In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 20-1757 

STEPHEN CASSELL and THE BELOVED CHURCH, 

Plaintiffs-Appellants, 

v.

DAVID SNYDERS, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Western Division. 

No. 3:20-cv-50153 — John Z. Lee, Judge. 

____________________ 

ARGUED NOVEMBER 12, 2020 — DECIDED MARCH 8, 2021 

____________________ 

Before WOOD, HAMILTON, and ST. EVE, Circuit Judges. 

HAMILTON, Circuit Judge. Plaintiffs appeal the May 3, 2020 

denial of a preliminary injunction against a now-expired tenperson limit on religious and other gatherings that Illinois imposed to curtail the spread of the coronavirus. The plaintiffs, 

a Christian church and its pastor, hold weekly in-person worship services attended by approximately eighty people. Pastor 

Stephen Cassell suspended these services after he received on 

March 31, 2020 a “Cease and Desist Notice” from the county 
2 No. 20-1757 

health department that threatened penalties under Illinois Executive Order 2020-10, issued March 20, 2020, if the church 

continued to host in-person gatherings of ten or more people. 

Pastor Cassell and The Beloved Church filed this lawsuit on 

April 30, 2020. They sought a preliminary injunction to stop

Governor Pritzker and Stephenson County officials (Sheriff 

David Snyders and Health Administrator Craig Beintema) 

and Lena Police Chief Steve Schaible from enforcing the tenperson limit against the church.

The plaintiffs contend that the ten-person limit on religious gatherings violated their right to exercise their religion 

under both the First Amendment and the Illinois Religious 

Freedom Restoration Act. They also allege that the governor’s 

executive order violated their due process rights under the 

Fourteenth Amendment and exceeded the governor’s powers 

under the Illinois Emergency Management Agency Act and 

the Illinois Department of Public Health Act.

Executive Order 10 prohibited public gatherings of more 

than ten people, with limited exceptions for certain essential 

activities, but not religious gatherings. See Ill. Exec. Order 

2020-10 §§ 1.3, 1.5, 1.12 (Mar. 20, 2020). Since that order was 

issued, the exponential spread of coronavirus has caused a 

global pandemic that rages on. When Pastor Cassell received 

the notice on March 31, 2020, Illinois was reporting a sevenday average of 637 new coronavirus cases per day. Illinois 

Coronavirus Map and Case Count, N.Y. Times (Mar. 31, 2020), 

https://www.nytimes.com/interactive/2020/us/illinois-coronavirus-cases.html. As we write this opinion, Illinois is now 

reporting thousands of new cases each day. Id. (last visited 

Mar. 2, 2021). The virus has killed more than 22,000 people in 

Illinois alone. Id. And across the United States, over 28 million 
No. 20-1757 3

cases and 514,000 deaths have been confirmed. Coronavirus in 

the U.S.: Latest Map and Case Count, N.Y. Times, 

https://www.nytimes.com/interactive/2020/us/coronavirusus-cases.html?action=click&module=Top%20Stories& pgtype

= Homepage (last visited Mar. 2, 2021). The pandemic is expected to continue until vaccines reach a substantial majority 

of the population.

Much has changed since the church filed this case on 

April 30, 2020. By the time the district court heard this case, 

Executive Order 10 had been replaced by Executive Order 

2020-32, which still contained the ten-person limit on religious gatherings. But on May 29, months before plaintiffs 

filed their appellate brief, the governor issued Executive Order 2020-38, which encouraged a ten-person limit on religious 

gatherings but removed the mandate to that effect. See Ill. 

Exec. Order 2020-38, ¶ 4(a). Since then, the governor has continued to adjust regulations to manage risk with a series of 

executive orders that have all expressly exempted religious 

gatherings from mandatory restrictions. See Ill. Exec. Order 

2020-43 (June 26, 2020); Ill. Exec. Order 2020-55 (Sept. 18, 

2020); Ill. Exec. Order 2020-73 (Nov. 18, 2020); Ill. Exec. Order 

2021-03 (Jan. 19, 2021). The plaintiffs’ complaint challenges 

the ten-person limit as it stood in April, when it applied to 

religious gatherings. That’s what the district court assessed 

when it denied a preliminary injunction on May 3, 2020. 

We affirm that denial. Intervening authority from the Supreme Court offers plaintiffs a greater prospect for success on 

the merits of their First Amendment claim than either the district court or we had expected. See Roman Catholic Diocese of 

Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). Yet recent Supreme 

Court authority has also indicated that equitable
4 No. 20-1757 

considerations weigh against granting a preliminary injunction at this time, when the prospect of irreparable injury to the 

plaintiffs is very low. See Danville Christian Academy, Inc. v. 

Beshear, 141 S. Ct. 527 (Dec. 17, 2020). In addition, the interests

of people who are not parties to this case (“the public interest” 

in the preliminary injunction balancing) weigh substantially 

against injunctive relief.

