................................................................ 33

Beame v. Friends of the Earth, 434 U.S. 1310 (1977) ................................................................................................ 2

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................. 1

Berean Baptist Church v. Cooper, No. 4:20-CV-81-D, 2020 WL 2514313 (E.D.N.C. May 16, 2020)..................... 30, 42

Binford v. Sununu, No. 217-2020-cv-00152 (N.H. Sup. Ct. Mar. 25, 2020).................................... 17, 20

Books v. City of Elkhart, Indiana, 235 F.3d 292 (7th Cir. 2000) .................................................................................. 38

Bowen v. Roy, 476 U.S. 693 (1986) ................................................................................................ 18

Calvary Chapel of Bangor v. Mills, No. 1:20-CV-00156-NT, 2020 WL 2310913 (D. Me. May 9, 2020) ........................ 17

Cassell v. Snyders, No. 20 C 50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020) .................................. 17

iii
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) .........................................................................................passim
City of Boerne v. Flores, 521 U.S. 507 (1997) ................................................................................................ 40
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) ................................................................................................ 34
Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of La., 186 U.S. 380 (1902) ................................................................................................ 23
Cross Culture Christian Ctr. v. Newsom, No. 220-CV-00832-JAMCKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020) .... 17, 39
Crowley v. Christensen, 137 U.S. 86 (1890) .................................................................................................. 23
Cutter v. Wilkinson, 544 U.S. 709 (2005) ................................................................................................ 40
Davis v. Berke, No. 1:20-CV-98, 2020 WL 1970712 (E.D. Tenn. Apr. 17, 2020)............................ 17
Democratic Nat’l Comm. v. Republican Nat’l Comm., 543 U.S. 1304 (2004) ................................................................................................ 2
Edelman v. Jordan, 415 U.S. 651 (1974) ................................................................................................ 34
Emp’t Div. v. Smith, 494 U.S. 872 (1990) ................................................................................................ 24
Ex parte Young, 209 U.S. 123 (1908) ................................................................................................ 33
First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020) ............................. 42
First Pentecostal Church of Holly Springs v. City of Holly Springs Mississippi, No. 3:20CV119 M-P, 2020 WL 2495128 (N.D. Miss. May 14, 2020) .................... 43
First Pentecostal Church v. City of Holly Springs, Miss., No. 20-60399, 2020 WL 2616687 (5th Cir. May 22, 2019) .................................... 43

iv
Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485 (2019) ............................................................................................ 33
Freedom from Religion Found., Inc. v. Concord Community Schs., 885 F.3d 1038 (2018) .............................................................................................. 39
Gillette v. United States, 401 U.S. 437 (1971) ................................................................................................ 37
Gish v. Newsom, No. ED-CV-20755-JGBKKX, 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020).............................................. 17, 20, 27
Gray v. Kohl, No. 07-10024-CIV, 2007 WL 3520119 (S.D. Fla. Nov. 14, 2007) .......................... 35
Green v. Mansour, 474 U.S. 64 (1985) .................................................................................................. 35
Guru Nanak Sikh Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d 978 (9th Cir. 2006) .................................................................................. 40
Hobby Lobby Stores, Inc. v. Sebelius, 568 U.S. 1401 (2012) ........................................................................................ 40, 45
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) ...........................................................................................passim
Kansas v. Hendricks, 521 U.S. 346 (1997) ................................................................................................ 22
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016) ................................................................................ 22, 29, 36
Lee v. Weisman, 505 U.S. 577 (1992) ................................................................................................ 39
Legacy Church, Inc. v. Kunkel, No. CIV 20-0327, 2020 WL 1905586 (D.N.M. Apr. 17, 2020) ............................... 17
Lemon v. Kurtzman, 403 U.S. 602 (1971) ................................................................................................ 37

v
Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) ............................................................................................ 1, 16
Lighthouse Fellowship Church v. Northam, No. 2:20cv204, 2020 WL 2110416 (E.D. Va. May 1, 2020) ................................... 17
Lux v. Rodrigues, 561 U.S. 1306 (2010) .......................................................................................... 5, 15
Lynch v. Donnelly, 465 U.S. 668 (1984) ................................................................................................ 38
Maryville Baptist Church, Inc. v. Beshear, No. 3:20-CV-278-DJH-RSE, 2020 WL 2393359 (W.D. Ky. May 8, 2020) ............. 42
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) ............................................................................ 41, 42
McCreary Cty., Ky. v. ACLU of Ky., 545 U.S. 844 (2005) ................................................................................................ 37
Moorhead v. Farrelly, 723 F. Supp. 1109 (D.V.I. 1989) ............................................................................. 19
Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803 (2003) ................................................................................................ 31
Nigen v. New York, No. 1:20-cv-01576 (E.D.N.Y. Mar. 29, 2020) ......................................................... 17
Nken v. Holder, 556 U.S. 418 (2009) ................................................................................................ 14
Ohio Citizens for Reasonable Energy, Inc. v. Nuclear Regulatory Comm’n, 479 U.S. 1312 (1986) .............................................................................................. 15
On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv-264-JRW, 2020 WL 1820248 (W.D. Ky. Apr. 11, 2020) ..................... 42
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ............................................................................................ 33, 35
Perry v. Reddish, No. 3:09-CV-403, 2011 WL 13186523 (M.D. Fla. Jan. 14, 2011) ....................................................... 35

vi
Prince v. Massachusetts, 321 U.S. 158 (1944) .................................................................................... 18, 23, 46
Roberts v. Neace, No. 20-5465, 2020 WL 2316679 (6th Cir. May 9, 2020) ............................ 30, 41, 44
Ross v. Blake, 136 S. Ct. 1850 (2016) .............................................................................................. 1
Rostker v. Goldberg, 448 U.S. 1306 (1980) ........................................................................................ 15, 16
Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983) ................................................................................................ 2
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006) .................................................................................................. 30
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) .......................................................................................... 37, 39
Smith v. Avino, 91 F.3d 105 (11th Cir. 1996) .................................................................................. 19
Sossamon v. Texas, 563 U.S. 277 (2011) ................................................................................................ 34
South Bay United Pentecostal Church v. Newsom, No. 20-55533, 2020 WL 2687079 (9th Cir. May 22, 2020) .................................... 17
Spell v. Edwards, No. CV 20-00282-BAJ-EWD, 2020 WL 2509078 (M.D. La. May 15, 2020).......... 17
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................................................................................. 19
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, No. 3:20-CV-00033-GFVT, 2020 WL 2305307 (E.D. Ky. May 8, 2020) ................ 42
Tolle v. Northam, No. 1:20-cv-00363 (E.D. Va. Apr. 1, 2020) ............................................................. 17
United States v. Chalk, 441 F.2d 1277 (4th Cir. 1971) ................................................................................ 19

vii
Valenti v. Lawson, 889 F.3d 427 (7th Cir. 2018) .................................................................................. 24
Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006) .................................................................................. 38
Winter v. NRDC, 555 U.S. 7 (2008) .................................................................................................... 45
Zucht v. King, 260 U.S. 174 (1922) ................................................................................................ 23
Federal Statutes 28 U.S.C. § 1651(a) ................................................................................................ 14, 15 42 U.S.C. § 2000cc(a)(1). .............................................................................................. 39 42 U.S.C. § 2000cc-5(5) ................................................................................................ 39 State Statutes 745 ILCS 5/1.5.............................................................................................................. 35 775 ILCS 35/15............................................................................................................. 35 Rules Fed. R. Evid. 101(b)(6) ................................................................................................... 1 Fed. R. Evid. 201(b)(2) ................................................................................................... 1 Fed. R. Evid. 902(6) ....................................................................................................... 1 U.S. Sup. Ct. R. 20(1)............................................................................................. 14, 15 U.S. Sup. Ct. R. 23 ....................................................................................................... 14 Other Authorities Zeeshan Aleem, One German church service resulted in more than 100
coronavirus infections (May 24, 2020) ................................................................... 22

viii
Lateshia Beachum, Two churches reclose after faith leaders and congregants get coronavirus, Wash. Post (May 22, 2020) ............................................................... 32
CDC, How COVID-19 Spreads (May 22, 2020) .......................................................... 28
CDC, How to Protect Yourself and Others (updated Apr. 24, 2020) ............................ 7
CDC, Interim Guidance for Communities of Faith (May 22, 2020) ................. 7, 20, 21
CDC, Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission (Apr. 3, 2020) ............................................................................................................ 7
Chicago Police Issued More Than 4,600 Dispersal Orders, Arrested 17 in Enforcing Stay-at-Home Order in April, NBC Chicago (May 1, 2020)................. 29
Cnty. of Medocino, COVID-19 News, Health Officer Update (May 24, 2020) ........... 21
Coronavirus Resource Center, John Hopkins University & Medicine, United States Cases (updated May 25, 2020) ......................................................... 6
Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times...................... 6, 20
Ill. Dep’t of Pub. Health, COVID-19 Guidance for Places of Worship and Providers of Religious Services ............................................................................................... 10
Ill. Dep’t of Pub. Health, Daily COVID-19 Press Briefings, May 22, 2020, COVID-19, Press Update ....................................................................................... 11
Ill. Dep’t of Pub. Health, May 28, 2020 COVID-19 Press Update ........................... 1, 9
Matt Masterson, Outdoor, Drive-In Religious Services Allowed in Next Phase of Illinois’ Reopening Plan, Wttw News (May 22, 2020)........................................... 11
Caitlin Owens, Leading coronavirus modeling shows that social distancing is working, Axios (Apr. 11, 2020) ................................................................................. 6
State of Illinois, Coronavirus (COVID-19) Response ................................................... 6
Tom Shuba, Facing fines and threat of closure, churches continue to hold services: There is not going to be a stand down, Chicago Sun Times (May 24, 2020) .... 3, 13

ix
Valentyn Stadnytsky, et al., The airborne lifetime of small speech droplets and their potential importance in SARS-CoV-2 transmission, Proceedings of the Nat’l Acad. of Sciences of the United States of America (May 13, 2020) ...................... 28
Steph Whiteside, Jackson County Experiences Surge in COVID-19 Cases, WSIU News (May 27, 2020) ................................................................................... 21

INTRODUCTION
In accordance with this Court’s order of May 27, 2020, J.B. Pritzker,
Governor of the State of Illinois, hereby responds to the “Emergency Application for
Writ of Injunction Relief Requested Before May 31, 2020” filed that same day by
Applicants Elim Romanian Pentecostal Church and Logos Baptist Ministries.
Applicants take issue with the Governor’s Executive Order 2020-32, which
prohibits gatherings exceeding ten people, including for in-person religious services,
to prevent the transmission of COVID-19. But EO32 will expire by its own terms on
May 29, 2020, and the Governor has announced that after that date religious
gatherings will no longer be subject to mandatory restrictions; instead, faith leaders
will be provided with guidance from the Illinois Department of Public Health
regarding best practices to prevent the transmission of COVID-19.1 Accordingly,
applicants’ challenge to EO32 is moot. See, e.g., Lewis v. Cont’l Bank Corp., 494
U.S. 472, 477-78 (1990). This change in circumstances is reason alone to deny the
1 See Ill. Dep’t of Pub. Health, May 28, 2020 COVID-19 Press Update, http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-zlist/coronavirus/media-publications/daily-press-briefings (Governor’s May 28, 2020 COVID-19 press briefing). IDPH’s guidance, which was published on May 28, 2020, is available at Ill. Dep’t of Pub. Health, COVID-19 Guidance for Places of Worship and Providers of Religious Services, http://www.dph.illinois.gov/covid19/communityguidance/places-worship-guidance. This Court may take judicial notice of this information and other external sources because their “accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); see also Ross v. Blake, 136 S. Ct. 1850, 1862 (2016) (Thomas, J., concurring) (noting public records are subject to judicial notice); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.1 (2007) (district court could take notice of published article); Fed. R. Evid. 902(6) (official documents and newspapers are self-authenticating); Fed. R. Evid. 101(b)(6) (rules on printed information apply to electronic sources of information). All websites were last visited on May 28, 2020.

2
Application. See id.; see also, e.g., Associated Press v. District Court, 542 U.S. 1301 (2004) (Breyer, J.); Democratic Nat’l Comm. v. Republican Nat’l Comm., 543 U.S. 1304 (2004) (Souter, J.).
Mootness aside, applicants’ request for an injunction should be rejected on the merits. Applicants prefer to congregate in larger groups than EO32 allows, and violated the order when conducting services on May 10, 2020, while this action was pending in the district court, and again on May 17 and May 24, 2020, after the district court denied their motion for a temporary restraining order and preliminary injunction and the Seventh Circuit denied their emergency motion for injunction pending appeal. And although applicants style their Application as an “emergency” that requires resolution before May 31, 2020 (the date on which they will celebrate Pentecost), they waited 11 days after the Seventh Circuit denied their request for an injunction pending appeal to file the Application. Applicants’ delay in seeking relief is inconsistent with their claim of irreparable harm and another reason to deny the Application. See, e.g., Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1318 (1983) (Blackmun, J.) (applicant’s “failure to act with greater dispatch tends to blunt his claim of urgency and counsels against grant of a stay”); Beame v. Friends of the Earth, 434 U.S. 1310, 1313 (1977) (“The applicants’ delay in filing their petition and seeking a stay vitiates much of the force of their allegations of irreparable harm.”).
Applicants seek to excuse their delay in filing the Application by claiming that in a letter dated May 23, 2020, officials with the City of Chicago threatened

3
action, including “destruction of [applicant Elim’s] property without process.” App. ii.2 But, as of the date of this filing, Chicago has not taken any enforcement action against Elim since its May 23 letter, instead preferring to work with Elim (and other non-compliant individuals and entities) to bring them into compliance with measures, including EO32, designed to protect the public health and safety. And a Chicago official has publicly stated that Chicago “‘doesn’t intend to demolish churches without due process or in any fashion in response to violations of the stayat-home order.’”3
Applicants also suggest that “a deepening circuit split as to the constitutionality of emergency executive orders like [EO32]” prompted the Application. App. ii-iii. However, even if the circuits were divided on any question presented by this case (and they’re not), to obtain the extraordinary remedy of an injunction pending appeal—which “grants judicial intervention that has been withheld by lower courts”—applicants must show that their rights are “indisputably
2 The emergency application is cited as “App.__.” The appendix attached to that application is cited as “Appx., Ex. __ at ___,” and because it is not paginated, the cited page number indicates the page’s location in the exhibit. Citations to the district court docket are identified by the docket number and page number if applicable, e.g., Doc. 2 at 1. Similarly, the Seventh Circuit docket is cited as 7th Cir. Doc. __ at __. 3 Tom Shuba, Facing fines and threat of closure, churches continue to hold services: There is not going to be a stand down, Chicago Sun Times (May 24, 2020) https://chicago.suntimes.com/coronavirus/2020/5/24/21269156/facing-threat-closurecity-encouragement-trump-churches-hold-services.

