### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 20

‐ 2175

I LLINOIS R EPUBLICAN P ARTY

, et al.

, Plaintiffs

‐ Appellants

,

v.

J. B. P RITZKER

, Governor of Illinois,

Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 20 C 3489

— Sara L. Ellis

, Judge

.

____________________

A RGUED A UGUST 11, 2020

— D ECIDED S EPTEMBER 3, 2020

____________________

Before W OOD

, B ARRETT

, and S T

. E VE

, Circuit Judges

.

W OOD

, Circuit Judge

. As the coronavirus SARS

‐ CoV

‐ 2 has

raged across the United States, public o ffi cials everywhere

have sought to implement measures to protect the public

health and welfare. Illinois is no exception: Governor J. B.

Pri tz ker has issued a series of executive orders designed to

limit the virus’s opportunities to spread. In the absence of bet

‐

ter options, these measures principally rely on preventing the2 No. 20

‐ 2175

transmission of viral particles (known as virions) from one

person to the next.

Governor Pri tz ker’s orders are similar to many others

around the country. At one point or another, they have in

‐

cluded stay

‐ at

‐ home directives; fl at prohibitions of public

gatherings; caps on the number of people who may congre

‐

gate; masking requirements; and strict limitations on bars,

restaurants, cultural venues, and the like. These orders, and

comparable ones in other states, have been a tt acked on a va

‐ riety of grounds. Our concern here is somewhat unusual.

Governor Pri tz ker’s Executive Order 2020

‐ 43 (EO43, issued

June 26, 2020) exhibits special solitude for the free exercise of

religion. 1 It does so through the following exemption:

a. Free exercise of religion

. This Executive Order

does not limit the free exercise of religion. To pro

‐

tect the health and safety of faith leaders, sta ff

, con

‐

gregants and visitors, religious organizations and

houses of worship are encouraged to consult and

follow the recommended practices and guidelines

from the Illinois Department of Public Health. As

set forth in the IDPH guidelines, the safest practices

for religious organizations at this time are to

1 EO43 was set to expire by its own terms on August 22, 2020, but the

Governor issued EO52 on August 21, 2020. See https://www2.illinois.gov/

Pages/Executive

‐ Orders/ExecutiveOrder2020

‐ 52.aspx. EO52 extends

EO43 in its entirety through September 19, 2020. For convenience, we refer

in this opinion to EO43.No. 20

‐ 2175 3

provide services online, in a drive

‐ in format, or out

‐

doors (and consistent with social distancing re

‐ quirements and guidance regarding wearing face

coverings), and to limit indoor services to 10 peo

‐ ple. Religious organizations are encouraged to take

steps to ensure social distancing, the use of face

coverings, and implementation of other public

health measures.

See EO43, § 4(a), at h tt ps://www2.illinois.gov/Pages/Execu

‐

tive

‐ Orders/ExecutiveOrder2020

‐ 43.aspx. Emergency and

governmental functions enjoy the same exemption. Other

‐

wise, EO43 imposes a mandatory 50

‐ person cap on gather

‐ ings.

The Illinois Republican Party and some of its a ffi liates

(“the Republicans”) believe that the accommodation for free

exercise contained in the executive order violates the Free

Speech Clause of the First Amendment. In this action, they

seek a permanent injunction against EO43. In so doing, they

assume that such an injunction would permit them, too, to

congregate in groups larger than 50, rather than reinstate the

stricter ban for religion that some of the Governor’s earlier ex

‐

ecutive orders included, though that is far from assured. Re

‐ lying principally on Jacobson v. Massachuse tt s

, 197 U.S. 11

(1905), the district court denied the Republicans’ request for

preliminary injunctive relief against EO43. See Illinois Repub

‐

lican Party v. Pri tz ker

, No. 20 C 3489, 2020 WL 3604106 (N.D.

Ill. July 2, 2020). The Republicans promptly sought interim re

‐

lief from that ruling, see 28 U.S.C. § 1292(a)(1), but we de

‐

clined to disturb the district court’s order, Illinois Republican

Party v. Pri tz ker

, No. 20

‐ 2175 (7th Cir. July 3, 2020), and Justice

Kavanaugh in turn refused to intervene. Illinois Republican4 No. 20

‐ 2175

Party v. Pri tz ker

, No. 19A1068 (Kavanaugh, J., in chambers July

4, 2020).

