IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ELIM ROMANIAN PENTECOSTAL CHURCH )

& LOGOS BAPTIST MINISTRIES )

)

Plaintiffs, ) Case No. 20 C 2782

)

v. )

) Judge Robert W. Gettleman

JAY ROBERT PRITZKER, )

in his official capacity as Governor of the ) 

State of Illinois, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Elim Romanian Pentecostal Church (“Elim”) and Logos Baptist Ministries 

(“Logos”) brought a ten-count complaint against defendant Illinois Governor Jay Robert Pritzker 

under 42 U.S.C. § 1983, alleging that Governor Pritzker’s emergency COVID-19 orders violated 

their rights under the First Amendment, the Religious Land Use and Institutionalized Persons 

Act, and the Illinois Religious Freedom Restoration Act. Defendant has moved to dismiss,

arguing that plaintiffs’ claims are moot, and sovereign immunity and qualified immunity bar

plaintiffs’ claims for nominal damages. (Doc. 67). For the reasons stated below, defendant’s 

motion is granted. 

BACKGROUND

During the first few weeks of the COVID-19 pandemic, on April 30, 2020, Governor 

Pritzker issued Executive Order 2020-32 (“Order 32”) to reduce transmission of the coronavirus 

SARS-CoV-2, which causes the disease COVID-19. That executive order required 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, prohibited “[a]ll public and private 

Case: 1:20-cv-02782 Document #: 72 Filed: 07/26/21 Page 1 of 9 PageID #:707
2

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 were permitted to leave their residence only to perform certain 

“Essential Activities,” including “to engage in the free exercise of religion.” Order 32 further 

stated that parties were permitted to leave their residence: “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.” 

On May 7, 2020, plaintiffs sued Governor Pritzker, challenging Order 32 to the extent it 

restricted religious gatherings to ten persons, arguing that it violated numerous of their federal 

constitutional rights, most notably the right to free exercise of religion contained in the First 

Amendment. When plaintiffs sued, rates of COVID-19 were sharply increasing in Illinois and 

there was “no known cure, no effective treatment and no vaccine.” Elim Romanian Pentecostal 

Church v. Pritzker, -- F.Supp.3d --, 2020 WL 2468194 (N.D. Ill. May 2020). Plaintiffs

immediately moved for a temporary restraining order and a preliminary injunction, which this 

court denied. Id. Plaintiffs then appealed that order.

Before the case could be argued on appeal, on May 29, 2020, Governor Pritzker replaced 

Order 32 with Executive Order 2020-38 (“Order 38”). Order 38 permitted the resumption of all 

religious services, making social distancing and a ten-person cap advisory only. On appeal, 

defendant argued that Order 38 made the suit moot, because “it gives the churches all of the 

relief they wanted from a judge.” Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 

344 (7th Cir. 2020). In an opinion published on June 16, a mere 18 days after Governor Pritzker 

Case: 1:20-cv-02782 Document #: 72 Filed: 07/26/21 Page 2 of 9 PageID #:708
3

issued Order 38, the Seventh Circuit noted that “the Governor could restore the approach of 

Executive Order 2002-32 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.” Id. The Seventh Circuit 

further stated:

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 recur.” 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 [Order 32] will never be restored. It follows that the dispute 

is not moot and we must address the merits of plaintiffs’ challenge to [Order 32] 

even though it is no longer in effect.

Id. at 345 (internal citations omitted).

The Seventh Circuit proceeded to analyze Order 32, holding that “Illinois has not 

discriminated against religion and so has not violated the First Amendment” and affirming this 

court’s earlier ruling that denied a preliminary injunction. Id. at 347. Plaintiffs unsuccessfully

moved for a rehearing and rehearing en banc, and this court stayed the case pending those

appeals. Plaintiffs subsequently sought relief from the Supreme Court. The Supreme Court 

declined to grant a writ of certiorari in a three-sentence order, stating in part: “The Illinois 

Department of Public Health issued new guidance on May 28, [2020].” 140 S.Ct. 2823. On 

April 16, 2021, this court lifted the stay and instructed defendant to file a responsive pleading. 

Since May 29, 2020, Governor Pritzker has not imposed any restrictions on religious 

gatherings—despite surges of COVID-19 cases in the fall of 2020 and winter of 2021, during 

which only essential workers were vaccinated. Additionally, in January 2021, Governor

Pritzker stated that he would not reimpose the ten-person limit on religious services for the 

duration of the pandemic. On June 11, 2021, Illinois transitioned to a full reopening. As of 

Case: 1:20-cv-02782 Document #: 72 Filed: 07/26/21 Page 3 of 9 PageID #:709
4

July 9, 2021, over 49% of Illinoisans have been fully vaccinated, with many more receiving at 

least one dose of the two-dose vaccine.1

DISCUSSION

Defendant moves to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing that 

plaintiffs’ claims for injunctive and declaratory relief are moot, and that plaintiffs’ request for 

nominal damages fails as a matter of law under principles of sovereign immunity and qualified 

immunity. The court will address each argument in turn.

Defendant first argues that plaintiffs’ requests for injunctive relief and declaratory relief 

are moot. “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for 

purposes of Article III—‘when the issues presented are no longer live or the parties lack a legally 

cognizable interest in the outcome.’” Already, Inc. v. Nike, Inc., 568 U.S. 85, 91 (2013) 

(quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). “No matter how vehemently 

the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case 

is moot if the dispute is no longer embedded in any actual controversy about the plaintiff’s 

particular legal rights.” Id. 