4
clear.” Lux v. Rodrigues, 561 U.S. 1306, 1307 (2010) (Roberts, C.J.) (internal quotations omitted). They cannot come close to making this showing.
As the Seventh Circuit correctly held, EO32 is constitutional under the deferential framework this Court established for government actions taken in response to public health emergencies in Jacobson v. Massachusetts, 197 U.S. 11 (1905). EO32 protects the residents of Illinois from an ongoing crisis, and it does not, beyond all question, violate applicants’ rights to religious liberty. Applicants may avail themselves of many avenues of worship, including online, drive-in, and limited indoor in-person services.
And, as the Seventh Circuit further held, even if a more heightened form of scrutiny applied, applicants are unlikely to prevail on the merits of their constitutional claims. EO32—which prohibits comparable secular conduct, such as gatherings at schools, theaters, and concert halls—is content neutral and does not target religious practices. Furthermore, the fact that the EO32 allows more than ten people in some other types of establishments (like grocery stores) does not provide evidence of religious animus because those activities do not pose the same danger to the spread of COVID-19 as religious gatherings do. Indeed, scientific research demonstrates that when an individual speaks or sings, they project respiratory droplets to which the virus attaches. The droplets can remain suspended in the air for several minutes, travelling several feet and putting others at risk of inhaling the virus. Accordingly, the Centers for Disease Control and Prevention (“CDC”) have emphasized that in-person gatherings centering around

5
verbal interactions pose a unique, acute risk of spreading the virus. EO32 follows this guidance and regulates activity because of the health risks posed, not the religious expression involved.
Applicants are also unlikely to prevail on their statutory claims. As the Seventh Circuit held, the Eleventh Amendment bars applicants’ challenge under Illinois’ Religious Freedom Restoration Act (“IRFRA”), because the State has not unequivocally consented to suit in federal court. And applicants have forfeited their claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which they did not brief in either the district court or in their motion for injunction pending appeal in the Seventh Circuit. Forfeiture aside, applicants are unlikely to succeed on the merits of this claim, as that act applies to landmarking and zoning laws, not the type of action at issue here.
Finally, applicants claim that without injunctive relief, restrictions on the size of their gatherings will be lifted “no sooner than 12 to 18 months from now, and all subject to change at any time,” under the Governor’s plan to restore Illinois to normal functions. App. 6 (bold deleted). But, as explained, EO32 will expire on May 29, 2020, and applicants’ concern about limitations on the size of their religious gatherings after that date is speculative.
STATEMENT OF THE CASE A. The COVID-19 pandemic
COVID-19 is a novel severe acute respiratory illness that spreads easily through respiratory transmission, including by asymptomatic individuals. See

6
Appx., Ex. C at 1; Doc. 21 at 14. The virus has infected millions of people throughout the world and claimed the lives of hundreds of thousands. Appx., Ex. C, at 1. As of May 28, 2020, Illinois ranks third among States in the highest amount of cases nationwide, with 115,833 individuals infected and 5,186 deaths.4 Cook County, where applicants are situated, has the highest rate of infection in the country.5 For months, millions of Americans, including Illinois residents, have fought to abate the virus by staying home, tempering the spread of the virus and reducing the estimated death toll.6 Unfortunately, however, the threat of the virus has not passed, and there remains no vaccine or treatment available for COVID-19, or evidence that recovered individuals are immune to a second infection. See Docs. 1-6, 1-7; see also Appx., Ex. C at 1.
Given these dangers, the CDC urges Americans to “not gather in groups” and avoid “mass gatherings,” and cautions that “[e]veryone should wear a cloth face cover when they have to go out in public”7 because “the virus can spread between people interacting in close proximity—for example, speaking, coughing, or
4 State of Illinois; Coronavirus (COVID-19) Response, https://coronavirus.illinois.gov/s/ (updated May 28, 2020); Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/ 2020/us/coronavirus-us-cases.html#states (updated May 28, 2020). 5 Coronavirus Resource Center, John Hopkins University & Medicine, United States Cases, https://coronavirus.jhu.edu/us-map (updated May 25, 2020). 6 See Caitlin Owens, Leading coronavirus modeling shows that social distancing is working, Axios (Apr. 11, 2020), https://www.axios.com/coronavirus-deathsprojections-chart-f2725a44-160d-487a-87f5-7c54cad6a1b0.html. 7 CDC, How to Protect Yourself and Others, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html (updated Apr. 24, 2020).

7
sneezing—even if those people are not exhibiting symptoms.”8 Because “gatherings present a risk for increasing the spread of COVID-19,” the CDC recommends that communities of faith “limit the size of gatherings in accordance with the guidance of directives of state and local authorities.”9 B. The Governor’s measures to protect Illinois residents
Faced with this unprecedented and ongoing public health emergency, the Governor proclaimed the COVID-19 pandemic a disaster on March 9, 2020, and issued a series of executive orders to stop the spread of COVID-19 and enhance the availability of treatment. See Docs. 1-1, 1-2, 1-3, 1-4, 1-5. On March 20, the Governor issued a stay-at-home directive, which required Illinoisans to practice social distancing by limiting non-essential activity outside their homes, remaining at least six feet apart from others, and refraining from gathering in groups of more than ten people. See Doc. 1-4 at 1-4. Likewise, the order required non-essential businesses and schools to close, and essential businesses to limit their operations. Id. at 2. The Governor issued another stay-at-home order on April 1, which contained many of the same limitations. Doc. 1-5. at 2-5.
On April 30, 2020, the Governor issued EO32, which was the governing stay-at-home order when applicants filed this action. A2, Ex. B. He explained that
8 CDC, Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-facecover.html. 9 CDC, Interim Guidance for Communities of Faith (May 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/php/faith-based.html.

8
the virus continues to spread globally and in Illinois; indeed, 141 Illinoisans had perished from COVID-19 just one day earlier. See id. at 2; Doc. 1-7 at 2. The Governor relied on modeling data showing that stay-at-home measures had proven, and continued to be, critical in inhibiting the spread of the virus and ensuring that Illinois was equipped to treat infected individuals. A2, Ex. B at 2-3. He also explained that without these measures, the mortality rate would be 10 to 20 times higher and the State would run out of hospital beds, ICU beds, and ventilators.10 Id. at 2.
EO32 reflected the evolving circumstances of the COVID-19 pandemic: it allowed more personal and business activity than the previous orders, yet continued to emphasize the need to adhere to social distancing and other public health guidance. The order continued the stay-at-home directives, including the prohibition against all public and private gatherings of people who do not share a household, except for certain permitted purposes. Id. at 4-5. Any permitted gatherings were limited to a maximum of ten people unless otherwise noted. Id. Of particular import to applicants, the order expressly declared the free exercise of religion to be an essential activity by permitting Illinois residents to leave their homes for religious practice as long as they:
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
10 For example, as of April 30, 2020, Illinois had 32,010 hospital beds, with only 33% available. Doc. 1-7 at 3. Without a stay-at-home order, the State would require more than 100,000 beds. Id.

9
houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregants.
Id. at 5-6. The order continued to prohibit all gatherings at secular establishments
such as museums, movie theaters, and concert clubs. Id. at 5.
Taking into account both the ongoing threat of COVID-19 and the State’s
success in limiting the spread of the virus, the Governor announced today, May 28,
2020, that he will not be renewing the ten-person limit on religious gatherings,
which expires on May 29, or imposing other requirements.11 Instead, the Illinois
Department of Public Health will post “guidance, not mandatory restrictions for all
faith leaders to use in their efforts to ensure the health and safety of their
congregants.”12 Per the Governor’s announcement today, religious organizations
are no longer subject to any of the gathering restrictions in any phase.
This announcement is consistent with the Governor’s intention to reopen
Illinois in accordance with scientific principles and public health guidance, as
11 On May 28, 2020, at his daily press briefing regarding COVID-19, the Governor explained the following, regarding the expiration of EO32 as it applies to religious gatherings, specifically: “We will also be posting recommendations for houses of worship, providing more guidance for houses of worship in phase three. Having received many plans and ideas from responsible faith leaders, IDPH has reviewed many detailed proposals and has provided guidance, not mandatory restrictions for all faith leaders to use in their efforts to ensure the health and safety of their congregants. This includes suggestions on capacity limits, new cleaning protocols indoor gatherings of 10 persons or less a reduction of activities like sharing food, and the safe conduct of outdoor congregating. The safest options remain remote and driving services, but for those that want to conduct in person activities, IDPH is offering best practices.” May, 2020 COVID-19 Press Update supra note 1. 12 Id.; see also Ill. Dep’t of Pub. Health, COVID-19 Guidance for Places of Worship and Providers of Religious Services supra note 1.

10
outlined in his five-phase Restore Illinois plan. See Appx., Ex. E at 3. Guided by health metrics, the plan maps out how restrictions for different regions of the State will relax as the rates of infection and hospital admissions due to COVID-19 plateau and then decline. Id. at 3-4. Illinois will enter Phase 3 in two days,13 because the rates of infection and hospital admission are stable or declining. Id. at 8. All gatherings of ten people will be allowed, and some non-essential businesses may open with capacity limits and other safety precautions. Id. Phase 4, which permits gatherings of 50 people, will begin when the infection rates continue to decline. Id. at 9. And, finally, regions of Illinois will enter Phase 5, which does not limit gatherings, when there are “no new cases over a sustained period,” or there is a vaccine or treatment. Id. at 10.
Indeed, the plan was always meant to be a framework to provide “a safe and deliberate path forward” for Illinois, subject to update as the situation in Illinois evolves and research develops. Id. at 3. The Governor has recognized that “worship is as essential as food and water” to many, and so he has been “collaborat[ing] with faith leaders to ensure that they can hold services and safe and creative ways that allow for worship.”14 And, as shown by the Governor’s announcement today, he has done so.
13 See May 28, 2020 COVID-19 Press Update supra note 1. 14 Ill. Dep’t of Pub. Health, Daily COVID-19 Press Briefings, May 22, 2020 COVID19, Press Update, http://www.dph.illinois.gov/topics-services/diseases-andconditions/diseases-a-z-list/coronavirus/media-publications/daily-pressbriefings?page=1; Matt Masterson, Outdoor, Drive-In Religious Services Allowed in Next Phase of Illinois’ Reopening Plan, Wttw News (May 22, 2020),

11
C. Applicants file suit and repeatedly violate EO32 Applicants, two churches, seek to hold indoor, in-person religious services in
excess of ten people. Doc. 1 at 20. On May 2, 2020, they informed the Governor that they would resume larger in-person gatherings on May 10, 2020, “irrespective of how long [the Governor] or the Courts take to vindicate our inalienable and nonnegotiable rights.” Doc. 1-12 at 2, 4. A few days later, on May 7, 2020, their counsel sent a letter to the Governor, threatening to take “additional action” if the Governor did not rescind the ten-person limit by that afternoon. Doc. 1-22 at 1. That same day, receiving no response, applicants filed a lawsuit, seeking a TRO and preliminary injunction enjoining the Governor from enforcing the 10-person limit against them. Doc. 1 at 40-41. They also sought a declaration that the limit on inperson religious gatherings was unconstitutional, both facially and as applied to them, and that the Governor had violated applicants’ rights under RLUIPA and IRFRA. Doc. 1 at 41-42.
The district court ordered expedited briefing, but given the time constraints, denied applicants’ request for injunctive relief as to their planned services on May 10, 2020. See Doc. 13. Applicants still held in-person gatherings exceeding the tenperson limit that day. App. 9-11. Pictures submitted by Applicant Elim showed that many attendees did not wear face coverings, see id. at 10-11, contrary to CDC recommendations.
https://news.wttw.com/2020/05/22/outdoor-drive-religious-services-allowed-nextphase-illinois-reopening-plan (quoting the Governor at press conference).

12
On May 13, 2020, the district court denied applicants’ motion for a TRO and preliminary injunction. Appx., Ex. C. The court determined that applicants had a “less than negligible” chance of success on the merits of their claims, id. at 8-10, and that “[t]he harm to [applicants] if the Order is enforced pales in comparison to the dangers to society if it is not,” id. at 11. An injunction, the court reasoned, would “risk the lives of [applicants’] congregants, as well as the lives of their family members, friends, co-workers and other members of their communities with whom they come in contact.” Id. That same day, applicants filed a notice of appeal, Doc. 34, and sought an injunction of the district court’s order pending appeal, Doc. 36, which the district court denied, Doc. 39.
On Friday, May 15, 2020, applicants sought an injunction pending appeal and expedited briefing from the Seventh Circuit, asserting that the executive orders inflicted irreparable harm on them each Sunday that they could not worship. 7th Cir. Doc. 6-1. The Governor did not object to expediting the briefing but opposed the request for an injunction pending appeal. 7th Cir. Doc. 14. The court issued its decision denying the request for an injunction on Saturday, May 16. Appx., Ex. A. The court allowed expedited briefing, which will complete on June 5, 2020, with oral argument to be held on June 12, 2020. Id.
Despite the Seventh Circuit’s order, applicants held in-person religious services exceeding ten people the very next day, and have continued to hold such services, undeterred by two federal court orders rejecting their requests and citations. See App. 12-13; Appx., Ex. G. Accordingly, on May 23, 2020, the Chicago

13 Department of Public Health sent the pastor of applicant Elim a Notice of Abatement, urging him to cease gatherings of more than ten people, which “can result in the unintentional spread of the disease to some of [Chicago’s] most vulnerable residents.” Appx., Ex. F at 2-3. The Department warned that any additional gatherings in excess of ten people would be declared a public nuisance, and explained that the Department has authority to enjoin public nuisances or begin summary abatement proceedings. Id. at 2. A City of Chicago official has publicly explained that the city “doesn’t intend to demolish churches without due process or in any fashion.”15
15 Shuba, supra note 3.