We did, however, expedite the brie fi ng and oral argument

of the merits of the preliminary injunction, and we heard ar

‐

gument on August 11, 2020. Guided primarily by the Supreme

Court’s decision in Winter v. Natural Resources Defense Council

,

555 U.S. 7 (2008), we conclude that the district court did not

abuse its discretion in denying the requested preliminary in

‐ junction, and so we a ffi rm its order.

I

Before we turn to the heart of our analysis, a word or two

about the standard of review for preliminary injunctions is in

order. The Supreme Court’s last discussion of the subject oc

‐

curred in Winter

, where the Court reviewed a preliminary in

‐ junction against the U.S. Navy’s use of a sonar

‐ training pro

‐

gram. Id. at 12. It expressed the standard succinctly: “A plain

‐

ti ff seeking a preliminary injunction must establish that he is

likely to succeed on the merits, that he is likely to su ff er irrep

‐

arable harm in the absence of preliminary relief, that the bal

‐

ance of equities tips in his favor, and that an injunction is in

the public interest.” Id. at 20. The question in Winter

, however,

just as in our case, is one of degree: how likely must success on

the merits be in order to satisfy this standard? We infer from

Winter that a mere possibility of success is not enough. Id. at

22.

In the related context of a court’s power to stay its own

judgment (or that of a lower tribunal), the Court returned to

this subject in Nken v. Holder, 556 U.S. 418 (2009). There, while

noting the “substantial overlap” between the analysis of stays

and that of preliminary injunctions, id. at 434, the CourtNo. 20

‐ 2175 5

stopped short of treating them identically. It pointed out that,

unlike a preliminary injunction, which is an order directed at

someone and that governs that party’s conduct, “a stay oper

‐

ates upon the judicial proceeding itself.” Id. at 428. Before

such an order should issue, the Court said, the applicant must

make a strong showing that she is likely to succeed on the

merits. Id. at 434. At the same time, following Winter

, the

Court said that a possibility of success is not enough. Neither

is a “be tt er than negligible” chance: the Court expressly dis

‐ approved that formula, see id.

, which appears in many of our

decisions, including one the Court singled out, So fi net v. INS

,

188 F.3d 703, 707 (7th Cir. 1999). See also, e.g.

, Whitaker by

Whitaker v. Kenosha Uni fi ed Sch. Dist. No. 1 Bd. of Educ.

, 858 F.3d

1034, 1046 (7th Cir. 2017); Girl Scouts of Manitou Council, Inc. v.

Girl Scouts of U.S. of Am., Inc.

, 549 F.3d 1079, 1096 (7th Cir.

2008); Int’l Kennel Club of Chi., Inc. v. Mighty Star, Inc.

, 846 F.2d

1079, 1084 (7th Cir. 1988). We note this to remind both the dis

‐

trict courts and ourselves that the “be tt er than negligible”

standard was retired by the Supreme Court.

We understand from both Winter and Nken that an appli

‐

cant for preliminary relief bears a signi fi cant burden, even

though the Court recognizes that, at such a preliminary stage,

the applicant need not show that it de fi nitely will win the

case. A “strong” showing thus does not mean proof by a pre

‐ ponderance—once again, that would spill too far into the ul

‐

timate merits for something designed to protect both the par

‐

ties and the process while the case is pending. But it normally

includes a demonstration of how the applicant proposes to

prove the key elements of its case. And it is worth recalling

that the likelihood of success factor plays only one part in the

analysis. The applicant must also demonstrate that “irrepara

‐

ble injury is likely in the absence of an injunction,” see Winter

,6 No. 20

‐ 2175

555 U.S. at 22. In addition, the balance of equities must “tip[]

in [the applicant’s] favor,” and the “injunction [must be] in

the public interest.” Id. at 20.

II

With this standard in mind, we are ready to turn to the

case at hand. We begin by con fi rming, as we did in Elim Ro

‐

manian Pentecostal Church v. Pri tz ker

, 962 F.3d 341 (7th Cir.

2020), that the possibility that EO43 may change in the coming

days or weeks does not moot this case. The Governor has

made clear that the virus is a moving target: if possible, he

will open up the state (or certain regions of the state) further,

but if the criteria to which the state is commi tt ed take a turn

for the worse, he could reinstate more stringent measures. See

id. at 344–45. Our mootness analysis in Elim thus applies with

full force to this case.