Plaintiffs’ remaining claims are unlikely to succeed on the 

merits, at least in federal court. Their federal procedural due 

process claim was not presented to the district court and appears to have little merit. Plaintiffs’ state-law claims present 

jurisdictional concerns that cast serious doubt on their ultimate success in federal court. The Eleventh Amendment bars 

relief against the governor; it may also bar relief against the 

local defendants. The state-law claims may also be moot as 

against the local defendants, and most fundamental, all of the 

state-law claims appear to be poor candidates for a federal 

court’s exercise of its supplemental jurisdiction.

In Part I, we summarize the district court’s decision. We 

explain in Part II the standard for a preliminary injunction 

and our standard of review and in Part III the balance of the 

equities on plaintiffs’ First Amendment claim. In Part IV, we 

address the plaintiffs’ limited prospects for success on their 

due process and state-law claims, at least in federal court. 

I. The District Court’s Denial of a Preliminary Injunction

In a swift and thorough opinion, the district court denied 

the plaintiffs’ request for a preliminary injunction because it 

found that their claims were unlikely to succeed on their merits and that the equitable balance of harms weighed heavily 

against them. Cassell v. Snyders, 458 F. Supp. 3d 981 (N.D. Ill. 
No. 20-1757 5

2020). The court found that the plaintiffs’ First Amendment 

and state-law religious freedom claims were unlikely to prevail because elected officials’ responses to a pandemic deserve 

great latitude, id. at 993–94, and religious gatherings are not 

comparable to other activities that were exempted from the 

ten-person limit, such as grocery shopping. Id. at 996–97, 

1000–01. As to the other state-law claims, the court explained 

that the governor did not appear to have exceeded his statutory emergency authority or violated state procedures for 

closing premises during a public health crisis. Id. at 1001–03.

The court also said that, in any event, the Eleventh Amendment would bar injunctive relief from a federal court under 

all the plaintiffs’ state-law claims. Id. at 999, citing Pennhurst 

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 117, 123 n.34 

(1984) (holding that state officials, and sometimes county and 

local officials, are immune from federal injunctions based on 

state law). 

The district court then explained that the equitable balance 

of harms weighed “heavily against the ... preliminary injunction that Plaintiffs seek.” Id. at 1003. The court stressed that an 

injunction “would not only risk the lives of the Beloved 

Church’s members, it would also increase the risk of infections among their families, friends, co-workers, neighbors, 

and surrounding communities.” Id. “While Plaintiffs’ interest 

in holding large, communal in-person worship services is undoubtedly important, it does not outweigh the government’s 

interest in protecting the residents of Illinois from a pandemic.” Id. 

II. The Preliminary Injunction Standard

A preliminary injunction is “‘an exercise of a very farreaching power, never to be indulged in except in a case 
6 No. 20-1757 

clearly demanding it.’” Orr v. Shicker, 953 F.3d 490, 501 (7th 

Cir. 2020), quoting Girl Scouts of Manitou Council, Inc. v. Girl 

Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1085 (7th Cir. 2008); 

see generally Winter v. Natural Resources Defense Council, Inc., 

555 U.S. 7, 22 (2008) (standard for preliminary injunction). “As 

a threshold matter, a party seeking a preliminary injunction 

must demonstrate (1) some likelihood of succeeding on the 

merits, and (2) that it has ‘no adequate remedy at law’ and 

will suffer ‘irreparable harm’ if preliminary relief is denied.” 

Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 

1992), quoting Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 

1429, 1433 (7th Cir. 1986), and Roland Machinery Co. v. Dresser 

Industries, Inc., 749 F.2d 380, 386–87 (7th Cir. 1984). If these 

threshold factors are met, the court proceeds to “a balancing 

phase,” Girl Scouts, 549 F.3d at 1086, where it “must then consider: (3) the irreparable harm the non-moving party will suffer if preliminary relief is granted, balancing that harm 

against the irreparable harm to the moving party if relief is 

denied; and (4) the public interest, meaning the consequences 

of granting or denying the injunction to non-parties.” Abbott 

Labs., 971 F.2d at 11–12. 

In the final analysis, the district court equitably weighs 

these factors together, “seeking at all times to ‘minimize the 

costs of being mistaken.’” Id. at 12, quoting American Hosp. 

Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 593 (7th Cir. 

1986). We have often referred to this process as a “sliding 

scale” approach. Id. “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.” Valencia v. City of Springfield, 883 F.3d 959, 966 (7th Cir. 

2018), quoting Girl Scouts, 549 F.3d at 1086, in turn quoting 

Roland Machinery, 749 F.2d at 387. “Where appropriate, this 
No. 20-1757 7

balancing process should also encompass any effects that 

granting or denying the preliminary injunction would have 

on nonparties (something courts have termed the ‘public interest’).” Id. 

Given the need for equitable judgment in these matters, on 

appeal, we review a district court’s decision to grant or deny 

a preliminary injunction for an abuse of discretion. Abbott 

Labs., 971 F.2d at 12. The district court “abuses its discretion 

when it commits a clear error of fact or an error of law.” Id. at 

13. “Absent such errors, we accord a district court’s decisions 

during the balancing phase of the analysis great deference.” 