14
ARGUMENT At every stage of this case, courts have acted quickly to expedite briefing and rule on applicants’ requests for injunctive relief. Applicants have ignored these orders and continued to violate EO32. Now, 11 days after the Seventh Circuit denied their request for injunction pending appeal, applicants repair to this Court, seeking extraordinary relief by the weekend. Because the Governor announced today that he will not renew the ten-person limit on in-person religious gatherings, and that limit will expire on May 29, 2020, applicants’ request is moot and should be denied on that basis alone. And even if the Governor had intended to continue this limit, as detailed below, applicants’ request should be denied. They are unlikely to succeed on the merits of their claim, let alone show that their rights are indisputably clear, and they will not suffer irreparable harm absent an injunction. I. Applicants Seek The Extraordinary Relief Of An Injunction Pending Appeal, Not A Stay Of A Judicial Decision. Although applicants cite, among other things, U.S. Sup. Ct. R. 23, see App. i, 13—which sets forth the procedures for seeking a stay of a lower court’s judgment— they are not in fact requesting such relief from this Court. Rather, what they seek is far more significant: an affirmative injunction pending appeal. See id. at i, 1, 40; see also 28 U.S.C. § 1651(a); U.S. Sup. Ct. R. 20(1). These requests are not the same; an “injunction and a stay have typically been understood to serve different purposes.” Nken v. Holder, 556 U.S. 418, 428 (2009). Unlike a stay, an injunction pending appeal “does not simply suspend judicial alteration of the status quo”; it alters the status quo and “grants judicial

15
intervention that has been withheld by lower courts.” Lux, 561 U.S. at 1307 (internal quotations omitted). Granting such relief thus “demands a significantly higher justification” than that needed for a stay. Ohio Citizens for Reasonable Energy, Inc. v. Nuclear Regulatory Comm’n, 479 U.S. 1312, 1312 (1986). “[A]n applicant must demonstrate that the legal rights at issue are indisputably clear.” Lux, 561 U.S. at 1307 (internal quotations omitted). Given its extraordinary nature, “injunctive power is to be used sparingly and only in the most critical and exigent circumstances.” Id. (internal quotations omitted); see U.S. Sup. Ct. R. 20(1) (“Issuance by the Court of an extraordinary writ authorized by 28 U.S.C. § 1651(a) is not a matter of right, but of discretion sparingly exercised.”). Those circumstances are not met here, where applicants delayed for 11 days, acted in contravention of two federal court orders, and failed to carry their burden under the applicable standard.
Applicants cannot even satisfy the comparatively lower burden of a stay, which requires demonstrating four things. Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980). First, the applicant must show a “significant possibility” that four of the Court’s Justices would grant a writ of certiorari in the case. Am. Trucking Ass’ns, Inc. v. Gray, 483 U.S. 1306, 1308 (1987) (internal quotations omitted). Second, the applicant must explain why a majority of the Court would then reverse the appellate court’s judgment. Id. Third, the applicant must illustrate that irreparable harm will likely result if such relief is not granted. Id. Finally, the applicant must demonstrate that the equities favor granting the relief, which

16
includes balancing the relative harms to the applicant and respondent, as well as the interests of the public. Rostker, 448 U.S. at 1308. As explained below, considering these factors, applicants have not justified the exercise of this Court’s discretion to grant such rare relief in this case. II. A Majority Of This Court Is Unlikely To Reverse The Seventh
Circuit’s Decision. As noted, EO32 will expire on May 29, 2020, and the Governor does not intend to renew the 10-person restriction on in-person religious gatherings or impose other, similar restrictions. Accordingly, applicants’ challenge to the validity of the Governor’s restrictions on in-person religious gatherings to prevent the spread of COVID-19 is therefore moot. Lewis, 494 U.S. at 477-78. This Court, therefore, is unlikely to grant a writ of certiorari in this case, and even if it does so, it is unlikely to reverse on the merits. In any event, the Seventh Circuit was correct on the merits. Applicants sought an injunction pending appeal from the Seventh Circuit on the bases that the ten-person limit on in-person religious gatherings allegedly violates their right to free exercise and under IRFRA. The Seventh Circuit determined that applicants are unlikely to prevail on their free exercise claims because the Governor also limited comparable secular gatherings in which “speech and singing feature prominently and raise risks of transmitting the COVID-19 virus.” Appx., Ex. A at 2. The court also determined that applicants may not seek relief against state officials under IRFRA, a state statute, in federal court. This Court is likely to reject

17
applicants’ free exercise and IRFRA claims for the same reasons, and it should not
consider their remaining claims, which were forfeited.
A. The executive order does not violate applicants’ right to free exercise of religion.
As detailed below, the Seventh Circuit appropriately utilized a deferential
standard of review for evaluating the Governor’s actions to protect the public from
the COVID-19 pandemic. But even if this Court applies heightened standards of
First Amendment scrutiny, applicants are unlikely to succeed on the merits of their
free exercise claim. Indeed, the Seventh Circuit’s decision is consistent with at least
14 decisions across the country denying requests for TROs or preliminary injunctive
relief in challenges to similar emergency restrictions on gatherings.16
16 See, e.g., South Bay United Pentecostal Church v. Newsom, No. 20-55533, 2020 WL 2687079, at *1 (9th Cir. May 22, 2020), ECF No. 29; Antietam Battlefield KOA v. Hogan, No. CV CCB-20-1130, 2020 WL 2556496, at *8 (D. Md. May 20, 2020); Spell v. Edwards, No. CV 20-00282-BAJ-EWD, 2020 WL 2509078, at *1 (M.D. La. May 15, 2020); Calvary Chapel of Bangor v. Mills, No. 1:20-CV-00156-NT, 2020 WL 2310913, at *7 (D. Me. May 9, 2020); Cross Culture Christian Ctr. v. Newsom, No. 220-CV-00832-JAMCKD, 2020 WL 2121111, at *5 (E.D. Cal. May 5, 2020); Cassell v. Snyders, No. 20 C 50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020), at *7; Lighthouse Fellowship Church v. Northam, No. 2:20-CV-204, 2020 WL 2110416 (E.D. Va. May 1, 2020), at *4; Gish v. Newsom, No. EDCV 20-755, 2020 WL 1979970, at *5 (C.D. Cal. Apr. 23, 2020); Legacy Church, Inc. v. Kunkel, No. CIV 200327, 2020 WL 1905586 (D.N.M. Apr. 17, 2020); Davis v. Berke, No. 1:20-CV-98, 2020 WL 1970712 (E.D. Tenn. Apr. 17, 2020); Abiding Place Ministries v. Wooten, No. 3:20-cv-00683 (S.D. Cal. Apr. 10, 2020), ECF No. 9; Tolle v. Northam, No. 1:20cv-00363 (E.D. Va. Apr. 1, 2020), ECF No. 5; Nigen v. New York, No. 1:20-cv-01576 (E.D.N.Y. Mar. 29, 2020), ECF No. 7; Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Sup. Ct. Mar. 25, 2020).

18
1. A deferential standard of review applies to public health emergencies.
This Court has “long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute.” Bowen v. Roy, 476 U.S. 693, 699 (1986). Among other limitations, “[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944). Therefore, to balance constitutional liberties with the need for government action during public crises, the Court has long eschewed heightened tiers of scrutiny when analyzing government measures to protect the public during emergent circumstances. Instead, courts afford the government discretion to address the exigencies of a public health crisis, such as the COVID-19 pandemic, while respecting the core of constitutional freedoms.
These cases, which both the district court and the Seventh Circuit applied, see Appx., Ex. A, at 2, Ex. C at 4-6, recognize that constitutional protections may need to yield for purposes of public health and safety during epidemics of contagious disease. In Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), this Court recognized that a “community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27 (state compulsory vaccination law enacted during smallpox epidemic did not violate Fourteenth Amendment). In such situations, “the safety of the general public may demand” regulations that restrict individual rights. Id. at 29. And “[t]he mode or manner in which those results are to be accomplished is within the discretion of the

19
state.” Id. at 25. This means that such actions will be upheld if they (1) have “a real or substantial relation” to the public health and safety and (2) do not constitute “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 31. Put another way, unless the executive exercises its authority in “an arbitrary, unreasonable manner” or “go[es] so far beyond what was reasonably required for the safety of the public,” this Court will not “usurp the functions of another branch of government.” Id. at 28. Lower courts have applied similar principles in the context of emergency powers. See, e.g., United States v. Chalk, 441 F.2d 1277, 1280 (4th Cir. 1971); 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) (same); Moorhead v. Farrelly, 723 F. Supp. 1109, 1113 (D.V.I. 1989) (upholding curfew because aftermath of hurricane demanded “broad discretion . . . for the executive to deal with an emergency situation”) (internal quotations omitted).
Because the COVID-19 crisis involves the spread of a contagious disease and calls for swift, decisive executive action during an emergency, this deferential standard applies here. And, as both lower courts held, EO32 is constitutional under this standard because it is a reasonable restriction on the free exercise of religion in an effort to protect Illinois and its residents from the COVID-19 pandemic. To begin, there is no serious dispute that the order is related to the public health. On the contrary, the order sought to “protect[] the health and safety of Illinoisans” from COVID-19, Appx., Ex. D at 2, from which more than 5,000 Illinois residents have

20
already died.17 It cited data demonstrating that without a stay-at-home order, deaths would be 10 to 20 times greater, and the State would lack sufficient hospital beds and ventilators. Id. at 2. The restriction is also consistent with CDC guidance. Id. at 2.18 Further, because the virus spreads invisibly and rapidly, including by asymptomatic individuals, the temporary prohibition on gatherings of more than ten people has been necessary to protect the public. See Binford v. Sununu, No. 217-2020-cv-00152 (N.H. Sup. Ct. Mar. 25, 2020), Order at 1519 (facts set forth in executive order and in national guidance provided adequate factual basis for state restriction on gatherings).
Additionally, the order does not “beyond all question” invade the right to free exercise, Jacobson, 197 U.S. at 32, or “go so far beyond what was reasonably required for the safety of the public,” id. at 28. It expressly permits online and drive-in services, as well as in-person services of ten people or less that comply with the social distancing requirements. Indeed, applicant Elim has been utilizing online platforms since long before the pandemic. Its website showcases two videos, provides links enabling users to live stream services, and contains video archives dating back to 2014. Doc. 21 at 39. In fact, its YouTube channel includes a recording of the church’s May 10 service, which was held in violation of Executive Order 2020-32. Doc. 33 at 8. Thus, under the executive order, “a wide swath of
17 See Coronavirus in the U.S., supra note 4. 18 See CDC, Interim Guidance, supra note 9. 19 Available at https://www.courts.state.nh.us/caseinfo/pdf/civil/Sununu/ 031920Sununu-obj.pdf.

21
religious expression remains untouched.” Gish v. Newsom, No. ED-CV-20755JGBKKX, 2020 WL 1979970, at *5 (C.D. Cal. Apr. 23, 2020). Although applicants prefer to hold larger in-person services, experience shows that such gatherings have facilitated the spread of COVID-19. During religious in-person services, people are stationary in close quarters for extended periods of time, during which they are often speaking and singing out loud, thereby increasing the risk that infected individuals will project respiratory droplets that contain the virus and infect others. Doc. 21 at 15-16. As such, the CDC has recommended limiting such gatherings.20
Some places of worship have ignored these recommendations (and state restrictions) and nonetheless held large in-person services in the past weeks, leading to outbreaks of the virus. In southern Illinois, a county has experienced a surge in COVID-19 cases over the past few days, most connected to a local church that had been holding in-person services in excess of ten people.21 Similarly, in California, for example, an in-person service held on Mother’s Day led to nine cases of COVID-19—40% of the county’s total.22 As another example, a church in Germany held a service in early May, that followed government guidelines and implemented social distancing measures but still led to at least 107 cases of COVID-
20 CDC, Interim Guidance, supra note 9. 21 Steph Whiteside, Jackson County Experiences Surge in COVID-19 Cases, WSIU News (May 27, 2020), https://news.wsiu.org/post/jackson-county-experiences-surgecovid-19-cases#stream/0. 22 Cnty. of Medocino, Cal., COVID-19 News, Health Officer Update (May 24, 2020), https://www.mendocinocounty.org/Home/Components/News/News/5135/3242.

22
19.23 Unfortunately, the reality is that, given the close quarters and verbal interactions involved in such gatherings, outbreaks of the virus have been traced back to religious services around the world.24
Applicants advance four reasons for why this Court should ignore Jacobson’s framework. But because applicants did not present these arguments to either lower court when seeking a stay, they are forfeited. See Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1978 (2016). In any event, none has merit. Initially, they contend that Jacobson cannot displace strict scrutiny because it predated several of this Court’s cases applying heightened scrutiny in First Amendment cases. App. 30 & n.13. But Jacobson remains good law. The Court was aware of Jacobson when it established heightened tiers of scrutiny, and it did not modify or overrule Jacobson’s deferential framework. To the contrary, the Court has recognized Jacobson’s continuing vitality. See Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (“‘There are manifold restraints to which every person is necessarily subject for the common good.’”) (quoting Jacobson, 197 U.S. at 26).
There is also no merit to applicants’ argument that Jacobson sets forth a standard akin to strict scrutiny. App. 29-30. As discussed, Jacobson provides that actions taken in response to a public health emergency should be upheld so long as
23 Zeeshan Aleem, One German church service resulted in more than 100 coronavirus infections (May 24, 2020), https://www.vox.com/2020/5/24/21268602/ germany-church-coronavirus-lockdown. 24 See Doc. 21 at 14 (one infected individual’s attendance at a religious service in South Korea spread COVID-19 to more than 5,000 individuals, and a church choir practice in Seattle led to the infection of 45 and the death of two).

23
they (1) have “a real or substantial relation” to the public health and safety and (2) do not constitute “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” 197 U.S. at 31. This language, as numerous courts have recognized, sets forth a deferential standard. See supra p. 19.
Applicants’ attempt to distinguish Jacobson because it did not involve First Amendment rights fares no better. App. 31. In Jacobson, this Court did not cabin its holding to the Fourteenth Amendment challenge before it. Rather, it recognized “the authority of a state to enact quarantine laws and health laws of every description,” and emphasized that “‘[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety [and] health . . . of the community.’” 197 U.S. at 26 (quoting Crowley v. Christensen, 137 U.S. 86, 89 (1890)) (emphasis added). This Court later cited Jacobson favorably in Prince. 321 U.S. at 166-67. Furthermore, the Court has upheld quarantine and health laws against a variety of constitutional challenges. See, e.g., Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of La., 186 U.S. 380, 387-393 (1902) (upholding quarantine law against Commerce Clause challenge); Zucht v. King, 260 U.S. 174, 176 (1922) (exclusion of non-vaccinated children from school district did not violate due process and equal protection rights).
And finally, applicants submit that Jacobson is distinguishable because it was a neutral law of general applicability. App. 31. As explained, infra pp. 25-27, the government action at issue here is neutral and generally applicable. But,

24
regardless, Jacobson said nothing about whether the law at issue there was neutral or generally applicable, and so it did not condition its reasoning on these aspects of the law. Instead, this Court explained, it would not second-guess the “mode or manner” in which the State acted to protect the public health and safety, Jacobson, 197 U.S. at 25, so long as the State did not “go so far beyond what was reasonably required for the safety of the public,” id. at 28. That principle governs regardless of the facial neutrality or general applicability of the state action.
The Governor recognizes that constitutional rights, including the right to exercise one’s religion, remain precious. But, as described above, he is not plainly invading the right to free exercise of religion. Rather, he properly limited this right to protect the public from an unprecedented danger while permitting applicants and other religious organizations many ways to continue to assemble and worship. And now that the situation in Illinois is improving, he is lifting this restriction. As such, appellants have failed to show that they have a “significant possibility” of prevailing on their free exercise claim.
2. The order does not violate applicants’ right to free exercise under either rational basis or strict scrutiny.
When the deferential Jacobson framework is inapplicable, this Court analyzes free exercise claims under rational basis or strict scrutiny review. Rational basis review “is very deferential to the state;” the law will be upheld if it has a “rational relationship between the law and some legitimate governmental purpose.” Valenti v. Lawson, 889 F.3d 427, 430 (7th Cir. 2018). To trigger such review, the law must be “neutral” and “generally applicable.” Emp’t Div. v. Smith,