The next question relates to the overall validity of EO43

and orders like it, which have been issued in the midst of a

general pandemic. As we noted in Elim

, the Supreme Court

addressed this type of measure more than a century ago, in

Jacobson v. Massachuse tt s

, 197 U.S. 11 (1905). The district court

appropriately looked to Jacobson for guidance, and so do we.

The question the Court faced there concerned vaccination re

‐ quirements that the City of Cambridge had put in place in re

‐

sponse to a smallpox epidemic. The law made an exception

for children who had a physician’s certi fi cate stating that they

were “un fi t subjects for vaccination,” id. at 12, but it was oth

‐

erwise comprehensive. Faced with a lawsuit by a man who

did not wish to be vaccinated, and who contended that the

City’s requirement violated his Fourteenth Amendment right

to liberty, the Court ruled for the City. In so doing, it held that

it was appropriate to defer to the City’s assessment of theNo. 20

‐ 2175 7

value of vaccinations—an assessment, it noted, that was

shared “by the mass of the people, as well as by most mem

‐

bers of the medical profession

... and in most civilized na

‐

tions.” Id. at 34. It thus held that “[t]he safety and the health

of the people of Massachuse tt s are, in the fi rst instance, for

that commonwealth to guard and protect,” and that it “[did]

not perceive that this legislation has invaded any right se

‐

cured by the Federal Constitution.” Id. at 38.

At least at this stage of the pandemic, Jacobson takes o ff the

table any general challenge to EO43 based on the Fourteenth

Amendment’s protection of liberty. Like the order designed

to combat the smallpox epidemic, EO43 is an order designed

to address a serious public

‐ health crisis. At this stage in the

present litigation, no one is alleging that the Governor lacks

the power to issue such orders as a ma tt er of state law. In

‐

stead, our case presents a more granular challenge to the Gov

‐

ernor’s action—one that focuses on his decision to subject the

exercise of religion only to recommended measures, rather

than mandatory ones. We must decide whether that distinc

‐

tion is permissible.

Normally, parties challenging a state measure that ap

‐

pears to advantage religion invoke the Establishment Clause

of the First Amendment (assuming for the sake of discussion

that the challengers can establish standing to sue). That is em

‐ phatically not the theory that the Republicans are pursuing.

We eliminated any doubt on that score at oral argument,

where counsel assured us that this was not their position. As

we explain in more detail below, the Republicans argue in

‐

stead that preferential treatment for religious exercise con

‐

fl icts with the interpretation in Reed v. Gilbert

, 576 U.S. 155

(2015), of the Free Speech Clause of the same amendment. A8 No. 20

‐ 2175

group of 100 people may gather in a church, a mosque, or a

synagogue to worship, but the same sized group may not

gather to discuss the upcoming presidential election. The Re

‐ publicans urge that only the content of the speech distin

‐ guishes these two hypothetical groups, and as they see it, Reed

prohibits such a line.

Our response is to say, “not so fast.” A careful look at the

Supreme Court’s Religion Clause cases, coupled with the fact

that EO43 is designed to give greater leeway to the exercise of

religion, convinces us that the speech that accompanies reli

‐ gious exercise has a privileged position under the First

Amendment, and that EO43 permissibly accommodates reli

‐ gious activities. In explaining that conclusion, we begin with

a look at the more conventional cases examining the interac

‐

tion of the two Religion Clauses. We then take a close look at

Reed

, and we conclude by explaining that a comparison be

‐

tween ordinary speech (including political speech, which all

agree lies at the core of the First Amendment) and the speech

aspect of religious activity reveals something more than an

“apples to apples” matching. What we see instead is “speech”

being compared to “speech plus,” where the “plus” is the pro

‐

tection that the First Amendment guarantees to religious ex

‐

ercise. Even though we held in Elim that the Governor was not

compelled to make this accommodation to religion, nothing

in Elim

, and nothing in the Justices’ brief writings on the e ff ect

of coronavirus measures on religion, says that he was forbid

‐

den to carve out some space for religious activities. See South

Bay United Pentecostal Church v. Newsom

, 140 S. Ct. 1613 (2020);