Girl Scouts, 549 F.3d at 1086, citing Abbott Labs., 971 F.2d at 13; 

see also Roland Machinery, 749 F.2d at 392 (same). 

While this appeal has been briefed and under advisement, 

the legal landscape has been shifting as the Supreme Court, 

this court, and other courts have faced a host of questions arising in our nation’s response to the pandemic. Plaintiffs’ First 

Amendment claim has more potential merit than the district 

court recognized in May 2020, or than we would have recognized before November 25, 2020, when the Supreme Court decided Roman Catholic Diocese. On balance, though, we find that 

Judge Lee did not abuse his discretion in concluding that the 

equitable balance of harms weighs against granting a preliminary injunction.

III. The Balance of the Equities

Parties seeking a preliminary injunction must demonstrate not only likely success on the merits but also that they 

will suffer irreparable harm if preliminary relief is denied. Abbott Labs., 971 F.2d at 11. Such harm must also be balanced 

against any harm to the “non-moving party” and “the public 
8 No. 20-1757 

interest,” which refers to the interests of people and institutions that are not parties to the case. Id. at 11–12. In this case, 

actual restrictions on plaintiffs’ First Amendment rights to exercise their religion freely by worshipping together as they 

wish certainly count as irreparable harm. Roman Catholic Diocese, 141 S. Ct. at 67 (2020) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”), quoting Elrod v. Burns, 427 U.S. 

347, 373 (1976) (plurality). Yet government officials did not officially enforce Executive Order 10 against plaintiffs. Rather, 

when the plaintiffs filed this lawsuit, the irreparable harm 

they faced was the threat of enforcement described in the 

Cease and Desist Notice received on March 31, 2020. 

These threats were serious when they were made last 

spring; they were enough to pressure Pastor Cassell to cancel 

group worship services, very reluctantly. Credible threats like 

these can chill First Amendment activity, are not to be treated 

lightly, and are sufficient to support injunctive relief. See, e.g., 

Reno v. American Civil Liberties Union, 521 U.S. 844, 871–72 

(1997) (threat of criminal prosecution for transmission of “indecent” material to minors violated First Amendment in part 

due to law’s “obvious chilling effect on free speech”); Laird v. 

Tatum, 408 U.S. 1, 11 (1972) (“this Court has found in a number 

of cases that constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental regulations”); 

Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967) (“‘[T]he 

threat of sanctions may deter ... almost as potently as the actual application of sanctions.’ The danger of that chilling effect upon the exercise of vital First Amendment rights must 

be guarded against ... .”), quoting NAACP v. Button, 371 U.S. 

415, 433 (1963).
No. 20-1757 9

But the plaintiffs no longer face any live threat of enforcement—and have not for nine months. Illinois abandoned the 

ten-person limit on religious gatherings on May 29, 2020. 

Since then, the governor’s executive orders have consistently 

refrained from limiting the free exercise of religion. See Ill. 

Exec. Order 2020-38 (May 29, 2020); Ill. Exec. Order 2020-43 

(June 26, 2020); Ill. Exec. Order 2020-55 (Sept. 18, 2020); Ill. 

Exec. Order 2020-73 (Nov. 18, 2020); Ill. Exec. Order 2021-03 

(Jan. 19, 2021). The governor preserved this free exercise exemption even in Executive Order 73, which imposed heightened “Tier 3” restrictions during the record surge of cases and 

hospitalizations in November 2020. 

Since November 2020, vaccines have been approved and 

are beginning to be distributed. And Illinois has chosen to 

scale back its restrictions. See Ill. Exec. Order 2021-03 (returning to regional approach). This most recent order repeats the 

free exercise exemption and states that the governor going 

forward does “not intend to rescind these exemptions during 

the disaster proclamations issued due to COVID-19.” Id. For 

the last nine months, no threat of immediate enforcement has 

loomed over plaintiffs. Illinois’ response since May 2020 

shows that the prospect of such a threat being renewed is minimal.

We have considered whether the case should be dismissed 

as moot. Given the uncertainty about the future course of the 

pandemic, we are not convinced that these developments 

have definitively rendered it moot. See Danville Christian 

Academy, 141 S. Ct. at 530 (Gorsuch, J., dissenting from denial) 

(“[N]o one attempts to suggest this case is moot.”); Roman 

Catholic Diocese, 141 S. Ct. at 68 (“It is clear that this matter is 

not moot.”), citing Friends of the Earth, Inc. v. Laidlaw 
10 No. 20-1757 

Environmental Services (TOC), Inc., 528 U.S. 167, 189–190 (2000) 

(“a defendant claiming that its voluntary compliance moots a 

case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur”). But see Pleasant View Baptist 

Church v. Beshear, No. 20-6399, — Fed. App’x. —, 2020 WL 

7658397, at *1 (6th Cir. Dec. 21, 2020) (challenge to COVID-19 

executive order limiting social gatherings was moot because 

it recently expired and governor publicly disavowed any intention to renew it), citing New York State Rifle & Pistol Ass'n 

v. City of New York, 140 S. Ct. 1525, 1526 (2020), and Trump v. 