25
494 U.S. 872, 879 (1990). Otherwise, the law must survive strict scrutiny by being “narrowly tailored” to advance a “compelling government interest.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). Here, rational basis review applies, but, regardless, applicants are unlikely to succeed on the merits of their free exercise claim under either standard of review.
i. Rational basis review applies here. Rational basis applies, and is easily met, here. To begin, EO32 is neutral. A law is not neutral if “the object of the law is to infringe upon or restrict practices because of their religious motivation.” Lukumi, 508 U.S. at 533. Courts will examine the face of the law, id., as well as “the effect of a law in its real operation,” id. at 535, and the “specific series of events leading to the enactment or official policy in question,” id. at 540. EO32 is neutral both on its face and in effect. As the district court correctly observed, applicants “have provided no evidence that the Order targets religion.” A1, Ex. A at 7. On the contrary, it expressly permits limited religious gatherings. And to the extent it imposes limitations on the manner of gatherings, its limitation are consistent with the Governor’s other directives. Among other directives, EO32 limits most gatherings and directs people to stay home for non-essential activities. A2, Ex. B at 4-5. Beyond facial neutrality, applicants have set forth no evidence that the object and effect of the order is to target religion. Instead, the order was designed to prevent the spread of a highly contagious virus by minimizing in-person gatherings. Consistent with this intent, the Governor tightened the restrictions as the situation worsened, but has relaxed

26
restrictions as it improves, see id. at 1-2, as evidenced by the Governor’s recent announcement that he will lift restrictions on in-person religious gatherings now that the infection rate is stabilizing in Illinois.
EO32 is also generally applicable. A law is not generally applicable if it “in a selective manner imposes burdens only on conduct motivated by religious belief.” Lukumi, 508 U.S. at 543. The relevant inquiry is whether secular conduct “that endangers the [government’s] interests in a similar or greater degree” receives favorable treatment, signaling an intent to target religious practice. Id. Applicants have set forth no evidence that this is happening here. Instead, the order applies both to religious and comparable secular conduct at every tier of restriction: there is a blanket prohibition on all public and private gatherings, and permitted gatherings are subject to a ten-person limit regardless of whether they are religious or secular in nature. Appx., Ex. D at 4-5. Exemptions from the tenperson limit are equally applicable to secular and analogous counterparts. For example, all hospitals and all charitable and social services organizations are exempted, regardless of religious or secular affiliation. Id. at 6, 8.
Because EO32 is neutral and generally applicable, rational basis review applies. Applicants do not, and could not seriously, contend that the Governor’s order fails rational basis review. As noted, COVID-19 is easily transmitted by respiratory droplets, and there have been several instances where infected individuals spread the disease to others by attending in-person religious services. And EO32 is consistent with CDC guidance to prevent such outbreaks. The order is

27
thus rationally related to the legitimate government interest in protecting the public health.
ii. Applicants’ arguments for applying strict scrutiny lack merit.
Applicants, however, argue that EO32 should be subject to strict scrutiny because it is not neutral or generally applicable, given that it imposes a ten-person limit on worship, but not other essential activities. App. 22-24. This is incorrect. Applicants admit, as they must, that this Court should analyze their gatherings with respect to comparable secular conduct. App. 23. But according to applicants, religious gatherings should be compared to activities “unavoidably involving crowds”—such as “shopping or working at liquor, warehouse, and supercenter stores, id.—instead of conferences or concerts. Applicants cite no evidence for their argument that attending an in-person service with “other people the congregant knows and loves” is not more dangerous than shopping or working with strangers at a Walmart, id. at 24-25, and, in fact, the argument is incorrect.
There are numerous distinctions between these activities. When obtaining supplies like groceries or liquor, “people enter a building quickly, do not engage directly with others except at points of sale, and leave once the task is complete.” Gish, 2020 WL 1979970, at *6. Similarly, people do not go to law or accounting firms “to gather in groups for hours at a time,” Appx., Ex. C at 8, but rather to work at their separate stations. In contrast, religious services are not brief, and they involve communal, verbal interactions among large numbers of people. These distinctions matter because scientific research shows that the virus spreads

28
predominantly through respiratory transmission, not by touching surfaces
containing the virus.25 Speaking produces respiratory droplets that can be inhaled
by others nearby.26 A recent scientific study estimated that one minute of loud
speaking can generate at least 1,000 droplets containing the virus, and the droplets
may float in the air for eight to 14 minutes.27 Moreover, consistent with this
research and guidance, a medical expert explained in an action similar to this one
that
casual contact (briefly passing someone in the aisle of a big box store) entails a much smaller risk of contracting COVID-19 than a group congregating near one another for a longer period, because under the latter circumstance there is ‘prolonged exhalation of respiratory droplets, and the increased likelihood of contacting surfaces with the virus.
Antietam Battlefield, 2020 WL 2556496, at *8 (quoting Decl. of Dr. Clifford Mitchell
¶ 23) (cleaned up). Thus, scientific evidence rebuts applicants’ unsupported
contention that singing and speaking with other congregants is not more dangerous
than activities such as grocery shopping.
Next, for the first time in this action, applicants contest that religious in-
person gatherings are instead more akin to attending school or a concert, which also
involve a communal, verbal experience in an enclosed place, and are completely
25 CDC, How COVID-19 Spreads (May 22, 2020), https://www.cdc.gov/coronavirus/ 2019-ncov/prevent-getting-sick/how-covid-spreads.html. 26 Id. 27 Valentyn Stadnytsky, et al., The airborne lifetime of small speech droplets and their potential importance in SARS-CoV-2 transmission, Proceedings of the Nat’l Acad. of Sciences of the United States of America (May 13, 2020) https://www.pnas.org/content/early/2020/05/12/2006874117.

29
prohibited by EO32. See App. 25. They contend that religious gatherings cannot be compared to such secular gatherings, because those have not been deemed essential. Id. They have forfeited this argument, which is also unpersuasive. See Kingdomware Techs., 136 S. Ct. at 1978. What makes the activities comparable is that they “endanger[ ] the [government’s] interests in a similar . . . degree.” Lukumi, 508 U.S. at 543. Applicants cannot avoid this comparison simply because the Governor has elevated religious gatherings to an “essential” status. Further, applicants ignore that schools have been designated essential. Appx., Ex. D at 9. But unlike places of worship, schools have been closed for classes and lectures, demonstrating that religious gatherings are not disfavored. See id.
Applicants’ argument that EO32 is not neutral in enforcement because the Chicago police and public health officials have targeted them also lacks merit. See AT Br. 31. The executive order states that it may be enforced by state and local law enforcement authorities. Appx., Ex. D at 12. Because applicants violated the order, they have faced enforcement actions. Large secular gatherings have met the same fate. For example, in April, Chicago police issued 4,632 orders for groups to disperse, and arrested 17 individuals who failed to disperse.28 Like others,
28 Chicago Police Issued More Than 4,600 Dispersal Orders, Arrested 17 in Enforcing Stay-at-Home Order in April, NBC Chicago (May 1, 2020), https://www.nbcchicago.com/news/local/chicago-police-issued-more-than-4600dispersal-orders-arrested-17-in-enforcing-stay-at-home-order-in-april/2265076/.

30
applicants have faced enforcement actions because they endangered the public health.29
In short, EO32 is subject to rational basis review, and applicants’ attempts to show otherwise falter.
iii. Alternately, the executive order satisfies strict scrutiny.
Even if strict scrutiny were to apply, EO32 is constitutional because it is “narrowly tailored” to serve a “compelling state interest.” See Lukumi, 508 U.S. at 531. Applicants do not dispute that the Governor’s “efforts to contain the spread of a deadly disease are compelling interests of the highest order.” App. 26-27 (internal quotations omitted). Nor could they; every court to consider this issue—including those upon which applicants rely—has found that the government has a compelling interest in protecting its residents from the rapid spread of COVID-19. See, e.g., Roberts v. Neace, No. 20-5465, 2020 WL 2316679 (6th Cir. May 9, 2020), at *4; Berean Baptist Church v. Cooper, No. 4:20-CV-81-D, 2020 WL 2514313, at *9 (E.D.N.C. May 16, 2020). Instead, applicants argue that this interest is less compelling here because the Governor has not limited gatherings to ten people “for commercial and non-religious purposes.” App. 26. But as explained, this description of EO32 is inaccurate; the Governor has placed limitations on secular
29 Applicants have also not made a hybrid claim deserving of strict scrutiny. See App. 22 n.10. Their “free exercise claim [is] unconnected with any communicative activity,” Smith, 494 U.S. at 882, because gatherings are not inherently expressive conduct, see Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (Conduct that is “expressive only because [the actor] accompanied their conduct with speech explaining it” is not “inherently expressive.”).

31
gatherings that share similar attributes to worship services. Further, EO32 is narrowly tailored to serve this compelling interest in
ensuring the health and safety of the public. As explained, the Governor relied on CDC recommendations and modeling data showing the necessity of stay-at-home directives. See Appx., Ex. D at 2. These measures have slowed the spread of COVID-19, enabling Illinois to ensure that infected individuals (and others in need of hospitalization) receive medical treatment that could not otherwise be made available: without the stay-at-home directives, the death rate in Illinois would have been (and would be) ten to 20 times greater; and the State would require more than 100,000 hospital beds (when it had only 33% of 32,010 beds available as of April 30, 2020, the date on which EO32 was issued), more than 25,000 ICU beds (when it had only 25% of 3,631 available), and more than 20,000 ventilators (when it had only 3,378). See Appx., Ex. D at 2; Doc. 1-7 at 3. Moreover, the restriction is temporary, and will not be renewed when it expires tomorrow, in light of the evolving situation. And it has been crucial in ensuring that Illinois could reach a stage in which greater activity can be safely allowed.30
Applicants do not meaningfully address these facts, and respond instead by asserting that the Governor has not considered less restrictive alternatives employed by several other States. App. 28-29. This is inaccurate. As an initial
30 Applicants posit that under the Restore Illinois plan, they may not be able to hold unlimited gatherings for another 12 to 18 months. App. 6. Their speculation has already proven untrue. And that plan is merely a framework, so any challenge to it is speculative and thus not ripe for judicial review. See Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-08 (2003).

32
matter, the Governor has collaborated with faith leaders throughout this process to find ways for worship services to proceed in a safe manner consistent with the advice of health experts.31 Furthermore, applicants offer no evidence that measures undertaken in other States have proven effective, and in fact, experience proves otherwise. In two of those States, Georgia and Texas, two churches have again closed their doors following COVID-19 outbreaks caused by in-person services.32 Holy Ghost Catholic Church opened on May 2 and closed 16 days later.33 Located in a county with the highest number of COVID-19 cases in Texas, the church limited attendance to 179 congregants in its 900-seat building.34 But three churchgoers and two priests contracted the virus after a service, with one of the priests dying.35 Likewise, Catoosa Baptist Tabernacle closed within a month of opening even though only 25% of its congregation attended services—it, too, employed social distancing measures, such as spacing seating six feet apart and leaving doors open to prevent touching of doorknobs, but nonetheless several families contracted the virus.36 To avoid a similar fate, it has been critical for Illinois to maintain restrictions on religious gatherings over the past months.
31 Daily COVID-19 Press Briefings, May 22, 2020, supra note 25. 32 Lateshia Beachum, Two churches reclose after faith leaders and congregants get coronavirus, Wash. Post (May 22, 2020), https://www.washingtonpost.com/religion/ 2020/05/19/two-churches-reclose-after-faith-leaders-congregants-get-coronavirus/. 33 Id. 34 Id. 35 Id. 36 Id.

33
And even assuming that these other measures were sufficient to protect the residents of those States, heightened protections have been required in Illinois, which ranks third among States with the highest rate of infections, and in Cook County, Illinois, where applicants are located, because it suffers from the highest rate of infection of any county in the country. Thus, EO32 is narrowly tailored to the dire situation in Illinois. Indeed, now that the situation is improving in Illinois, the Governor will be adopting less stringent measures.
B. The Eleventh Amendment bars applicants’ IRFRA claim, which is, in any event, unpersuasive.
The Eleventh Amendment bars actions in federal courts against a State, including state officials acting in an official capacity. Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1496 (2019) (States’ sovereign immunity derives from Constitution and is confirmed by Eleventh Amendment). This jurisdictional bar applies to pendent state law claims even where the court has jurisdiction over the plaintiff’s federal claims. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 919 (1984). Eleventh Amendment immunity will not apply, however, if (1) Congress abrogates the State’s immunity; (2) the State consents to suit; or (3) the plaintiff seeks prospective injunctive relief against a state official for an ongoing violation of federal law under the doctrine announced in Ex parte Young, 209 U.S. 123, 160 (1908). None of the exceptions applies here.
To begin, there is no indication that Congress has unequivocally abrogated the State’s immunity (on the contrary, IRFRA is a state statute). See Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001).

34
Moreover, the State has not consented to suit. A State’s waiver of Eleventh Amendment immunity “stated by the most express language or by such overwhelming implications from the text” as to leave no doubt. Edelman v. Jordan, 415 U.S. 651, 673 (1974 (internal quotations omitted)). Put another way, consent must be “unequivocally expressed” so the court is “certain that the State in fact consents to suit.” Sossamon v. Texas, 563 U.S. 277, 284 (2011) (internal quotations omitted). A State does not “consent to suit in federal court merely by stating its intention to sue and be sued . . . or even by authorizing suits against it in any court of competent jurisdiction.” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999) (internal quotations omitted). Accordingly, “a State’s consent to suit in its own courts is not a waiver of its immunity from suit in federal court.” Sossamon, 563 U.S. at 285.
In the IRFRA, the State did not unequivocally consent to suit in federal court. To be sure, the State has consented to suit in its state courts. But nowhere in the statute does Illinois clearly declare that it also consents to suit in federal court. See Sossamon, 563 U.S. at 285. The State’s authorization of suits in “all cases” is insufficient, as even consent to suit “in any court of competent jurisdiction” does not waive Eleventh Amendment immunity. Coll. Sav. Bank, 527 U.S. at 676. Applicants also insist that waiver is present because the language in the IRFRA follows the federal version. App. 34-35. But this Court need not read between the lines as applicants ask. The State knows how to consent clearly to suit in federal court. It did so in Illinois’s State Lawsuit Immunity Act, which provides that “[a]n

35
employee . . . may bring an action under the Age Discrimination in Employment Act of 1967 against the State in State circuit court or federal court.” 745 ILCS 5/1.5. It has not consented to suit in federal court here.37
And finally, the Ex Parte Young exception does not apply here, because it does not extend to alleged violations of state law. Pennhurst, 465 U.S. at 106. Allowing a federal court to grant “relief against state officials on the basis of state law” would contravene the “principles of federalism that underlie the Eleventh Amendment” by intruding on state sovereignty. Id. Here, applicants ask this court to “instruct[ ] state officials on how to conform their conduct to state law,” and thus the Ex Parte Young exception does not apply. Id. And because their claims for injunctive relief are barred by the Eleventh Amendment, so, too, are their claims for declaratory relief. See MSA Realty Corp. v. State of Ill., 990 F.2d 288, 295 (7th Cir. 1993) (citing Green v. Mansour, 474 U.S. 64, 72 (1985)).
But even if this court finds that the Eleventh Amendment does not apply, applicants cannot prevail on the merits of their IRFRA claim. Under IRFRA, the “[g]overnment may not substantially burden a person’s exercise of religion, even if the rule results from a rule of general applicability, unless it demonstrates that
37 Applicants rely on a series of Florida district court cases, see App. 34 n.14, but none of those addressed this Court’s requirement that a state’s waiver must be expressed unequivocally. And several district courts in Florida have determined, to the contrary, that the State did not waive its immunity to claims for declaratory or injunctive relief brought under RFRA. See, e.g., Perry v. Reddish, No. 3:09-CV-403, 2011 WL 13186523, at *7 (M.D. Fla. Jan. 14, 2011); Gray v. Kohl, No. 07-10024-CIV, 2007 WL 3520119, at *6 (S.D. Fla. Nov. 14, 2007).