Calvary Chapel Dayton Valley v. Sisolak

, No. 19A1070, 2020 WL

4251360 (U.S. July 24, 2020).No. 20

‐ 2175 9

A

Although there is a long history and rich literature dealing

with the two Religion Clauses, it is enough here for us to

begin with the Supreme Court’s more recent decisions up

‐ holding legislation that gives religion a preferred position. We

start with Corporation of the Presiding Bishop of the Church of Je

‐

sus Christ of La tt er

‐ Day Saints v. Amos

, 483 U.S. 327 (1987). In

that case, several people who were fi red from church

‐ owned

corporations solely because they were not church members

sued the church under Title VII of the Civil Rights Act of 1964;

their theory was that the church had engaged in impermissi

‐

ble discrimination on the basis of religion. The case would

have had some legs if an ordinary employer had decided to

sack all its Catholic, or Jewish, or Presbyterian employees. Af

‐

ter all, section 703(a) of Title VII speci fi es that it is “an unlaw

‐

ful employment practice for an employer—(1) to fail or refuse

to hire or to discharge any individual, or otherwise to discrim

‐

inate against any individual [in a variety of ways] because of

such individual’s

... religion

... .” 42 U.S.C. § 2000e

‐ 2(a).

But that is not all the statute says. Section 702 states that

the law does not apply to “a religious corporation, associa

‐

tion, educational institution or society with respect to the em

‐ ployment of individuals of a particular religion to perform

[the institution’s work].” 42 U.S.C. § 2000e

‐ 1(a); see also Civil

Rights Act of 1964, Title VII, § 703(e), 42 U.S.C. § 2000e

‐ 2(e).

The plainti ff s in Amos contended that the exemption permit

‐ ting religious employers to discriminate on religious grounds

violates the Establishment Clause. The Supreme Court re

‐ jected this theory and held that the Establishment Clause per

‐

mits accommodations designed to allow free exercise of reli

‐ gion. The Court’s opinion stresses that it is permissible for the10 No. 20

‐ 2175

government to grant a bene fi t to religion when the purpose of

the bene fi t is simply to facilitate noninterference with free ex

‐

ercise:

This Court has long recognized that the govern

‐

ment may (and sometimes must) accommodate reli

‐ gious practices and that it may do so without violating

the Establishment Clause. It is well established, too,

that the limits of permissible state accommodation to

religion are by no means co

‐ extensive with the nonin

‐

terference mandated by the Free Exercise Clause.

There is ample room under the Establishment Clause

for benevolent neutrality which will permit religious

exercise to exist without sponsorship and without in

‐

terference.

483 U.S. at 334 (cleaned up).

Lest there be any doubt, the Court repeated that it had

“never indicated that statutes that give special consideration

to religious groups are per se invalid.” Id. at 338. Using the ru

‐

bric of Lemon v. Kur tz man

, 403 U.S. 602 (1971), which was then

widely accepted, the Court found that the legislature was en

‐

titled to enact a measure designed to alleviate governmental

interference with the internal a ff airs of religious institutions,

and that such a law did not have a forbidden primary e ff ect

of advancing religion. Finally, and interestingly for our case,

the Court rejected Amos’s assertion that the religious exemp

‐

tion violated the Equal Protection Clause. A statute otherwise

compatible with the Establishment Clause that “is neutral on

its face and motivated by a permissible purpose of limiting

governmental interference with the exercise of religion,” 483

U.S. at 339, had to satisfy only rational

‐ basis scrutiny forNo. 20

‐ 2175 11

Equal Protection purposes. Section 702, the Court held, easily

passed that bar.

Another case in which the Court addressed measures that

give special solicitude to the free exercise of religion was Cut

‐

ter v. Wilkinson

, 544 U.S. 709 (2005). That case involved a clash

between state prisoners who alleged infringements of their

right to practice their religion—guaranteed by both the Free

Exercise Clause and the Religious Land Use and Institution

‐

alized Persons Act (RLUIPA), 42 U.S.C. § 2000cc

‐ 1(a)(1)–(2)—

and prison o ffi cials, who asserted that the accommodations

required by RLUIPA violated the Establishment Clause.

RLUIPA was passed in response to Employment Division, De

‐

partment of Human Resources of Oregon v. Smith

, 494 U.S. 872

(1990), which held that the Free Exercise Clause does not pro

‐

hibit states from enforcing laws of general applicability that

incidentally burden religion. 2 Congress fi rst struck back with

the Religious Freedom Restoration Act (RFRA), Pub. L. No.