Hawaii, 138 S. Ct. 377, 377 (2017), for the proposition that 

“Once a law is off the books and replaced with a ‘new rule’ 

that does not injure the plaintiff, a case becomes moot ... .” 

While falling short of true mootness, these developments 

weigh against the need for a preliminary injunction even if the 

plaintiffs may be likely to succeed on the merits. If it were imposed again now, the earlier ten-person limit on religious 

gatherings could well violate the Free Exercise Clause. In June 

2020, we held the opposite in Elim Romanian Pentecostal Church 

v. Pritzker. 962 F.3d 341, 347 (7th Cir. 2020) (“Illinois has not 

discriminated against religion and so has not violated the 

First Amendment ... .”), citing Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). But the 

Supreme Court’s summary decision in November in Roman 

Catholic Diocese calls into question our reasoning in Elim Romanian, particularly with respect to the sorts of comparisons 

relevant in showing that restrictions on group meetings discriminate against religion. Roman Catholic Diocese held that 

strict scrutiny applied to a similar ten-person limit in New 

York because it did not equally extend to commercial activities that seemed to the Court similar in terms of health risk 
No. 20-1757 11

and less essential than religious worship. 141 S. Ct. at 66–67. 

The Court then concluded that the ten-person limit would 

likely not pass strict scrutiny. Id. at 67. So in light of Roman 

Catholic Diocese, we do not rely on Elim Romanian to reject 

plaintiffs’ claims of discrimination against religious worship.

The Illinois orders at issue here and in Elim Romanian resembled the restrictions enjoined in Roman Catholic Diocese. 

See 141 S. Ct. at 66 (“In red zones, no more than 10 persons 

may attend each religious service ... .”). The similarities do 

not necessarily mean that the plaintiffs here will succeed on 

the merits of their free-exercise claims. For example, in applying Roman Catholic Diocese, the Ninth Circuit recently reached 

opposite results in two cases addressing different religious restrictions. Compare Calvary Chapel Dayton Valley v. Sisolak, 982 

F.3d 1228 (9th Cir. Dec. 15, 2020) (reversing denial of preliminary injunction against Nevada rule that limited indoor religious gatherings to 50 people but allowed other indoor retail 

and recreational activities to continue at 50% capacity), with 

South Bay United Pentecostal Church v. Newsom, No. 20-56358, 

2021 WL 222814 (9th Cir. Jan. 22, 2021) (affirming denial of 

preliminary injunction against California rule banning all indoor religious services along with recreational activities like 

restaurants, bowling alleys, and casinos, but allowing grocery 

stores and other retail establishments to operate indoors at reduced capacity). Even more recently, the Supreme Court summarily stayed portions of the order in South Bay, but left other 

portions in place. See South Bay United Pentecostal Church v. 

Newsom, 592 U.S. —, 141 S. Ct. 716 (Feb. 5, 2021) (enjoining 

enforcement of complete ban on indoor worship services but 

allowing enforcement of 25% capacity restrictions and prohibitions on indoor singing and chanting, including in worship 

services).
12 No. 20-1757 

These cases show that, as in other contexts that call for narrow tailoring, the fine-grained details governing a public 

health order’s treatment of religious gatherings in comparison with other activities are crucial in assessing its constitutionality under Roman Catholic Diocese. Even after the Supreme Court’s most recent pronouncement, many questions 

remain unanswered: “When are such capacity limits permissible, and when are they not? And is an indoor ban never allowed, or just not in this case? Most important—do the answers to those questions or similar ones turn on record evidence about epidemiology, or on naked judicial instinct?” 

South Bay, 592 U.S. at [6] (Kagan, J., dissenting). This adds unpredictability to the narrow-tailoring analysis, which “becomes harder still when officials must guess which restrictions this Court will choose to strike down.” Id. 

Regardless, we need not conduct that fine-tuned analysis 

here with respect to Executive Orders 10 and 32. Even if the 

plaintiffs now appear more likely to succeed on the merits of 

their free exercise claim, there simply is no compelling need 

for preliminary relief against these long-expired orders, and 

there is every reason to expect that even if Illinois in the future 

believes some binding restrictions on worship services are 

needed, it will act with a close eye on the Supreme Court’s 

latest pronouncements on the subject, including the need for 

measures closely tailored to meet public health needs. 

By way of comparison, the case for emergency injunctive 

relief in Roman Catholic Diocese was much stronger than it is 

here. There, the challenged New York order was active, and 

the governor was “regularly chang[ing] the classification of 

particular areas without prior notice,” three times in the seven 

days before the Supreme Court’s order. Roman Catholic 
No. 20-1757 13

Diocese, 141 S. Ct. at 68 & n.3. In these circumstances, the Court 

concluded that “injunctive relief is still called for because the 

applicants remain under a constant threat that the area in 

question will be reclassified as red or orange.” Id. at 68; see 

also Calvary Chapel Dayton Valley, 982 F.3d at 1230 n.1 (finding 

preliminary relief was still needed where challenged order 

had expired but had been replaced with similar orders). The 

situation here is quite different. See Pleasant View Baptist 

Church, 2020 WL 7658397, at *2 (distinguishing an expired and 

nonrenewed order from order in Roman Catholic Diocese). 