36
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 ILCS 35/15. Applicants cannot prevail on their IRFRA claim for the same reasons that they lose under strict scrutiny on their free exercise challenge. See supra pp. 30-33.
C. Applicants forfeited their claims under the Establishment Clause and RLUIPA.
Applicants did not raise their Establishment Clause and RLUIPA arguments in their motion for an injunction pending appeal before the Seventh Circuit. See generally 7th Cir. Docs. 6-1, 15. In fact, they did not even brief their RLUIPA argument before the district court in their motion for a TRO and preliminary injunction. See generally Docs. 5, 27, 31. This Court, therefore, should decline to review these forfeited arguments in the first instance, see Kingdomware Techs., 136 S. Ct. at 1978, particularly at this stage of the matter, when the Seventh Circuit appeal is ongoing. Even if it does reach the merits of these arguments, however, it should reject them.
1. The executive order does not violate the Establishment Clause.
As discussed, supra pp. 17-24, the deferential Jacobson standard applies to the constitutional claims presented here. But even if traditional constitutional analysis were invoked, applicants would still not prevail on their Establishment Clause claim.

37
The Establishment Clause “ensur[es] government neutrality in matters of religion. Gillette v. United States, 401 U.S. 437, 449 (1971). It “prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization.” Id. at 450. Against the backdrop of these principles, this Court has announced a variety of frameworks for analyzing Establishment Clause challenges, including the Lemon and coercion tests. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000). Regardless of the test employed, the executive order does not violate the Establishment Clause.
First, EO32 passes the test announced in Lemon, 403 U.S. at 612-13, under which a government action is consistent with the Establishment Clause if (1) it has a secular purpose, (2) its primary effect “neither advances nor inhibits religion,” and (3) it does not “foster an excessive entanglement with religion.”
Under this test, a government’s “stated reasons will generally get deference” unless they are a “sham.” McCreary Cty., Ky. v. ACLU of Ky., 545 U.S. 844, 864 (2005). Here, the Governor promulgated EO32 for a secular purpose, to protect Illinoisans from the spread of COVID-19, see Appx., Ex. D at 1-2; not to “effectively ban[ ]” worship, App. 36. Ignoring that the order is rooted in scientific guidance and consistent with CDC recommendations, applicants claim that the progression of events demonstrates that this reason is a sham. See App. 36. To the contrary, the Governor followed research findings and CDC guidance in tightening restrictions as

38
the spread of the virus accelerated, and, as announced today, plans to relax restrictions given the success in containing the virus.
EO32 also does not have the effect of inhibiting applicants’ religion. It applies to all religious gatherings while permitting several avenues of worship, and it does not disfavor religion compared to analogous secular activities, such as lectures, choir practice, theatrical performances, and concerts, which are prohibited.38
And EO 32 does not create an “excessive entanglement” in religion. “Entanglement is a question of kind and degree.” Lynch v. Donnelly, 465 U.S. 668, 684 (1984). Generally, “to constitute excessive entanglement, the government action must involve intrusive government participation in, supervision of, or inquiry into religious affairs.” Vision Church v. Vill. of Long Grove, 468 F.3d 975, 995 (7th Cir. 2006) (internal quotations omitted). EO32 does not arise to this level of intrusion: it limits the amount of people who can attend an indoor service at one time, similar to how a fire code limits the number of people who can be present in buildings.
38 For the same reasons, the Governor’s order passes the endorsement test, which analyzes the purpose of the government action and asks whether the action “conveys a message of endorsement or disapproval” to a reasonable observer. Books v. City of Elkhart, Indiana, 235 F.3d 292, 302 (7th Cir. 2000) (citing Lynch v. Donnelly, 465 U.S. 668, 690 (1984)(O’Connor, J., concurring)). A reasonable observer would not perceive the Governor’s order, which is based on medical and national guidance, as disapproving of applicants’ religion, or religion in general.

39
Second, EO32 passes the coercion test. In two school prayer cases, this Court has evaluated whether the government action “applied coercive pressure to support or participate in religion.” Freedom from Religion Found., 885 F.3d 1038, 1048 (7th Cir. 2018) (citing Lee v. Weisman, 505 U.S. 577, 587 (1992) and Santa Fe, 530 U.S. at 312). But the Court has never applied this test in a situation comparable to the instant circumstance, where the government has allegedly coerced a plaintiff to refrain from, rather than participate in, religion. Regardless, far from coercing applicants to refrain from religion, the order designates religious gatherings as an essential activity and permits individuals to avail themselves of drive-in, online, and limited in-person religious services.
2. RLUIPA is inapplicable. Forfeiture aside, appellants’ RLUIPA claim must be rejected because EO32 falls outside the scope of that statute, which restricts States’ ability to “impose or implement land use regulation in a manner that imposes a substantial burden on the religious exercise of a person.” 42 U.S.C. § 2000cc(a)(1). RLUIPA defines “land use regulation” as “a zoning or landmarking law, or the application of such a law.” 42 U.S.C. § 2000cc-5(5). Although the executive order is not zoning or landmarking laws, applicants do not even acknowledge this threshold obstacle, which is fatal to their RLUIPA claim. See App. 36-39. Moreover, interpreting RLUIPA to cover a restriction on in-person religious gatherings “‘would raise constitutional questions about the law’s congruence and proportionality.’” Cross Culture Christian, No. 220-CV-00832-JAMCKD, 2020 WL

40
2121111, at *7 (quoting Guru Nanak Sikh Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 986 (9th Cir. 2006)). RLUIPA replaced the portions of the federal RFRA that this Court found unconstitutional as to the States in the City of Boerne v. Flores, 521 U.S. 507, 533 (1997). “To avoid RFRA’s fate, Congress wrote that RLUIPA would apply only to regulations regarding land use and prison conditions.” Guru Nanak, 456 F.3d at 986 (citing Cutter v. Wilkinson, 544 U.S. 709 (2005)). It should not be stretched to apply here. III. The Decisions From Other Circuits Do Not Justify An Injunction.
Applicants insist that this Court’s intervention is necessary to address a “deepening circuit split” as to the constitutionality of orders like EO32, because the Seventh and Ninth Circuits have denied injunctions pending appeal in such cases, while the Fifth and Sixth Circuits have granted them. App. ii. As an initial matter, the existence of a split, if any, weighs against granting an injunction. Where “courts of appeals appear to be reaching divergent results,” an applicant’s rights are not “indisputably clear.” Lux, 561 U.S. at 1308. This is particularly true where, as here, “lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims.” Hobby Lobby Stores, Inc. v. Sebelius, 568 U.S. 1401, 1404 (2012) (Sotomayor, J.). The courts of appeals that have considered similar issues have all done so in the context of motions for injunction pending appeal, and none of them “has issued a final decision granting permanent relief with respect to such claims.” Id. As such, even assuming applicants’ analysis of these decisions is correct—and, it is not—any split would

41
merely demonstrate that applicants’ rights are not indisputably clear. Further, these decisions do not justify an injunction because the Fifth and Sixth Circuit decisions upon which applicants rely do not show that they are likely to prevail on the merits; as now explained, they are inapposite or largely distinguishable. And to the extent that certain aspects of these decisions cannot be reconciled with the decisions of the Seventh and Ninth Circuits, the latter decisions are correct.
To begin, both Sixth Circuit decisions involved more extensive bans on religious services than Illinois’s and are thus are distinguishable. As such, rather than supporting applicants, they confirm that applicants are unlikely to succeed on the merits of their claims. In Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (per curiam), the Governor of Kentucky prohibited both inperson and drive-in religious services, regardless of the number of congregants. Id. at 611. The Sixth Circuit enjoined the ban on drive-in services pending appeal because comparable, secular drive-in services were permitted, but allowed the ban on in-person services to continue in light of the undeveloped record. Id. at 616. In Illinois, drive-in religious services are permitted under EO32. And in Roberts, No. 20-5465, 2020 WL 2316679, the plaintiffs again challenged the total ban on inperson religious services. Id. at *1. This time, the court enjoined the prohibition pending appeal, explaining that, in lieu of a total ban, the State could employ a numerical limitation. See id. (“[i]f the problem is numbers, and risks that grow with greater numbers, then there is a straightforward remedy: limit the number of people who can attend a service at one time”) (internal quotations omitted). The

42
Governor of Illinois did exactly this with EO32, which limits in-person religious
gatherings to ten people or less, and he will not continue even this regulation
beyond May 29, 2020.
To the extent that the Sixth Circuit concluded that Kentucky’s executive
order burdened religious exercise because religious organizations are comparable to
the secular organizations that are not subject to the ten-person limitations in
Illinois, the court’s reasoning was incorrect. See id.; Maryville Baptist, No. 20-5427,
2020 WL 2111316, at *4. As explained, scientific data and the analysis of medical
experts confirms that religious gatherings are not comparable to secular activities
such as grocery shopping (where people enter to pick up supplies and leave) or to
working in an office (where people can work in separate spaces with minimum
verbal interaction).39
39 Three of the district court decisions that plaintiffs cite—Maryville Baptist Church, Inc. v. Beshear, No. 3:20-CV-278-DJH-RSE, 2020 WL 2393359, at *3 (W.D. Ky. May 8, 2020); Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, No. 3:20-CV-00033-GFVT, 2020 WL 2305307, at *5 (E.D. Ky. May 8, 2020); and First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, at *6-7 (D. Kan. Apr. 18, 2020)—are not persuasive for the same reason: these courts incorrectly compared religious services to grocery and other stores selling essential supplies. And the district court in First Baptist made an additional legal error by finding that the State’s orders were not neutral because they “expressly restrict religious activity.” 2020 WL 1910021, at *4. But a restriction’s express reference to a religious activity is not evidence that its “object or purpose” is to burden religious activity. Lukumi, 508 U.S. at 533; see Maryville Baptist, 957 F.3d at 614 (mentioning religious organizations “by name” does not by itself show “disparate treatment”). Additionally, On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv264-JRW, 2020 WL 1820248, at *15, (W.D. Ky. Apr. 11, 2020), is distinguishable because it involved a ban on religious drive-in services while permitting secular drive-in services; again, drive-in services are permitted in Illinois. See Legacy Church, No. CIV 20-0327 JB\SCY, 2020 WL 1905586, at *35 (denying TRO request for limits on gatherings and distinguishing On Fire). Finally, Berean Baptist, No.

43
Likewise, the Fifth Circuit decision in First Pentecostal Church v. City of Holly Springs, Miss., No. 20-60399, 2020 WL 2616687 (5th Cir. May 22, 2019), is inapposite. The district court there denied a request for expedited relief while it was considering the plaintiff’s request for a preliminary injunction. First Pentecostal Church of Holly Springs v. City of Holly Springs Mississippi, No. 3:20CV119 M-P, 2020 WL 2495128, at *6 (N.D. Miss. May 14, 2020). The court explained that it was “unclear” regarding the preemptive effect of the executive orders at issue and what those orders permitted. Id. at *2. The court denied the request for expedited relief because it needed additional briefing on this issue and because the plaintiff had “been proceeding in an excessively reckless and cavalier manner” that endangered their community. Id. at *5-*6. On appeal, the Fifth Circuit recognized that the Governor of Mississippi had since issued new guidance, which the plaintiff appeared willing to follow, so it remanded the matter to the district court. See First Pentecostal Church, No. 20-60399, 2020 WL 2616687, at *1. It enjoined the challenged executive orders in the meantime because the “temporary deferral” of its decision could “effectively be a permanent denial” given the rapidly shifting regulatory scheme, but it also referred the plaintiff to the Governor’s new
4:20-CV-81-D, 2020 WL 2514313, at *7-*8, is inapposite because, there, the order allowed indoor gatherings of more than 10 people if the gathering could not practicably be held outdoors, thereby favoring secular establishments like malls, and it also allowed 50 people to attend funerals without providing any public health rationale for doing so. And, in any event, many courts have upheld executive orders like EO32 against constitutional challenges, see supra note 17, so at most applicants’ cited cases establish that applicants’ rights are not “indisputably clear,” and thus they are not entitled to an injunction, see supra p. 15.

44
guidance. Id. As a result, the Fifth Circuit neither addressed the merits of the plaintiff’s constitutional claims, nor did it clarify whether it was enjoining the executive orders on constitutional, statutory, or preemption grounds. This decision, therefore, does not indicate a “deepening” circuit split or bear on the merits of applicants’ claim here.
And finally, applicants’ contention that “serious confusion” exists among the federal courts as to what standard of review to apply in this emergent circumstance is overstated. App. iii. The Sixth Circuit appeared to conclude that a total ban on in-person services failed the Jacobson framework, see Roberts, No. 20-5465, 2020 WL 2316679, at *4, whereas the Seventh Circuit addressed the separate question of a less restrictive, ten-person limit, and determined that this limit likely passes the Jacobson framework, Appx., Ex. A at 2. And neither the Fifth Circuit nor the Ninth Circuit’s decision opined on whether Jacobson applies. Moreover, all of these circuit decisions were on injunctions pending appeal. These courts should be allowed to develop the issues in the scope of their ongoing appeals before this Court becomes involved, especially because this action is now moot.
In short, the out-of-circuit cases on which applicants rely are either distinguishable or ignore the differences between religious gatherings and the nonanalogous secular activities permitted by EO32. And even if these decisions could be fairly characterized as inconsistent, they would merely demonstrate that applicants’ entitlement to relief is not indisputably clear.

45
IV. Applicants Will Not Suffer Irreparable Harm Absent An Injunction. Applicants argue that they will be irreparably harmed absent an injunction.
App. 39-40. To the extent irreparable harm is even relevant to their request for an injunction, but see Hobby Lobby, 568 U.S. at 1403, applicants are incorrect. Applicants must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. NRDC, 555 U.S. 7, 22 (2008) (emphasis in original). A “possibility of irreparable harm” is insufficient. Id. Applicants have not carried, and cannot carry, this heavy burden. The restriction of which they complain will expire shortly, on May 29, 2020, and the Governor has announced that he will not reimpose it or any similar restriction. Applicants will be free to gather in person in large numbers on Sunday for Pentecost, and they do not need relief from this Court.
And even if the restriction continued, applicants would not suffer irreparable harm. They claim that they are harmed because they cannot exercise “their sincerely held religious beliefs of assembling themselves together to worship God.” App. 39. But applicants have not suffered the loss of their right to free exercise. They resumed indoor in-person services on May 10, 2020, while the case was pending in the district court, and continued to conduct such services even after the Seventh Circuit denied their motion for an injunction pending appeal. Applicants do not need the extraordinary relief of an injunction pending appeal when they will hold in-person services of more than ten people regardless. And, as explained, EO32 reasonably and constitutionally restricted applicants’ right to free exercise, and so they have maintained their right to free exercise.