103

‐ 141, 107 Stat. 1488 (codi fi ed at 42 U.S.C. §§ 2000bb–

2000bb

‐ 4), in an e ff ort to require a more robust justi fi cation

for laws burdening religious exercise, but the Supreme Court

held in City of Boerne v. Flores

, 521 U.S. 507 (1997), that RFRA

could not be applied to the states. Congress’s next answer was

RLUIPA, which a ff ects only land

‐ use and institutionalized

persons, but because of the tie to federal funding, avoids the

2 We are aware that the Supreme Court has granted certiorari in Ful

‐

ton v. City of Philadelphia

, No. 19

‐ 123, 140 S. Ct. 1104 (2020), and that one of

the questions presented in that case is whether Smith should be reconsid

‐

ered. We doubt that the outcome of Fulton will have any effect on this case,

and in any event, we remain bound by Smith until the Supreme Court in

‐

structs otherwise.12 No. 20

‐ 2175

constitutional fl aws the Court found in RFRA as applied to

state institutions.

The Cu tt er plainti ff s were Ohio prisoners who adhered to

a variety of nonmainstream religions, such as Satanism,

Wicca, and Asatru. They complained that the prison was im

‐ peding their religious practices in a number of ways, includ

‐ ing by denying access to religious literature, restricting op

‐ portunities for group worship, withholding the right to fol

‐

low dress and appearance rules, and not engaging the ser

‐

vices of a chaplain. The defendants did not deny these allega

‐

tions; they argued instead that they were under no obligation

to deviate from their general policies. RLUIPA, they said, im

‐ properly advances religion to the extent that it required these

types of a ffi rmative measures.

As in Amos

, the Supreme Court held that the state “may

... accommodate religious practices

... without violating the Es

‐

tablishment Clause.” Id. at 713 (alterations in original) (inter

‐

nal quotation omi tt ed). It reiterated its comment in Walz v. Tax

Commission of City of New York

, 397 U.S. 664, 669 (1970), that

“there is room for play in the joints” between the Free Exercise

and Establishment Clauses. 544 U.S. at 713, 719. RLUIPA, it

then said, lies within the “space for legislative action neither

compelled by the Free Exercise Clause nor prohibited by the

Establishment Clause.” Id. at 719. It o ff ered this explanation

for its holding:

Foremost, we fi nd RLUIPA’s institutionalized

‐ per

‐

sons provision compatible with the Establishment

Clause because it alleviates exceptional government

‐

created burdens on private religious exercise.

See Board of Ed. of Kiryas Joel Vill. Sch. Dist. v. Gru

‐

met, 512 U.S. 687, 705 (1994) (government need not “beNo. 20

‐ 2175 13

oblivious to impositions that legitimate exercises of

state power may place on religious belief and prac

‐

tice”)

... .

544 U.S. at 720. It is noteworthy in this connection that the

predicate for the religious accommodation is a legitimate exer

‐

cise of state power, albeit one that burdens religion. Much the

same can be said of the coronavirus measures now before us.

The third case we fi nd helpful is Hosanna

‐ Tabor Evangelical

Lutheran Church & School v. Equal Employment Opportunity

Commission, 565 U.S. 171 (2012). There the Court returned to

the employment se tt ing, this time examining an action

brought by the EEOC against a church and its associated

school. The EEOC asserted that the school had fi red a teacher

in retaliation for her threat to fi le a lawsuit under disability

‐

discrimination laws; the school responded that its reason for

fi ring her was that her threat to sue was a breach of the tenets

of its faith. The central issue, however, involved the teacher’s

status: if she was properly characterized as a “minister” of the

faith, then the First Amendment barred the EEOC’s suit; if she

was instead a lay employee, the parties assumed that the case

could go forward. See also Our Lady of Guadalupe Sch. v. Mor

‐ rissey

‐ Berru

, 140 S. Ct. 2049 (2020) (extending Hosanna

‐ Tabor to

teachers responsible for instruction in the faith, regardless of

their speci fi c title or training).

In this instance, the Court found that the Free Exercise

Clause and the Establishment Clause pointed in the same di

‐

rection—both mandate noninterference “with the decision of

a religious group to fi re one of its ministers.” 565 U.S. at 181.

It endorsed the idea of a “ministerial exception” to the other

‐

wise applicable laws regulating employment relationships.

Id. at 188. But, in responding to the EEOC’s argument that no14 No. 20

‐ 2175

ministerial exception is needed, because religious organiza

‐

tions enjoy the right to freedom of association under the First

Amendment, the Court o ff ered guidance on the way the dif

‐

ferent branches of the First Amendment interact:

We fi nd this position [ i.e.

, that the general right to

freedom of association takes care of everything] unten

‐

able. The right to freedom of association is a right en

‐ joyed by religious and secular groups alike. It follows

under the EEOC’s and Perich’s view that the First

Amendment analysis should be the same, whether the

association in question is the Lutheran Church, a labor

union, or a social club.