This case is instead more analogous to Danville Christian 

Academy, 141 S. Ct. 527, where the Supreme Court denied 

emergency relief. Danville Christian Academy was decided less 

than a month after Roman Catholic Diocese. Kentucky’s governor issued an order closing K−12 schools on November 18, 

2020 and allowing reopening on January 4, 2021. A private religious school and the state attorney general argued that the 

order was not neutral toward religion because it closed 

schools (including religious schools) but not other establishments like restaurants, bars, and gyms. The district court issued a preliminary injunction, but the Sixth Circuit stayed the 

injunction pending appeal. On December 17, 2020, the Supreme Court denied the plaintiffs’ application to vacate the 

stay. The Court did not address the merits. Instead, it stressed 

the impending expiration of the order, which undermined the 

plaintiffs’ need for emergency relief:

The Governor’s school-closing Order effectively 

expires this week or shortly thereafter, and 

there is no indication that it will be renewed ... . 

Under all of the circumstances, especially the 

timing and the impending expiration of the 
14 No. 20-1757 

Order, we deny the application without prejudice to the applicants or other parties seeking a 

new preliminary injunction if the Governor issues a school-closing order that applies in the 

new year.

141 S. Ct. at 528. Two Justices dissented and confirmed that 

the denial of relief was based on the challenged order’s impending expiration rather than the merits. See id. (Alito, J., 

dissenting from denial) (“[T]he executive order in question 

will expire before classes would normally begin next year. 

The Court is therefore reluctant to grant relief that, at this 

point, would have little practical effect.”); id. at 530 (Gorsuch, 

J., dissenting from denial) (“The majority ... instead turns to 

an assessment of the equities. Whatever the problems with the 

Sixth Circuit’s order, it says, we should let this one go because 

this case is old news; winter break is coming soon, and the 

Governor’s decrees will expire in a few weeks, on January 4th. 

I would assess the equities differently.”). 

In this case, the equities weigh even more strongly against 

relief. The order in Danville Christian Academy was still officially “in force” when the Court denied relief. Id. Here, the 

challenged restriction has not been in force for the last nine

months. There is “no indication that it will be renewed,” see 

id. at 527, and in fact there are strong affirmative indications 

that it will not be renewed. See Ill. Exec. Order 2021-03 (Jan. 

19, 2021) (“I ... do not intend to rescind these exemptions during the disaster proclamations issued due to COVID-19.”). In 

a situation like this, there is not, and for months has not been, 

an equitable need for a preliminary injunction.

We also remind ourselves and other courts in our circuit 

that the scientific uncertainty surrounding the pandemic 
No. 20-1757 15

further cautions against enjoining state coronavirus responses 

unless absolutely necessary. The world has not suffered a 

pandemic this deadly since 1918. See U.S. Centers for Disease 

Control and Prevention, 1918 Pandemic, https://www.cdc.gov/

flu/pandemic-resources/1918-pandemic-h1n1.html. Governments and citizens have thus been forced to act with imperfect 

knowledge. It has been difficult to quantify the risks of infection posed by different public activities like worshipping or 

shopping, how the virus affects different subpopulations, 

whether hospitals might run out of beds, and to estimate 

when “herd immunity” might be achieved through vaccination—to list just some examples. Accordingly, while “the 

Constitution cannot be put away and forgotten,” Roman Catholic Diocese, 141 S. Ct. at 68, as judges without scientific expertise, we must appreciate these uncertainties and “choose the 

course of action that will minimize the costs of being mistaken.” American Hosp. Supply Corp., 780 F.2d at 593. The pandemic is not a permissible excuse for invidious discrimination, but even in Roman Catholic Diocese, the Court recognized: 

“Members of this Court are not public health experts, and we 

should respect the judgment of those with special expertise 

and responsibility in this area.” 141 S. Ct. at 68. Justice Kavanaugh emphasized this point:

To be clear, the COVID–19 pandemic remains 

extraordinarily serious and deadly. And at least 

until vaccines are readily available, the situation 

may get worse in many parts of the United 

States. The Constitution “principally entrusts 

the safety and the health of the people to the politically accountable officials of the States.” 

South Bay, 590 U.S., at —, 140 S. Ct., at 1613 

(ROBERTS, C. J., concurring in denial of 
16 No. 20-1757 

application for injunctive relief) (internal quotation marks and alteration omitted). Federal 

courts therefore must afford substantial deference to state and local authorities about how 

best to balance competing policy considerations 

during the pandemic. See ibid.

Id. at 73–74 (Kavanaugh, J., concurring).