46
Moreover, applicants’ insistence that they must either violate their religious beliefs or face civil or criminal penalties is untrue. App. 39-40. As noted, the Governor’s order expressly permits online and drive-in services. Applicants cannot argue that online services do not constitute the exercise of religion: they have been providing spiritual guidance online for years before the pandemic began. And, to the extent that their beliefs require in-person assembly inside the church, applicants have not been barred from conducting such services—they may congregate ten individuals at a time, multiple times per day. While applicants have faced enforcement actions, that is because they chose not to adhere to the permitted avenues for services.
For months now, Illinois residents have limited gatherings and activity outside their homes with resolve, protecting themselves, their loved ones, their communities, and essential workers with whom they interact. As a result, the number of infections and deaths is far lower than would have otherwise occurred. And, in mere days, applicants will be able to hold larger in-person services. In the meantime, EO32 has not irreparably harmed them, because they do not, and cannot, dispute that “[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease.” Prince, 321 U.S. at 166.

47

CONCLUSION

For these reasons, the Court should deny the application.

MAY 2020

Respectfully submitted,
KWAME RAOUL Illinois Attorney General
JANE ELINOR NOTZ* Solicitor General
SARAH A. HUNGER Deputy Solicitor General
NADINE JEAN WICHERN PRIYANKA GUPTA
Assistant Attorneys General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-5376
*Counsel of Record

 
 No. 19A1046
IN THE SUPREME COURT OF THE UNITED STATES
ELIM ROMANIAN PENTECOSTAL CHURCH, and LOGOS BAPTIST MINISTRIES,
Applicants,
v.
JAY R. PRITZKER, in his official capacity as Governor of the State of Illinois,
Respondent.
To The Honorable Brett M. Kavanaugh, Associate Justice of the United States Supreme Court
and Circuit Justice for the Seventh Circuit
REPLY IN SUPPORT OF EMERGENCY APPLICATION FOR WRIT OF INJUNCTION
RELIEF REQUESTED BEFORE MAY 31, 2020
Mathew D. Staver, Counsel of Record Horatio G. Mihet Roger K. Gannam Daniel J. Schmid LIBERTY COUNSEL P.O. Box 540774 Orlando, Florida 32854 (407) 875-1776 court@LC.org | hmihet@LC.org rgannam@LC.org | dschmid@LC.org
Attorneys for Applicants

PARTIES AND DISCLOSURE STATEMENT Applicants are Elim Romanian Pentecostal Church (“ERPC”) and Logos
Baptist Ministries (“Logos”), neither of which has any parent corporation or publicly
held shareholder. Respondent is Jay R. Pritzker, in his official capacity as Governor
of the State of Illinois.
TABLE OF CONTENTS PARTIES AND DISCLOSURE STATEMENT.............................................................. i TABLE OF CONTENTS................................................................................................. i TABLE OF AUTHORITIES ......................................................................................... iii ARGUMENT IN REPLY ............................................................................................... 1 INTRODUCTION .......................................................................................................... 1 I. THE GOVERNOR’S SUDDEN CHANGE OF POLICY DOES NOT MOOT
THIS CASE BECAUSE THE GOVERNOR HAS NOT CARRIED THE HEAVY BURDEN OF MAKING ABSOLUTELY CLEAR THAT HE CANNOT REVERT BACK TO THE ARBITRARY AND DISCRIMINATORY POLICIES HE HAS VIGOROUSLY DEFENDED TO THIS COURT AND THE COURTS BELOW..................................................... 2 A. Under the Voluntary Cessation Doctrine the Governor Faces a Heavy
Burden of Making Absolutely Clear That He Cannot Revert Back to His Unconstitutional Policy. .................................................................... 2 B. The Governor Cannot Carry His Heavy Burden Because His Sudden Change in Policy Is Not Permanent. ....................................................... 3 C. The Governor Cannot Carry His Heavy Burden Because He Has Not Changed His Mind About the 10-Person Limit and Even Now Vigorously Defends Its Constitutionality. ............................................... 7 D. The Nature and Timing of the COVID-19 Pandemic and the Governor’s Orders in Response Satisfies the Mootness Exception for Disputes Capable of Repetition Yet Evading Review. ............................ 8
i

II. CHURCHES ARE IRREPARABLY HARMED BY ONGOING AND ESCALATING THREATS OF ENFORCEMENT UNDER THE AUTHORITY OF THE GOVERNOR’S ORDERS............................................ 10
III. THE GOVERNOR’S ANECDOTAL ACCOUNTS OF CHURCH GATHERINGS DO NOT ADVANCE HIS BURDEN TO JUSTIFY THE RESTRICTIONS ON WORSHIP IN HIS ORDERS. ....................................... 13
IV. CHURCHES HAVE NOT FORFEITED THEIR ESTABLISHMENT CLAUSE AND RLUIPA ARGUMENTS. ......................................................... 16
CONCLUSION............................................................................................................. 17
ii

Cases

TABLE OF AUTHORITIES

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) ......................................................... 2,3

Berean Baptist Church v. Cooper, No. 4:20-cv-81-D, 2020 WL 2514313 (E.D.N.C. May 16, 2020)............................................................ 7

City of L.A. v. Lyons, 461 U.S. 95 (1983).................................................................... 3,4

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) ................................... 2

Dombrowski v. Pfister, 380 U.S. 479 (1965) ............................................................... 10

Edenfield v. Fane, 507 U.S. 761 (1993) ....................................................................... 13

Elrod v. Burns, 427 U.S. 347 (1976) ........................................................................... 10

Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007) ............. 9

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) .................................................................................................. 3

Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969 (2016) ............................. 9

Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298 (2012).............................. 8

McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015).................................................. 5

McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005) .................................................................................................. 8

N.H. Right to Life Pol. Action Comm. v. Gardner, 99 F.3d 8 (1st Cir. 1996) ............ 10

Norman-Bloodsaw v. Lawrence Berkely Lab., 135 F.3d 1260 (9th Cir 1998).............. 5

Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985)................................................... 7

Pierce v. Ducey, No. CV-16-01538-PHX-NVW, 2019 WL 4750138 (D. Ariz. Sept. 30, 2019).......................................................... 6,8

Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007)............................................................ 4

Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020)........................................................... 11

iii

Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969)....................................... 10
Southern Pac. Terminal Co. v. ICC, 2199 U.S. 498 (1911) .......................................... 9
Tabernacle Baptist Church, Inc. v. Beshear, No. 3:20-cv-00033-GFVT, 2020 WL 2305307 (E.D. Ky. May 8, 2020) ............................................................ 13
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)............ 3
Turner v. Rogers, 564 U.S. 431 (2011) .......................................................................... 9
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994)................................................ 13
United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018)............................................. 6
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ....................................... 11
Constitutional Provisions
U.S. Const. amend I........................................................................................ 7,10,11,16
Other Authorities
Dan Mihalopoulos, Gov. JB Pritzker Warns Illinois Could Suffer A Second Spike In COVID-19 Cases, WBEZ (Apr. 10, 2020, 6:09 PM EDT).......................... 6
Hebrews ........................................................................................................................ 11
Illinois Department of Public Health, COVID-19 Guidance for Places of Worship and Providers of Religious Services (May 28, 2020)..................... 3,4,5,7,9
Kelly Bauer, Coronavirus In Chicago: Not Staying Home, Wearing Masks Could Lead To More Surges, Pritzker Says, Block Club Chicago (May 19, 2020, 7:28 AM CDT) ................................................................................................. 6
Lea Hamner, MPH, et al., High SARS-CoV-2 Attack Rate Following Exposure at a Choir Practice—Skagit County, Washington, March 2020, 69(19) MMWR 606, 606 (May 15, 2020) ...................................................................... 14,15
Mike Flannery, Pritzker worried about second wave of COVID-19 infections that could be deadlier, Fox 32 Chicago (Apr. 10, 2020) .......................................... 6
Skagit Valley Chorale, Statement re: COVID-19, skagitvalleychorale.org (Mar. 23, 2019)........................................................................................................ 14
iv

Youjin Shin, Bonnie Berkowitz, Min Joo-Kim, How a South Korean church helped fuel the spread of the coronarvirus, The Washington Post (Mar. 25, 2020)........................................................................................................................ 15
v

ARGUMENT IN REPLY Applicants, Elim Romanian Pentecostal Church (“ERPC”) and Logos Baptist Ministries (“Logos”) (collectively, “Churches”), submit this argument in support of their Emergency Application for Writ of Injunction filed May 27, 2020 (their “Application”), and in reply to Governor Pritzker’s Response in Opposition to Emergency Application for Writ of Injunction filed May 28, 2020 (the Governor’s “Response”).
INTRODUCTION Mere hours before his Response was due in this Court, the Governor announced a sudden change in his 10-person limit on religious worship services (Resp. 1, n.1), after vigorously defending his policy in both lower courts, and having announced barely 3 weeks ago that it would be 12 to 18 months before numerical limits on worship services were lifted (App. 6). What changed? The Governor was summoned to the steps of this Court to give an account. But the Governor’s sudden change has no permanency or force of law, and both his public statements and his new policy strongly signal an impending return to his old ways. Absent a pronouncement from this Circuit Justice, or the Court, there can be no reasonable expectation that the Governor will not once again infringe Churches’ constitutional rights. Thus, this case is not moot, and the prayed for writ of injunction should issue on the merits to restrain enforcement of the Governor’s arbitrary and discriminatory Orders restricting religious worship.
1

I. THE GOVERNOR’S SUDDEN CHANGE OF POLICY DOES NOT MOOT THIS CASE BECAUSE THE GOVERNOR HAS NOT CARRIED THE HEAVY BURDEN OF MAKING ABSOLUTELY CLEAR THAT HE CANNOT REVERT BACK TO THE ARBITRARY AND DISCRIMINATORY POLICIES HE HAS VIGOROUSLY DEFENDED TO THIS COURT AND THE COURTS BELOW.
A. Under the Voluntary Cessation Doctrine the Governor Faces a Heavy Burden of Making Absolutely Clear That He Cannot Revert Back to His Unconstitutional Policy.
The Governor’s apathetic argument that this case is moot should be rejected.
(Resp. 1, 14.) His sudden, “voluntary” shift from the 10-person limit on religious
worship enshrined in Order 321 and his Restore Illinois plan, which he has vigorously
defended in the courts below and to this Circuit Justice, is not enough to remove his
conduct from review:
It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power.
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982) (emphasis added).
We have recognized, however, that a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued. Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends. Given this concern, our cases have explained that a defendant claiming that its voluntary compliance moots a case bears the formidable burden of

1

Unless otherwise indicated, capitalized terms in this reply have the same meaning as in

Churches’ Application.

2

showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (emphasis added) (internal quotation marks and citation omitted). B. The Governor Cannot Carry His Heavy Burden Because His Sudden Change in Policy Is Not Permanent. Applying this “formidable burden,” the Court held in Trinity Lutheran Church of Columbia, Inc. v. Comer that a state governor’s “voluntary cessation of a challenged practice does not moot a case unless ‘subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” 137 S. Ct. 2012, 2019 n.1 (2017) (modification in original) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000)). Here, Governor Pritzker “has not carried the ‘heavy burden’ of making ‘absolutely clear’ that [he] could not revert to [his] policy,” id., of imposing unique and discriminatory numerical limits on religious worship services, because his sudden change in policy is neither permanent nor irrevocable. See City of L.A. v. Lyons, 461 U.S. 95, 101 (1983). The new guidance for worship services from the Illinois Department of Health (IDPH) (Resp. 1, n.1, the “Worship Guidance” or “WG”2), issued the day after Churches’ Application, and mere hours before the Governor’s Response was due, does

2

Churches’ citations to the Worship Guidance herein are to the copy published by the IDPH at

COVID-19 Guidance for Places of Worship and Providers of Religious Services (May 28, 2020),

http://www.dph.illinois.gov/sites/default/files/Church%20Guidance.pdf.

3

not satisfy the Governor’s burden to show mootness because “by its terms is not permanent” and it has not “‘irrevocably eradicated the effects of the alleged violation.’” Lyons, 461 U.S. at 101. Neither the plain language nor the regulatory context of the Worship Guidance demonstrates any authority to bind the Governor or durability against his fiat. See id.; Porter v. Bowen, 496 F.3d 1009, 1017 (9th Cir. 2007).
The Worship Guidance does not purport to supersede or abrogate the Governor’s Order 32, which enshrines and gives the force of law to the Governor’s 10person limit on religious worship services. (App. Ex. D § 2.5.f.). Thus, to the extent the Worship Guidance is permissive towards in-person worship services of more than 10, it is inconsistent with Order 32, for as long as Order 32 is in effect.3 Moreover, the Worship Guidance contradicts the publication of the Governor’s 5-phase, long-range Restore Illinois plan (App. Ex. E) and the Governor’s public statements about it. By the Governor’s own admission “Illinois will enter Phase 3 in two days” (Resp. 10), but as published, Phase 3 continues a 10-person limit on gatherings (App. Ex. E). And the Governor himself is on record—this month—stating that it will be 12 to 18 months before churches reopen under the plan. (App. 6.)

3

Even if Order 32 expires on May 29 by its own terms as contended by the Governor (Resp. 1,

5), there is nothing to prevent the Governor from extending it or replacing it with a similar order.

Indeed, Order 32 itself is a replacement of the Governor’s first stay-at-home order issued March 20,

2020 and extended by executive order on April 1, 2020. (App. 3 n.3; Resp. 7.) And on April 30, 2020,

the same day the Governor issued Order 32, he also issued Executive Order 2020-33 which, inter alia,

extended 27 prior COVID-19 executive orders. (7th Cir. Doc. 6-5 at 139 of 363.) Thus, the Governor’s

extending or reinstating his 10-person worship limit is not merely “speculative.” (Resp. 5.)

4

If, as the Governor claims, the Worship Guidance is consistent with Restore Illinois (Resp. 10), it is only because Restore Illinois on its face reserves absolute discretion to the Governor to implement all or none of it, or to change it, according to his schedule and whim. (App. Ex. E at 3 (“This is an initial framework that will likely be updated . . . .’); at 4 (“[J]ust as health metrics will tell us it is safe to move forward, health metrics may also tell us to return to a prior phase . . . .”); at 4 (“All public health criteria included in this document are subject to change. . . . [T]his plan can and will be updated . . . .”) (emphasis added).) Thus, tying the Worship Guidance to Restore Illinois only proves that it has no permanence, and that it cannot advance the Governor’s burden to establish Churches’ claims are moot.
Moreover, the Governor has “neither asserted nor demonstrated that [he] will never resume the complained of conduct.” Norman-Bloodsaw v. Lawrence Berkely Lab., 135 F.3d 1260, 1274 (9th Cir 1998); see also McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015) (“[W]hile a statutory change ‘is usually enough to render a case moot,’ an executive action that is not governed by any clear or codified procedures cannot moot a claim.” (emphasis added)). To be sure, given that the Governor ostensibly plans to implement or change, or even reverse, Restore Illinois according to “health metrics” and “health criteria” which are “subject to change” (App. Ex. E at 4), the Governor has already laid the groundwork for imposing more, not fewer restrictions going forward. For example, in his Response, the Governor claims “the threat of the virus has not passed, and there remains no vaccine or treatment available for COVID-19.” (Resp. 6.) Furthermore, the Governor has openly stated he
5

is “deeply concerned” of a COVID-19 surge in the summer or fall,4 and that, “If you really begin to open things up, you’re going to have a second wave . . . . We have to be able to address that.”5 These same concerns of recurrence were voiced by Dr. Allison Arwady, Commissioner of the Chicago Department of Public Health, who is the same official that has threatened Applicant ERPC with sanctions up to and including closure or “Summary Abatement.” (App. 12–13, Ex. F.)6 Thus, not only has the Governor not taken the position that he will not reinstate his 10-person worship limitation, but there is evidence he intends to reinstate restrictions within months under certain circumstances. He cannot demonstrate mootness in any event. Cf. United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 n.* (2018) (holding, where government intends to reinstate old policy, “the rescission of the policy does not render this case moot”); Pierce v. Ducey, No. CV-16-01538-PHX-NVW, 2019 WL 4750138, at *1 (D. Ariz. Sept. 30, 2019) (“A voluntary cessation joined with a threat to do it again is the paradigm of unsuccessful blunting of power to adjudicate . . . .”).