... That result is hard to square

with the text of the First Amendment itself, which

gives special solicitude to the rights of religious organ

‐

izations. We cannot accept the remarkable view that

the Religion Clauses have nothing to say about a reli

‐ gious organization ʹ s freedom to select its own minis

‐

ters.

Id. at 189. In other words, the Religion Clauses are doing some

work that the rest of the First Amendment does not. Whether

that extra work pertains only to the implied right to freedom

of association (not mentioned in so many words in the text of

the amendment) or if it applies also to the right to freedom of

speech, is the question before us. In order to answer it, we

must examine the primary free

‐ speech case on which the Re

‐ publicans rely, Reed v. Gilbert

.

B

Reed involved the regulation of signs in the town of Gil

‐

bert, Arizona. 576 U.S. at 159. Gilbert’s municipal code regu

‐

lated signs based on the type of information they conveyed,No. 20

‐ 2175 15

and this turned out to be its fatal fl aw. Signs designated as

“Temporary Directional Signs Relating to a Qualifying Event”

were regulated more restrictively than signs conveying other

messages, including signs that were deemed to be “Ideologi

‐

cal Signs” or “Political Signs.” Id. at 159–60. The case arose

when a small church and its pastor wanted to erect temporary

signs around the town on Saturdays. Because the church had

no permanent building, it needed a way to inform interested

persons each week about where it would hold its Sunday ser

‐

vices. Id. at 161.

The problem was that the church’s signs did not comply

with the Code, which dictated size, permissible placement

spots, number per single property, and display duration. This

prompted the Town’s Sign Czar to cite the church twice for

Code violations. After e ff orts at a mutually satisfactory ap

‐ proach failed, the church sued the Town, claiming that the

Code abridged its right to free speech in violation of the First

Amendment, made applicable to the states through the Four

‐

teenth Amendment. Both the district court and the court of

appeals (over the course of a couple of rounds) ruled in favor

of the Town, because as they saw it, the Code “did not regu

‐

late speech on the basis of content.” Id. at 162. The Supreme

Court reversed.

The Court recognized two types of content

‐ based regula

‐

tions: fi rst, regulation based on the content of the topic dis

‐

cussed or the idea or message expressed, id. at 163; and sec

‐

ond, regulation that is facially content neutral, but that “can

‐

not be justi fi ed without reference to the content of the regu

‐

lated speech,” id. at 164 (cleaned up). The Town’s Code, the

Court held, fell in the fi rst category because it treated signs

di ff erently depending on their communicative content:16 No. 20

‐ 2175

If a sign informs its reader of the time and place a

book club will discuss John Locke’s Two Treatises of

Government, that sign will be treated di ff erently from

a sign expressing the view that one should vote for one

of Locke’s followers in an upcoming election, and both

signs will be treated di ff erently from a sign expressing

an ideological view rooted in Locke’s theory of govern

‐

ment. More to the point, the Church’s signs inviting

people to a tt end its worship services are treated di ff er

‐ ently from signs conveying other types of ideas. On its

face, the Sign Code is a content

‐ based regulation of

speech.

Id.

Entirely missing from Reed is any argument about, or dis

‐

cussion of, the way in which these principles apply to Free

Exercise cases. That is probably because if the Town was do

‐ ing anything, it was disadvantaging the church’s e ff ort to pro

‐

vide useful information to its parishioners, not lifting a bur

‐

den from religious practice. The only governmental interests

the Town o ff ered in support of its Code were “preserving the

Town’s aesthetic appeal and tra ffi c safety.” Id. at 171. The

Court found those interests to be woefully lacking, falling far

short of a compelling state interest and a narrowly tailored

response. Id. at 172. In order to make Reed comparable to the

case before us, we would need to postulate a Sign Code that

restricted temporary directional signs for everyone except

places of worship, and that left the la tt er free to use whatever

signs they wanted. But that is not what Reed was about, and

so we must break new ground here.No. 20

‐ 2175 17

C

We will assume for the sake of argument that free exercise

of religion involves speech, at least most of the time. One can

imagine religious practices that do not involve words, such as

a silent prayer vigil, or a pilgrimage or hajj to a sacred shrine,

or even the act of wearing religiously prescribed clothing. Per

‐ haps in some instances those actions would qualify as sym

‐

bolic speech, see, e.g.