Roman Catholic Diocese relied on evidence that the state of 

New York had both targeted some religious communities for 

greater restrictions and chosen to allow secular activities that 

seemed at least as dangerous as group worship. We have not 

been presented with any evidence of hostile targeting here. In 

addition, we find it difficult to draw a conclusion of discrimination against religion from Illinois’ initial steps and adjustments last spring to begin the enormously complex task of 

protecting public health in the face of a virus transported by 

air and by people who have no symptoms, while also allowing truly essential activities to proceed as safely as possible. It 

is difficult for courts (and governors and public health officials) to know the most appropriate comparisons for evaluating restrictions on religious activities, as shown by the Justices’ opinions in Roman Catholic Diocese and South Bay, our 

opinion in Elim Romanian, and many other court opinions issued over the last ten months.

When balancing the public interest—meaning the interests of those not before the court—courts must also keep in 

mind that plaintiffs are not asking to be allowed to make a 

self-contained choice to risk only their own health to worship 

in-person. A person’s ability to make private choices affecting 

his or her own body and health is fundamental to the concept 

of individual liberty that our Constitution protects. See, e.g., 
No. 20-1757 17

Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 

539 U.S. 558 (2003). The plaintiffs here, however, cannot invoke the moral force of the Harm Principle. See John Stuart 

Mill, On Liberty, 9 (1859) (“[T]he only purpose for which 

power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”); see also Declaration of the Rights of Man and of the Citizen, 

Art. IV (1789) (“Liberty consists in the freedom to do everything which injures no one else.”). As the district court noted, 

in-person worship services do not increase the risk of disease 

only for those who choose to take some risk in order to attend. 

Especially because of the insidious risk of non-symptomatic 

contagion, exposure to coronavirus in a place of worship can 

easily spread far beyond the congregation. It can sicken and 

even kill many others who did not consent to that trade-off.1

Cases like this lie within a fraught and evolving intersection of law, science, policy, and politics. The risk of irreparable injury to these plaintiffs is very low and dropping, even if 

we assume plaintiffs are likely to succeed on their First 

Amendment claim. We find no abuse of discretion in denying 

1 The plaintiffs argue that this risk of harming the public applies equally 

to other essential activities like grocery shopping, which were not subject 

to the ten-person limit on gatherings. Basic human needs force almost everyone these days to sacrifice some safety to obtain food and other necessities. Similarly, we all rely on manufacturing and transportation to supply 

these essential goods. So in choosing to go to the grocery store, it is unlikely that we are imposing risks on strangers that they are not also taking 

for themselves. This reciprocity simply does not exist when choosing to 

gather for in-person religious services, despite their importance to those 

who attend, where the activities may include prolonged close contact and 

singing and chanting that can spread an airborne virus.
18 No. 20-1757 

a preliminary injunction, and there is no good reason to remand for issuance of an injunction now.

IV. The Plaintiffs’ Due Process and State-Law Claims are Unlikely 

to Succeed

The plaintiffs have also failed to show a likelihood of success on their federal due process and state-law claims, so 

those claims do not support a preliminary injunction. The 

plaintiffs’ procedural due process claim is forfeited for purposes of a preliminary injunction and appears to lack merit in 

any event. The plaintiffs’ state-law claims present jurisdictional issues that cast substantial doubt on their likelihood of 

success in federal court. We address these in turn. 

A. Procedural Due Process

On appeal, the plaintiffs assert that the defendants deprived them of liberty without minimal procedural protections guaranteed by the Fourteenth Amendment when they 

threatened to close the church without following the hearing 

process set out in the Illinois Department of Public Health Act. 

The plaintiffs forfeited this claim for purposes of their motion for a preliminary injunction. The plaintiffs’ complaint 

framed their due process claim only in explicitly substantive 

rather than procedural terms. Moreover, while the plaintiffs 

argued before the district court that the defendants ignored 

state-law procedures for closing down premises, they did not 

make the very different argument that the alleged state-law 

procedural violations amounted to federal due process violations. Understandably then, the district court did not mention 

any procedural due process claim. The plaintiffs’ attempt to 

constitutionalize their state-law procedural argument is thus 

forfeited because it is new on appeal. See Scheidler v. Indiana, 
No. 20-1757 19

914 F.3d 535, 540 (7th Cir. 2019) (“A party generally forfeits 

issues and arguments raised for the first time on appeal.”), 

citing CNH Indus. Am. LLC v. Jones Lang LaSalle Am. Inc., 882

F.3d 692, 705 (7th Cir. 2018).

B. State-Law Claims

The rest of the plaintiffs’ claims arise under state law. The 

plaintiffs’ leading state-law claim is that the governor’s tenperson limit on religious gatherings violates the Illinois Religious Freedom Restoration Act, which, unlike the First 

Amendment, requires even generally applicable laws that 

burden religion to be narrowly tailored to a compelling government interest. See 775 ILCS 35/15. The plaintiffs further assert that the governor’s orders exceed the lawful scope of his 

emergency power under Illinois’ Emergency Management 

Agency Act. These novel and complex state-law claims present at least three federal jurisdictional concerns that, when 

combined, seriously jeopardize their prospects for success in 

federal court.