4

Kelly Bauer, Coronavirus In Chicago: Not Staying Home, Wearing Masks Could Lead To More

Surges, Pritzker Says, Block Club Chicago (May 19, 2020, 7:28 AM CDT),

https://blockclubchicago.org/2020/05/19/coronavirus-in-chicago-not-staying-home-wearing-masks-

could-lead-to-more-surges-pritzker-says/.

5

Dan Mihalopoulos, Gov. JB Pritzker Warns Illinois Could Suffer A Second Spike In COVID-19

Cases, WBEZ (Apr. 10, 2020, 6:09 PM EDT), https://www.wbez.org/stories/gov-jb-pritzker-warns-

illinois-could-suffer-a-second-spike-in-covid-19-cases/087c24d2-eac5-4df8-aa3e-e997e22140eb; see also

Mike Flannery, Pritzker worried about second wave of COVID-19 infections that could be deadlier, Fox

32 Chicago (Apr. 10, 2020), https://www.fox32chicago.com/news/pritzker-worried-about-second-wave-

of-covid-19-infections-that-could-be-deadlier.

6

Bauer, supra, note 4.

6

Even the Worship Guidance itself is passively-aggressively hostile to in-person worship services of more than 10 people, revealing the longevity of its permissiveness is precarious at best. (WG at 1 (suggesting “deep respect for human life and health, which prioritizes protecting our neighbors and the vulnerable” is best expressed “through remote services and drive-in services”); at 3 (“Where the 10-person limit cannot be followed in places of worship, these guidelines are recommended.”7 (emphasis added)).) Thus, there is no doubt Churches are one whim away from being once again subjected to the restrictions they challenge in this case and which the Governor obviously still favors. The Worship Guidance can be revoked just as quickly as it came into being. To be sure, it is not a stretch to say the Governor’s reversion to those restrictions is likely, which thwarts any claim of mootness.8
C. The Governor Cannot Carry His Heavy Burden Because He Has Not Changed His Mind About the 10-Person Limit and Even Now Vigorously Defends Its Constitutionality.
A case is not moot where, as here, the Governor “did not voluntarily cease the challenged activity because he felt [it] was improper,” and “has at all times continued to argue vigorously that his actions were lawful.” Olagues v. Russoniello, 770 F.2d

7

Cf. Berean Baptist Church v. Cooper, No. 4:20-cv-81-D, 2020 WL 2514313 (E.D.N.C. May 16,

2020) (“[W]ho decides whether a religious organization or group of worshipers correctly determined

that their religious beliefs dictated the need to have more than 10 people inside to worship? Under

[the orders], the answer is a sheriff or another local law enforcement official. This court has grave

concerns about how that answer comports with the Free Exercise Clause.”)

8

The Governor’s fixation on face coverings for Churches’ congregants reveals even now that he

wants to impose stricter rules on worshippers than others. (Resp. 11.) As shown in Churches’

Application, neither the Governor’s Orders nor the CDC guidances require face coverings when social

distancing can be maintained. (App. 4–5, n.5, 10 n.6.) The photographs in Churches’ Application show

ERPC accomplished this well, obviating the need for masks for the distanced congregants. (App. 10–

11.) Still, the Governor unfairly faults the church, and only the church. (Resp. 11.)

7

791, 795 (9th Cir. 1985); Pierce, 2019 WL 4750138, at *5 (“[W]hen the government ceases a challenged policy without renouncing it, the voluntary cessation is less likely to moot the case.”). The vast majority of the 47 pages of the Governor’s Response is devoted to vigorous defense of his 10-person limit for worship services, and “[t]here is nothing in the parties' submissions or the record to demonstrate the Governor changed his mind about the merits of Plaintiff[s’] claim.” Pierce, 2019 WL 4750138, at *6. “The Governor did not experience a change of heart that may counsel against a mootness finding.” Id.
Moreover, the timing of the Governor’s policy change—on the eve or a ruling by this Circuit Justice or the Court—is suspect, and betrays an intent to go back to his old ways. See id. at *5–6 (“The Court is not fooled.”); cf. Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012) (“Such postcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye.”); McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 871 (2005) (rejecting counties’ mere “litigating position” as evidence of actual intent of county policies). Furthermore, “[g]iven the importance of the issues at bar . . . the public interest in having the legality of the Governor’s behavior settled weighs against a mootness ruling.” Pierce, 2019 WL 4750138, at *7.
D. The Nature and Timing of the COVID-19 Pandemic and the Governor’s Orders in Response Satisfies the Mootness Exception for Disputes Capable of Repetition Yet Evading Review.
Not only can the Governor not carry his burden under the voluntary cessation doctrine (see supra pts. I.A–C), but this case also “fit[s] comfortably within the
8

established exception to mootness for disputes capable of repetition, yet evading review.” Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462 (2007). “The exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’” Id. Both circumstances are present.
Given the rapidly changing COVID-19 landscape there is no question that the duration of the Governor’s 10-person worship limit was always going to be “too short to be fully litigated prior to cessation or expiration.” Indeed, according to the Governor Order 32 is expiring and “religious gatherings will no longer be subject to mandatory restrictions.” (Resp. 1; see also Resp. 8 (“[Order 32] reflected the evolving circumstances of the “COVID-19 pandemic”); 31 (“the restriction is temporary”).) Even under the Governor’s recent forecast of reopening churches in 12 to 18 months under his Restore Illinois plan, the duration of his restrictions will be too short to be fully litigated. See Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (two years is too short); Turner v. Rogers, 564 U.S. 431, 440 (2011) (12 months is too short); Southern Pac. Terminal Co. v. ICC, 2199 U.S. 498, 515 (1911) (18months is too short).
Given the inherently temporary nature of the Worship Guidance, the Governor’s dire predictions for the summer and fall, and the Governor’s expressed preference for a 10-person limit on worship services (see supra pts. I.B–C), there is also a reasonable expectation that Churches will be subject to the same restrictions
9

again. Thus, this case satisfies the mootness exception for disputes capable of repetition yet evading review. II. CHURCHES ARE IRREPARABLY HARMED BY ONGOING AND
ESCALATING THREATS OF ENFORCEMENT UNDER THE AUTHORITY OF THE GOVERNOR’S ORDERS. The Governor’s disingenuous argument that Churches have not been irreparably harmed by the Governor’s Orders should be rejected. (Resp. 45–46.) First, as shown in Churches’ Application (App. 39–40), “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). There is no dispute that Churches have not only endured the threat of enforcement of the Governor’s Orders while exercising in-person worship, but also have been subjected to actual enforcement. (App. 12–13.) Just the threat, however, is enough. “‘The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.’” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969) (emphasis added); see also Dombrowski v. Pfister, 380 U.S. 479, 494 (1965) (“So long as the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one.”); N.H. Right to Life Pol. Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996) (“[I]t is not necessary that a person expose herself to arrest or prosecution under a statute in order to challenge that statute in a federal court” because the “threat of present or future prosecution itself works an injury that is sufficient to confer standing, even if there is no history of past enforcement.”).
10

Nor does the Governor’s allowing Churches to worship the way he thinks is
best avoid Churches’ irreparable injury from being deprived of the right to worship
according to their consciences. (Resp. 45–46.) “If there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can prescribe
what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein.” W. Va.
State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added). As the
Sixth Circuit taught in Roberts v. Neace,
Who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when “two or three gather in my Name,” Matthew 18:20, or what it means when “not forsaking the assembling of ourselves together,” Hebrews 10:25.
[T]he Free Exercise Clause does not protect sympathetic religious practices alone. And that’s exactly what the federal courts are not to judge— how individuals comply with their own faith as they see it.
958 F.3d 409, 415–16 (6th Cir. 2020) (emphasis added )(citation omitted). (App. 16–
17.) It is not for the Governor to say what kind of worship should be acceptable to
Churches.
Finally, Churches’ establishment of irreparable harm is not diminished in the
least by the timing of their Application. (Resp. 2–3.) Churches applied to this Circuit
Justice for relief on May 27, just 2 business days after the Chicago Public Health
Commissioner escalated her enforcement threat against Applicant ERPC to
11

“Summary Abatement,” and just 1 business day after the latest round of police citations were issued to Applicant Logos. (App. 12–13.) Prior to their Application, Churches diligently sought emergency relief at every level. (App. 8–13.) Churches progressed from commencing this action in the district court on May 7 to the Seventh Circuit’s denial of an injunction pending appeal on May 16—just 9 days. At that point, Churches had obtained expedited merits briefing and argument in the Seventh Circuit and pressed their claims—including irreparable harm—in their merits brief. (App. 12.) The next day, however, the Chicago Public Health Commissioner declared Applicant ERPC a “public health nuisance” and threatened enforcement up to and including “Summary Abatement,” and the day after that police issued Logos new citations. (App. 12–13.) Under the substantially changed circumstances, when it became clear that injunctive relief was needed to forestall further enforcement and irreparable harm prior to the Seventh Circuit’s decision following its June 12 oral argument, Churches quickly applied to this Circuit Justice for emergency relief. And regardless of what a different Chicago official may have said to the press (Resp. 3), the Public Health Commissioner has not withdrawn or rescinded either her May 15 warnings or her May 23 “Summary Abatement” enforcement threats, and the police have not canceled their citations. Instead, as noted above, the Public Health Commissioner has voiced concerns that the situation could worsen, and that new responsive actions would have to be implemented. Churches have been and continue to be irreparably harmed, and the writ of injunction should issue.
12

Conversely, issuing the writ of injunction can bring no harm to the Governor if, as he claims, he has no intention of reinstituting his 10-person limit on worship services. And, “[t]here can be no harm to [the government] when it is prevented from enforcing an unconstitutional statute . . . .” Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004). Thus, any balancing of potential harms which may result from issuance of the injunction tips decidedly in favor of Churches. III. THE GOVERNOR’S ANECDOTAL ACCOUNTS OF CHURCH
GATHERINGS DO NOT ADVANCE HIS BURDEN TO JUSTIFY THE RESTRICTIONS ON WORSHIP IN HIS ORDERS. As shown in Churches’ Application, it is the Governor’s burden to prove the constitutionality of his 10-person restriction on worship services under strict scrutiny. (App. 27–29.) The Governor’s factually deficient, anecdotal accounts of disparate church gatherings do not satisfy the constitutional standard. See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (government “must demonstrate that the recited harms are real, not merely conjectural”); Edenfield v. Fane, 507 U.S. 761, 770 (1993) (alleged harm cannot be “mere speculation or conjecture”); see also Tabernacle Baptist Church, Inc. v. Beshear, No. 3:20-cv-00033GFVT, 2020 WL 2305307, (E.D. Ky. May 8, 2020) (“There is ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking.” (emphasis added)). Taking the accounts in turn, neither the Jackson County nor the California examples (Resp. 21, nn.21, 22) provide any facts about hygiene or distancing measures (if any) taken by the subject churches. The German example cites to a
13

report of other reports, apparently relying on one anecdotal account that government distancing requirements were followed. (Resp. 21–22, n.23.) But no information about the church building capacity and occupancy or other precautions is provided. Least helpful, however, are the accounts cited in support of the Governor’s blanket statement that “outbreaks of the virus have been traced back to religious services around the world.” (Resp. 22, n.24.)
The referenced church choir practice near Seattle is inapposite. (Resp. 22 n.24.) The choir met on March 17, 2020—ancient history on the COVID-19 timeline—for 2 1/2 hours of singing practice, which included “members sitting close to one another, sharing snacks, and stacking chairs at the end of practice.” Lea Hamner, MPH, et al., High SARS-CoV-2 Attack Rate Following Exposure at a Choir Practice—Skagit County, Washington, March 2020, 69(19) MMWR 606, 606 (May 15, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6919e6-H.pdf. Indeed, [m]embers had an intense and prolonged exposure, singing while sitting 6–10 inches from one another.” Id. at 609 (emphasis added). Moreover, one attendee “was known to be symptomatic.” Id. at 606 (emphasis added). At the time of the practice, there were no reported cases of COVID-19 in the community, “[t]here were no closures of schools, restaurants, churches, bowling alleys, banks, libraries, theaters, or any other businesses,” and “[t]he advice from the State of Washington was to limit gatherings to 250 people.” Skagit Valley Chorale, Statement re: COVID19, skagitvalleychorale.org (Mar. 23, 2019), https://9b3c1cdb-8ac7-42d9-bccf4c2d13847f41.filesusr.com/ugd/3e7440_635a114fead240e1a02bc2c872a852de.pdf.
14

Thus, the choir practice was nothing like the services desired and conducted by Churches. (App. 7–13.) And, with respect to singing, the CDC concluded only that “[t]he act of singing, itself, might have contributed to transmission.” Hamner, at 606 (emphasis added).
The South Korean example is even less apposite. (Resp. 22 n.24.) A “cluster” of COVID-19 infections originated with a congregant of a Daegu, South Korea church around February 18, 2020, when there were only 39 known cases in the country. Youjin Shin, Bonnie Berkowitz, Min Joo-Kim, How a South Korean church helped fuel the spread of the coronarvirus, The Washington Post (Mar. 25, 2020), https://www.washingtonpost.com/graphics/2020/world/coronavirus-south-koreachurch/. The South Korean government did not roll out testing and closures until after the church cluster emerged. Id. Thus, the circumstances were nothing like the present reality for Churches, and do not justify Governor Pritzker’s arbitrary 10person limit.
Beyond the inapposite anecdotes, the Governor’s concern about spreading contagion by “speaking” and “singing” at properly distanced, responsibly held church services is puzzling. (Resp. 21–22.) The Governor has not banned speaking, whistling, or singing at Walmart, Home Depot, law firm meetings, or at any of the numerous other permitted “Essential” gatherings. How is a church attendee, speaking six feet or more from another, more likely to be infected than a Walmart customer speaking with the cashier or other shoppers? How is a meeting of 20 properly-distanced attorneys speaking together less dangerous than a worship service attended by 20
15

properly-distanced people, who are listening to a sermon delivered by the Pastor who is still farther away? The Governor does not and cannot explain. IV. CHURCHES HAVE NOT FORFEITED THEIR ESTABLISHMENT
CLAUSE AND RLUIPA ARGUMENTS. Contrary to the Governor’s Response, Churches have not forfeited their Establishment Clause and RLUIPA arguments.9 (Resp. 36, 39.) Churches’ Application is not an appeal from the Seventh Circuit’s denial of an injunction pending appeal. Rather, it is an application for a writ of injunction in aid of this Court’s jurisdiction. See 28 U.S.C. § 1651(a). Churches fully briefed their Establishment Clause and RLUIPA claims in their merits brief to the Seventh Circuit (7th Cir. Doc. 24 at 49–51, 54–57.) This Circuit Justice, or the Court, may issue a writ of injunction in aid of the Court’s jurisdiction on the merits.