, Texas v. Johnson

, 491 U.S. 397, 404 (1989),

but others would not. Nonetheless, we recognize the im

‐

portance of words to most religious exercise, whether those

words appear in a liturgy, or in the lyrics to sacred music, or

in a homily or sermon. And we understand the point the Re

‐ publicans are making: EO43 draws lines based on the purpose

of the gathering, and the type of speech that is taking place

sheds light on that purpose. Someone si tt ing in a place of wor

‐ ship for weekly services is allowed to be part of a group larger

than 50, but if the person in the front of the room is talking

about a get

‐ out

‐ the

‐ vote e ff ort or is giving a lecture on the Im

‐ pressionists, no more than 50 a tt endees are permi tt ed. (Some

of the Republicans’ other hypotheticals are a li tt le more

strained: if the 23rd Psalm is the scriptural passage for the

Sabbath or a Sunday service for one group, and another group

wants to use the identical text for a discussion of ancient po

‐

etry, is the di ff erent treatment based on content or something

else?)

But the Free Exercise Clause has always been about more

than speech. Otherwise, why bother to include it at all—the

First Amendment already protects freedom of speech, and we

know that speech with a religious message is entitled to just

as much protection as other speech. See Rosenberger v. Rector

and Visitors of the Univ. of Va.

, 515 U.S. 819, 837 (1995).18 No. 20

‐ 2175

Moreover, the Rosenberger Court held, nondiscriminatory fi

‐

nancial support for religious organizations would not run

afoul of the Establishment Clause, because the program was

neutral toward religion. Id. at 840. Indeed, the Court acknowl

‐ edged, it was “something of an understatement to speak of

religious thought and discussion as just a viewpoint, as dis

‐

tinct from a comprehensive body of thought.” Id. at 831.

However one wishes to characterize religion (including

the decision to refrain from identifying with any religion),

there can be no doubt that the First Amendment singles out

the free exercise of religion for special treatment. Rather than

being a mechanism for expressing views, as the speech, press,

assembly, and petition guarantees are, the Free Exercise

Clause is content based. The mixture of speech, music, ritual,

readings, and dress that contribute to the exercise of religions

the world over is greater than the sum of its parts.

The Supreme Court made much the same point in Ho

‐

sanna

‐ Tabor

, as we noted earlier, when it responded to the ar

‐

gument that the general right to freedom of association suf

‐

fi ced to protect religious groups, and thus there was no need

for a ministerial exception to the employment discrimination

rules. If that were true, the Court said, then there would be no

di ff erence between the associational rights of a social club and

those of the Lutheran Church. 565 U.S. at 189. “That result,”

the Court wrote, “is hard to square with the text of the First

Amendment itself, which gives special solicitude to the rights

of religious organizations.” Id.

Just so here. The free exercise of religion covers more than

the u tt erance of the words that are part of it. And, while in the

face of a pandemic the Governor of Illinois was not compelled

to make a special dispensation for religious activities, seeNo. 20

‐ 2175 19

Elim

, nothing in the Free Speech Clause of the First Amend

‐

ment barred him from doing so. As in the cases reconciling

the Free Exercise and Establishment Clauses, all that the Gov

‐

ernor did was to limit to a certain degree the burden on reli

‐ gious exercise that EO43 imposed.

We stress that this does not mean that anything a church

announces that it wants to do is necessarily protected. If the

church wants to hold a Labor Day picnic, or a synagogue

wants to sponsor a “Wednesday night at the movies” event,

or a church decides to host a “ba tt le of the bands,” the church

or synagogue would be subject to the normal restrictions of

50 people or fewer. We have no occasion here to opine on

where the line should be drawn between religious activities

and more casual gatherings, but such a line surely exists. And

it is important to recall that EO43 does not say that all activi

‐

ties of religious organizations are exempt from its strictures.

Only the “free exercise of religion” is covered, and those

words, taken directly from the First Amendment, provide a

limiting principle.

Because the exercise of religion involves more than simple

speech, the equivalency urged on us by the Republicans be

‐

tween political speech and religious exercise is a false one.