1. Eleventh Amendment Immunity

First, the Eleventh Amendment may completely bar the 

plaintiffs’ state-law claims. The Eleventh Amendment immunizes state officers from federal injunctions based on state 

law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 117 

(1984). This prevents us from entertaining the plaintiffs’ request to enjoin Governor Pritzker from violating the state religious freedom law or misusing his emergency powers. 

Whether the Eleventh Amendment similarly extends to the local defendants in this case—Sheriff Snyders, Health Administrator Beintema, and Chief Schaible—is not clear on this limited record. 
20 No. 20-1757 

In general, “the Eleventh Amendment does not apply to 

‘counties and similar municipal corporations.’” Id. at 123 n.34, 

quoting Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 280 

(1977). Yet there are situations where even “a suit against officials of a county or other governmental entity is barred” because the requested relief would, in effect, “run[] against the 

State.” Id. 

Sheriffs like defendant Snyders are often treated as county 

officials under Illinois law. See Scott v. O’Grady, 975 F.2d 366, 

370 (7th Cir. 1992). And although some Illinois county agencies are actually arms of the state, see Carey v. Quern, 588 F.2d 

230, 234 (7th Cir. 1978), there is reason to think Illinois law 

also defines defendant Beintema as a county official. See 55 

ILCS 5/5-25013 (County Public Health Administrators are appointed under the sole discretion of county health boards, rather than a state agency). 

Even so, county and local officials can still be treated as 

state officials for Eleventh Amendment purposes when carrying out non-discretionary duties subject to state policy control. See Richman v. Sheahan, 270 F.3d 430, 439–40 (7th Cir. 

2001) (“In determining whether the sheriff is an agent of Illinois government when performing particular functions, we 

have looked to the degree of control exercised by Illinois over 

the conduct at issue.”). This can be a complex and factually 

intensive inquiry. Compare Scott, 975 F.2d at 371 (“Under 

these circumstances, ... Sheriff O’Grady and Deputy Sheriff 

Branch were not acting as county officials. The county sheriff 

acts as an arm of the Illinois state judicial system in executing 

Writs of Assistance and other state court orders. When fulfilling this statutory duty, the sheriff and his deputies must be 

deemed state officials ... .”), with Ruehman v. Sheahan, 34 F.3d 
No. 20-1757 21

525, 528–29 (7th Cir. 1994) (treating Illinois sheriffs as non-immune county officials where challenged warrant-tracking system was designed and implemented by county government, 

and so did not implicate state policy: “State law requires the 

Sheriff to arrest the right people but says nothing about how 

he should do it.”).

Accordingly, in this case, whether the Eleventh Amendment immunizes defendants Snyders, Beintema, and Schaible 

depends on the extent to which they were exercising their 

own discretion as local officials or instead following state policy orders as part of a coordinated coronavirus response. This 

fact-intensive issue has received little attention so far in this 

case. At this juncture, we lack a sufficient factual record of the 

nature of the local defendants’ actions. Without more, the 

Eleventh Amendment casts a shadow on plaintiffs’ state-law 

prospects for success on the merits in federal court.

2. Mootness Against Local Defendants

Second, although the plaintiffs’ First Amendment claim 

against the governor is likely not technically moot, the prospect of mootness is greater when it comes to plaintiffs’ statelaw claims against the local defendants. Even if the Eleventh 

Amendment does not immunize them, their role in any future 

threat of enforcement is more attenuated than the governor’s. 

The governor would need to reimpose the ten-person limit on 

religious gatherings that has been abandoned since May 2020, 

and the county health department would then have to serve 

The Beloved Church with a new Cease and Desist Notice with 

help from the local police. What’s more, the local police have 

disavowed any past or future intention to enforce the ten-person limit against The Beloved Church. They say they were 

merely performing a ministerial function when delivering the 
22 No. 20-1757 

notice in March. And the county health department claims 

that, despite writing the notice, it has no authority to enforce 

the governor’s executive orders against the church. It claims 

the notice merely alerted the church to the possibility of statelevel enforcement by state health department.

These longer chains of events would need to occur before 

the church could face future enforcement of a reimposed tenperson limit by the local defendants. We therefore wonder if the 

original, no-longer-operative Cease and Desist Notice remains enough to sustain Article III standing against the local 

county defendants based on a threat that a new executive order could be enforced through local officials. See, e.g., Clapper 

v. Amnesty Intern. USA, 568 U.S. 398, 412–13 (2013) (no standing where plaintiffs failed to prove that, even if injury was imminent, the government would use the specific method of enforcement that plaintiffs challenged; “even if respondents 

could demonstrate that the targeting of their foreign contacts 

is imminent, respondents can only speculate as to whether the 

Government will seek to use § 1881a-authorized surveillance 

(rather than other methods) to do so”). We do not decide this 

issue but suggest the district court consider it in future proceedings. 