9

Nor have Churches forfeited arguments as to the applicability of Jacobson v. Massachusetts,

197 U.S. 11 (1905), to their free exercise claims, or which activities are actually comparable to religious

worship for purposes of showing the Governor’s 10-person limit is neither neutral nor generally

applicable. (Resp. 22, 29.) Churches made these arguments in their Application specifically in response

to the Seventh Circuit’s order denying Churches’ motion for injunction pending appeal.

16

 
 (ORDER LIST: 590 U.S.)

FRIDAY, MAY 29, 2020

19A1046

ORDER IN PENDING CASE ELIM ROMANIAN CHURCH, ET AL. V. PRITZKER, GOV. OF IL

The application for injunctive relief presented to Justice Kavanaugh and by him referred to the Court is denied.
The Illinois Department of Public Health issued new guidance on May 28. The denial is without prejudice to Applicants filing a new motion for appropriate relief if circumstances warrant.

 
 Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1811 ELIM ROMANIAN PENTECOSTAL CHURCH and LOGOS BAPTIST MINISTRIES,
Plaintiffs-Appellants,
v.
JAY ROBERT PRITZKER, Governor of Illinois, Defendant-Appellee.
____________________
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 20 C 2782 — Robert W. Gettleman, Judge.
____________________
ARGUED JUNE 12, 2020 — DECIDED JUNE 16, 2020 ____________________
Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.
EASTERBROOK, Circuit Judge. Two churches contend, in this suit under 42 U.S.C. §1983, that an executive order limiting the size of public assemblies (including religious services) to ten persons violates their rights under the Free Exercise Clause of the First Amendment, applied to the states

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

2

No. 20-1811

by the Fourteenth Amendment. The Governor of Illinois issued this order to reduce transmission of the coronavirus SARS-CoV-2, which causes the disease COVID-19. The disease is readily transmissible and has caused a global pandemic. As of June 16, 2020, 133,639 persons in Illinois have tested positive for COVID-19, and 6,398 of these have died. Epidemiologists believe that those numbers are undercounts—persons with no or mild symptoms may not be tested, some people die of the disease without being tested, and some deaths aaributed to other causes may have been hastened or facilitated by the eﬀect of COVID-19 weakening the immune system or particular organs.
Experts think that, without controls, each infected person will infect two to three others, causing an exponential growth in the number of cases. Because many of those cases require intensive medical care, infections could overwhelm the medical system. The World Health Organization, the Centers for Disease Control, and many epidemiologists recommend limiting the maximum size of gatherings (the Governor’s cap of ten comes from a CDC recommendation), adopting a policy of social distancing (everyone staying at least six feet away from anyone not living in the same household—ten feet if the other person is singing or talking loudly), isolating people who have the disease, wearing face coverings so that people who have the disease but don’t know it are less likely to infect others, and tracing the contacts of those who test positive. Reducing the number of people at gatherings protects those persons, and perhaps more important it protects others not at the gathering from disease transmiaed by persons who contract COVID-19 by aaending a gathering that includes infected persons.

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

No. 20-1811

3

Plaintiﬀs contend, however, that a limit of ten persons eﬀectively forecloses their in-person religious services, even though they are free to hold multiple ten-person services every week, and that the Governor’s proposed alternatives— services over the Internet or in parking lots while worshipers remain in cars—are inadequate for them.
Here is the relevant text of the order in question:
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 permiaed 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.
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.
Executive Order 2020-32 §2(3) (Apr. 30, 2020) (boldface in original). Section 2(5)(vi) adds that people are free to leave their homes
[t]o 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.

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

4

No. 20-1811

One other section of this order bears on religious activities. Section 2(12)(c) includes in the list of “essential” functions exempt from the ten-person cap:
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[.]
Religious services, too, are deemed “essential,” see §2(5)(vi), which is why they can proceed while concerts are forbidden, but they have not been exempted from the size limit.
The churches contend that these rules burden the free exercise of their faith, which requires adherents to assemble in person, and discriminates against religious services compared with the many economic and charitable activities that the Governor has exempted from the ten-person limit. The churches are particularly put out that their members may assemble to feed the poor but not to celebrate their faith. A district court, however, concluded that Executive Order 2020-32 is neutral with respect to religion and supported by the compelling need to safeguard the public health during a pandemic. The court denied the motion for a preliminary injunction. 2020 U.S. Dist. LEXIS 84348 (N.D. Ill. May 13, 2020). Plaintiﬀs appealed under 28 U.S.C. §1292(a)(1).
We denied the churches’ motion for an injunction pending appeal, with this explanation:
Based on this court’s preliminary review of this appeal for purposes of this motion, we ﬁnd that plaintiﬀs have not shown a suﬃcient likelihood of success on the merits to warrant the extraordinary relief of an injunction pending appeal. The Governor’s Executive Order 2020-32 responds to an extraordinary pub-

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

No. 20-1811

5

lic health emergency. See generally Jacobson v. Massachuse<s, 197 U.S. 11 (1905). The Executive Order does not discriminate against religious activities, nor does it show hostility toward religion. It appears instead to impose neutral and generally applicable rules, as in Employment Division v. Smith, 494 U.S. 872 (1990). The Executive Order’s temporary numerical restrictions on public gatherings apply not only to worship services but also to the most comparable types of secular gatherings, such as concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods, especially where speech and singing feature prominently and raise risks of transmiaing the COVID-19 virus. Worship services do not seem comparable to secular activities permiaed under the Executive Order, such as shopping, in which people do not congregate or remain for extended periods. Further, plaintiﬀsappellants may not obtain injunctive relief against the Governor in federal court on the basis of the Illinois Religious Freedom Restoration Act. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984).
No. 20-1811 (7th Cir. May 16, 2020). We expedited brieﬁng and oral argument.
Before the case could be argued, the Governor replaced Executive Order 2020-32 with Executive Order 2020-38 (May 29, 2020), which permits the resumption of all religious services. Section 4(a) of Order 2020-38 contains this exemption:
This Executive Order does not limit the free exercise of religion. To protect the health and safety of faith leaders, staﬀ, congregants and visitors, religious organizations and houses of worship are encouraged to consult and follow the recommended practices and guidelines from the Illinois Department of Public Health. As set forth in the IDPH guidelines, the safest practices for religious organizations at this time are to provide services online, in a drive-in format, or outdoors (and consistent with social distancing requirements and guidance regarding wearing face coverings), and to limit indoor services to 10 people. Religious organizations are encouraged to take steps to ensure social

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

6

No. 20-1811

distancing, the use of face coverings, and implementation of other public health measures.
What used to be a cap of ten persons became a recommendation. Because this section is an “exemption,” none of Executive Order 2020-38’s rules applies to religious exercise. The guidelines, issued on May 28 and available at haps://www.dph.illinois.gov/covid19/communityguidance/places-worship-guidance, contain eight singlespaced pages of recommendations but do not impose any legal obligation.
Illinois contends that Executive Order 2020-38 makes this suit moot, because it gives the churches all of the relief they wanted from a judge. Plaintiﬀs observe, however, that the Governor could restore the approach of Executive Order 2020-32 as easily as he replaced it—and that the “Restore Illinois Plan” (May 5, 2020) reserves the option of doing just this if conditions deteriorate. Executive Order 2020-38 moved Illinois to Phase 3 of this Plan, which cautions that some things “could cause us to move back”:
IDPH will closely monitor data and receive on-the-ground feedback from local health departments and regional healthcare councils and will recommend moving back to the previous phase based on the following factors:
• Sustained rise in positivity rate [of COVID-19 test results] • Sustained increase in hospital admissions for COVID-19 like
illness • Reduction in hospital capacity threatening surge capabilities • Significant outbreak in the region that threatens the health of
the region
Voluntary cessation of the contested conduct makes litigation moot only if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to re-

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

No. 20-1811

7

cur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000). Otherwise the defendant could resume the challenged conduct as soon as the suit was dismissed. The list of criteria for moving back to Phase 2 (that is, replacing the current rules with older ones) shows that it is not “absolutely clear” that the terms of Executive Order 2020-32 will never be restored. It follows that the dispute is not moot and that we must address the merits of plaintiﬀs’ challenge to Executive Order 2020-32 even though it is no longer in eﬀect.
The churches contend that any limit on religious gatherings is permissible only if supported by a compelling interest, which they say is lacking. Yet Employment Division v. Smith, 494 U.S. 872 (1990), holds that the Free Exercise Clause does not require a state to accommodate religious functions or exempt them from generally applicable laws. The Justices recently granted certiorari in a case presenting the question whether Smith should be overruled, Fulton v. Philadelphia, 140 S. Ct. 1104 (2020), but Fulton will not be argued until next fall. Unless the Justices overrule or modify Smith, we must implement its approach.
Congress established rules more favorable to religion through the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb–4, but Boerne v. Flores, 521 U.S. 507 (1997), holds that those rules cannot be applied to the states. Illinois has itself created rules more favorable to religion through the Illinois Religious Freedom Restoration Act, 775 ILCS 35/1 to 35/30, and plaintiﬀs want to take advantage of that statute. Given the Eleventh Amendment and principles of sovereign immunity, however, a federal court cannot issue relief against a state under state law. See, e.g., Pennhurst

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

8

No. 20-1811

State School & Hospital v. Halderman, 465 U.S. 89 (1984). Plaintiﬀs maintain that Pennhurst is irrelevant because Illinois has consented to the enforcement of the Illinois Religious Freedom Restoration Act, thus waiving its sovereign immunity. Consent to be sued in state court does not imply consent to be sued in federal court, however; that takes a “clear declaration”. See, e.g., College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 676 (1999) (citing other cases). Section 35/20 provides:
If a person’s exercise of religion has been burdened in violation of this Act, that person may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief against a government. A party who prevails in an action to enforce this Act against a government is entitled to recover aaorney’s fees and costs incurred in maintaining the claim or defense.
See also §35/10(b)(2). This language authorizes judicial relief but does not clearly authorize suit against the state in federal court. As a result, neither the federal nor the state Religious Freedom Restoration Act can be applied in this case.
The vital question therefore is whether Executive Order 2020-32 discriminates against religion. Funerals, weddings, and similar activities are subject to the same size limit that applies to worship services. Illinois did not set out to disadvantage religious services compared with secular events. Nor does the order discriminate among faiths. Cf. Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).
Plaintiﬀs maintain, however, that the ten-person cap disfavors religious services compared with, say, grocery shopping (more than ten people at a time may be in a store) or warehouses (where a substantial staﬀ may congregate to prepare and deliver the goods that retail shops sell). If those

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

No. 20-1811

9

businesses, and other essential functions such as feeding and housing the poor under §2(12)(c), may place ten unrelated persons in close contact, it amounts to disparate treatment that a religious service cannot do so as well.
For its part, Illinois reminds us how Executive Order 2020-32 §2(3) itself classiﬁes religious worship: with other indoor public gatherings of unrelated persons. At least worship services can proceed (with a size limit), while concerts, movies, and similar events are forbidden.
So what is the right comparison group: grocery shopping, warehouses, and soup kitchens, as plaintiﬀs contend, or concerts and lectures, as Illinois maintains? Judges of other appellate courts have supported both comparisons. Plaintiﬀs point us to two opinions of the Sixth Circuit plus two opinions dissenting from orders denying injunctions pending appeal. See Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020); South Bay United Pentecostal Church v. Newsom, 2020 U.S. App. LEXIS 16464 (9th Cir. May 22, 2020) (Collins, J., dissenting); South Bay United Pentecostal Church v. Newsom, No. 19A1044 (U.S. May 29, 2020) (Kavanaugh, J., joined by Thomas & Gorsuch, JJ., dissenting). Illinois relies on the majorities in South Bay United Pentecostal Church: the Ninth Circuit’s panel did not provide much analysis when denying the motion for an injunction, nor did a majority of the Supreme Court, but Chief Justice Roberts ﬁled a concurring opinion with these observations:
Although California’s guidelines place restrictions on places of worship, … [s]imilar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

10

No. 20-1811

periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
We line up with Chief Justice Roberts.
It would be foolish to pretend that worship services are exactly like any of the possible comparisons, but they seem most like other congregate functions that occur in auditoriums, such as concerts and movies. Any of these indoor activities puts members of multiple families close to one another for extended periods, while invisible droplets containing the virus may linger in the air. Functions that include speaking and singing by the audience increase the chance that persons with COVID-19 may transmit the virus through the droplets that speech or song inevitably produce. As Chief Justice Roberts observed, concerts and church services diﬀer from grocery stores and pharmacies, “in which people neither congregate in large groups nor remain in close proximity for extended periods.”
The churches reply that people do remain together for extended periods in warehouses, and potentially in oﬃce seaings (though most oﬃces contain spaces that provide social distancing). It is not clear to us that warehouse workers engage in the sort of speech or singing that elevates the risk of transmiaing the virus, or that they remain close to one another for extended periods, but some workplaces present both risks. Meatpacking plants and nursing homes come to mind, and they have been centers of COVID-19 outbreaks. But it is hard to see how food production, care for the elderly, or the distribution of vital goods through warehouses could be halted.

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

No. 20-1811

11

Reducing the rate of transmission would not be much use if people starved or could not get medicine. That’s also why soup kitchens and housing for the homeless have been treated as essential. Those activities must be carried on in person, while concerts can be replaced by recorded music, movie-going by streaming video, and large in-person worship services by smaller gatherings, radio and TV worship services, drive-in worship services, and the Internet. Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways.
Perhaps a state could diﬀerentiate between the maximum gathering permiaed in a small church and a cathedral with seats for 3,000, but we do not evaluate orders issued in response to public-health emergencies by the standard that might be appropriate for years-long notice-and-comment rulemaking. See Jacobson v. Massachuse<s, 197 U.S. 11 (1905), which sustains a public-health order against a constitutional challenge. Perhaps with more time—and more data from contact tracing—Illinois could ﬁgure out just how dangerous religious services are compared with warehouses and similar activities, but no one contends that such data were available when Executive Order 2020-32 was promulgated (or, for that maaer, now).
So we do not deny that warehouse workers and people who assist the poor or elderly may be at much the same risk as people who gather for large, in-person religious worship. Still, movies and concerts seem a beaer comparison group, and by that standard the discrimination has been in favor of religion. While all theaters and concert halls in Illinois have been closed since mid-March, sanctuaries and other houses of worship were open, though to smaller gatherings. And

Case: 20-1811 Document: 72

Filed: 06/16/2020 Pages: 12

12

No. 20-1811

under Executive Order 2020-38 all arrangements for worship are permiaed while schools, theaters, and auditoriums remain closed. Illinois has not discriminated against religion and so has not violated the First Amendment, as Smith understands the constitutional requirements.
Plaintiﬀs present some additional arguments, which have been considered but need not be discussed separately.
AFFIRMED