Reed therefore does not compel the Governor to treat all gath

‐ erings alike, whether they be of Catholics, Lutherans, Ortho

‐

dox Jews, Republicans, Democrats, University of Illinois

alumni, Chicago Bears fans, or others. Free exercise of religion

enjoys express constitutional protection, and the Governor

was entitled to carve out some room for religion, even while

he declined to do so for other activities.20 No. 20

‐ 2175

III

Before concluding, we must also comment on the Repub

‐

licans’ alternative argument: that the Governor is allowing

Black Lives Ma tt er protestors to gather in groups of far more

than 50, but he is not allowing the Republicans to do so. They

concede that their argument depends on practice, not the text

of the executive order. The text contains no such exemption,

whether for Black Lives Ma tt er, Americans for Trump, Save

the Planet, or anyone else. Should the Governor begin picking

and choosing among those groups, then we would have li tt le

trouble saying that Reed would come into play, and he would

either have to impose the 50

‐ person limit on all of them, or on

none of them.

The fact that the Governor expressed sympathy for the

people who were protesting police violence after the deaths

of George Floyd and others, and even participated in one pro

‐

test, does not change the text of the order. Nonetheless, the

Republicans counter, there are de facto changes, even if not de

jure changes. Essentially, they charge that the state should not

be leaving enforcement up to the local authorities, and that

they are aggrieved by the lax or even discriminatory levels of

enforcement that they see. Underenforcement claims are hard

to win, however, as we know from cases such as DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189

(1989). It is also di ffi cult to prevail in a case accusing the police

of racial pro fi ling. See, e.g.

, Chavez v. Ill. State Police

, 251 F.3d

612 (7th Cir. 2001). Although we do not rule out the possibility

that someone might be able to prove this type of favoritism in

the enforcement of an otherwise valid response to the

COVID

‐ 19 pandemic, the record in this case falls short.No. 20

‐ 2175 21

Indeed, the problems of late have centered on ordinary crim

‐

inal mobs looting stores, not on peaceful protestors.

The Republicans’ brief o ff ers only slim support for the

proposition that the 50

‐ person ban on gatherings does not ap

‐ ply to the Black Lives Ma tt ers speakers. It fi rst points out that

the Governor issued a press release expressing sympathy for

the protests. But such a document, untethered to any legisla

‐

tive or executive rule

‐ making process, cannot change the law.

Cf. Medellin v. Texas

, 552 U.S. 491, 523–32 (2008) (holding that

President George W. Bush’s memorandum in response to an

international court’s decision was “not a rule of domestic law

binding in state and federal courts”). The Republicans also

complain that the Chicago police stood by idly while the Black

Lives Ma tt ers protests took place, but that they dispersed “Re

‐

open Illinois” gatherings. Notably absent from these allega

‐

tions, however, is any proposed proof that state actors, not

municipal actors, were engaged in this de facto discrimination.

Finally, the Republicans contend that the Governor prom

‐

ised that the National Guard troops he deployed to Chicago

would not “interfere with peaceful protesters’ fi rst amend

‐

ment rights.” Aside from the fact that this argument appears

for the fi rst time in their Reply Brief and is thus waived, it is

unpersuasive. The Governor made clear that the National

Guard was deployed to protect property against unrest, not

to enforce the COVID

‐ 19 order. He did not single out any cat

‐

egory of protester by message. We conclude that the district

court did not abuse its discretion when it found that none of

these allegations su ffi ced to undermine the Governor’s likeli

‐

hood of success on the merits, or for that ma tt er to undercut

his showing that the state would su ff er irreparable harm if

EO43 were set aside.22 No. 20

‐ 2175

IV

We conclude with some fi nal thoughts. The entire premise

of the Republicans’ suit is that if the exemption from the 50

‐

person cap on gatherings for free

‐ exercise activities were

found to be unconstitutional (or if it were to be struck down

based on the allegedly ideologically driven enforcement strat

‐ egy), they would then be free to gather in whatever numbers

they wished. But when disparate treatment of two groups oc

‐

curs, the state is free to erase that discrepancy in any way that

it wishes. See, e.g.

, Stanton v. Stanton

, 429 U.S. 501, 504 n.4

(1977) (“[W]e emphasize that Utah is free to adopt either 18 or

21 as the age of majority for both males and females for child

‐

support purposes. The only constraint on its power to choose

is

... that the two sexes must be treated equally.”). In other

words, the state is free to “equalize up” or to “equalize

down.” If there were a problem with the religious exercise

carve

‐ out (and we emphasize that we fi nd no such problem),

the state would be entitled to return to a regime in which even

religious gatherings are subject to the mandatory cap. See

Elim

, 962 F.3d 341. This would leave the Republicans no be tt er

o ff than they are today.

We AFFIRM the district court’s order denying preliminary

injunctive relief to the appellants.