3. Supplemental Jurisdiction

Third, the novel and complex nature of the state-law 

claims in this case cautions against deciding them in federal 

court. The district court dealt with the asserted emergency in 

this case well in just a few days. We have had more time to 

consider. The district court should consider the prudence of 

exercising supplemental jurisdiction over the plaintiffs’ statelaw claims. The supplemental jurisdiction statute, 28 U.S.C. 

§ 1367(c), provides:
No. 20-1757 23

The district courts may decline to exercise 

supplemental jurisdiction over a claim under 

subsection (a) if— 

(1) the claim raises a novel or complex issue 

of State law,

(2) the claim substantially predominates 

over the claim or claims over which the district 

court has original jurisdiction,

(3) the district court has dismissed all claims 

over which it has original jurisdiction, or

(4) in exceptional circumstances, there are 

other compelling reasons for declining jurisdiction.

The first and fourth considerations are relevant here. As to the 

first, the state religious freedom claim is particularly novel 

and complex given the demands of narrow tailoring in this 

context, where scientific uncertainty surrounds a rapidly 

evolving pandemic. We also find little guidance from the Illinois Supreme Court on how the Illinois Religious Freedom 

Restoration Act may apply to an emergency situation like this. 

There are further complications regarding that act’s interaction with other Illinois statutes defining the governor’s emergency powers. See 20 ILCS 3305/3 (providing three exceptions 

to governor’s emergency power to limit venue capacity, none 

of which refer to religion). These state laws all serve important 

purposes, but as applied to this public health emergency, they 

are in considerable tension with one another. How these state 

laws and policies and separation of power issues should be 

balanced and resolved is vital to the state. The state courts are 

in the best position to address these questions.
24 No. 20-1757 

Section 1367(c)’s fourth consideration—”other compelling 

reasons for declining jurisdiction” in “exceptional circumstances”—may also apply. As the Chief Justice and Justice Kavanaugh have emphasized, federal courts should not interfere 

with elected officials’ responses to the pandemic unless necessary: 

The Constitution “principally entrusts the 

safety and the health of the people to the politically accountable officials of the States.” South 

Bay, 590 U. S., at —, 140 S.Ct., at 1613 

(ROBERTS, C. J., concurring in denial of application for injunctive relief) ... . Federal courts 

therefore must afford substantial deference to 

state and local authorities about how best to balance competing policy considerations during 

the pandemic.

Roman Catholic Diocese, 141 S. Ct. at 73–74 (Kavanaugh, J., concurring). So in a case like this, the exceptional circumstances 

of the pandemic give federal courts reason to think twice before wading into important and difficult state-law issues that 

the state’s own courts have yet to explore. These concerns explain why it was Michigan’s Supreme Court that decided a 

similar case that the plaintiffs rely on here. See In re Certified 

Questions from United States Dist. Court, 2020 WL 5877599 

(Mich. Oct. 2, 2020). That case was originally filed in federal 

court, but the district court chose to certify important statelaw issues concerning the governor’s authority to the Michigan Supreme Court. Id. at *3.

Finally, the limited relief that the plaintiffs could obtain in 

federal court further suggests that prudence may not require 

the court to exercise supplemental jurisdiction over the 
No. 20-1757 25

plaintiffs’ state-law claims. In this respect, the case parallels 

Pennhurst, where the Supreme Court pressed the district court

to relinquish supplemental jurisdiction over remaining statelaw claims against non-immune county officials. Any potential relief would have been incomplete because no state-level 

defendants could be enjoined. 465 U.S. at 124 (“[A]ny relief 

granted against the county officials on the basis of the state 

statute would be partial and incomplete at best. Such an ineffective enforcement of state law would not appear to serve the 

purposes of efficiency, convenience, and fairness that must inform the exercise of pendent jurisdiction.”). The same may be 

true here, where the most the plaintiffs could obtain from 

their state-law claims is an injunction against the local defendants, who are not primarily responsible for developing or executing the ten-person limit that the plaintiffs challenge.

All told, these concerns about immunity, mootness, and 

supplemental jurisdiction cast substantial doubt on whether 

the district court can and should decide the plaintiffs’ statelaw claims. These concerns undermine the plaintiffs’ ability to 

prove likely success on the merits of these claims.

Conclusion

The district court did not abuse its discretion in denying a 

preliminary injunction against a limit on religious gatherings 

that the governor abandoned months ago. In the midst of the 

coronavirus pandemic, as elected officials adapt to changing 

threats and needs, federal judges should not invoke the “farreaching power” of a temporary injunction except in cases 

“clearly demanding it,” Orr, 953 F.3d at 501, quoting Girl 

Scouts, 549 F.3d at 1085. “Under all of the circumstances, especially the timing and the ... expiration of the Order,” this 

case does not clearly demand a preliminary injunction. 
26 No. 20-1757 

Danville Christian Academy, 141 S. Ct. at 528. The plaintiffs may 

of course seek a new preliminary injunction if the governor 

issues a new order reimposing the sort of limits that the plaintiffs challenge. Id. 

AFFIRMED.