However, 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.” Id. “[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.” Id. (citing Friends of the Earth, 

1 Ill. Dep’t of Public Health, Covid-19 Vaccine Administration Data, https://www.dph.illinois.gov/covid19/

vaccinedata?county=Illinois (last updated July 9, 2021).

Case: 1:20-cv-02782 Document #: 72 Filed: 07/26/21 Page 4 of 9 PageID #:710
5

Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000)); see also Elim 

Romanian Pentecostal Church, 962 F.3d at 345 (“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 recur.”). 

Defendant notes that Order 32 expired over a year ago, and that all superseding orders 

have included a categorical exemption for religion (meaning, no restrictions on religious 

activities). Governor Pritzker has also repeatedly affirmed that Illinois would not impose 

restrictions on religious activities, even during the height of the second wave of COVID-19 cases 

in the fall of 2020 and the winter of 2021. According to defendant, the case is moot, and any 

injunctive or declaratory relief “would effectively be for show.” Further, defendant argues that 

it is absolutely clear that any executive orders restricting religion are not reasonably expected to 

recur. These arguments are both retrospective and prospective: Governor Pritzker did not 

reinstate any restrictions on religious activities in the fall and winter when COVID-19 cases were 

surging; and given that the state is now fully open and many people are vaccinated, he is

extremely unlikely to do so going forward. 

Plaintiffs respond with a slew of recent Supreme Court cases, arguing that their claims 

are not moot because Governor Pritzker retains power to reinstate his “unconstitutional regime.” 

Yet every single Supreme Court case cited by plaintiffs is readily distinguishable. As a 

preliminary matter, none of cited cases’ holdings relate to standing or mootness; rather, they 

address the issue of a preliminary injunction, particularly whether the plaintiffs would succeed 

on the merits. Thus, any and all discussions of standing or mootness are cursory dicta, or 

statements in a concurring opinion. Neither are binding on this court. 

Case: 1:20-cv-02782 Document #: 72 Filed: 07/26/21 Page 5 of 9 PageID #:711
6

In addition to that threshold issue, the factual and legal concerns in the cited Supreme 

Court cases are quite different from those of the instant suit. For example, plaintiffs’ three

favorite cases, and the only ones worth discussing, South Bay United Pentecostal Church v. 

Newsom, 141 S.Ct. 716 (2021), Tandon v. Newsom, 141 S.Ct. 1294 (2021), and Roman Catholic 

Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020) (per curiam), all involved preliminary 

injunction orders. In reviewing the requests for an injunction, the Supreme Court was 

persuaded by the fact that the plaintiffs were likely to succeed on the merits, because the 

COVID-19 orders were not narrowly tailored and discriminated against religion. In South Bay, 

three justices emphasized that Hollywood and other workplaces had secured exemptions from 

COVID-19 orders, but houses of worship did not. 141 S.Ct. 716, 719 (Gorsuch, J. statement)

(“[O]nce more, we appear to have a State playing favorites during a pandemic, expending 

considerable effort to protect lucrative industries (casinos in Nevada; movie studios in 

California) while denying similar largesse to its faithful.”). In Catholic Diocese, the Supreme 

Court was troubled by New York’s COVID-19 order, which could “be viewed as targeting the 

ultra-Orthodox Jewish community,” and otherwise singled out houses of worship for harsher 

treatment. 141 S.Ct. 63, 66 (internal citations omitted).2 The same concerns also permeate the 

opinion in Tandon, 141 S.Ct. 1294, 1297 (“California treats some comparable secular activities 

more favorably than at-home religious exercise....”). These concerns are not present here. In 

fact, the Seventh Circuit in this very case found that Order 32 did not discriminate against 

religion. 

2 In addition to singling out one religious group, New York’s COVID-19 scheme permitted non-essential businesses 

such as acupuncture facilities and plants manufacturing chemicals for electronics to remain open, while religious 

services were restricted to ten people or fewer. 

Case: 1:20-cv-02782 Document #: 72 Filed: 07/26/21 Page 6 of 9 PageID #:712
7

More to the point, plaintiffs’ brief makes a great deal over the fact that, in Tandon, 

California’s COVID-19 order changed before the Supreme Court decided the case. 141 S.Ct. 

1294, 1297 (“[E]ven if the government withdraws or modifies a COVID restriction in the course 

of litigation, that does not necessarily moot the case”). But California merely set an expiration 

date for the relevant order, which was set to expire after the Supreme Court published its 

opinion. Id. (“[A]lthough California officials changed the policy shortly after this case 

application was filed, the previous restrictions remain in place until April 15th, and officials with 

a track record of ‘moving the goalposts’ retain authority to reinstate those heightened restrictions 

at any time”).3

 The other case involving a change in COVID orders is Catholic Diocese, and in 

that case, the order was changed from a ten-person limit to 50% capacity. Thus, the order was 

still in effect, just with a change in number of attendees. Despite plaintiffs’ insistent arguments, 

there are no Supreme Court cases in which the order had been completely rescinded for a 

significant length of time, with no imminent or credible threat of reinstatement, before a court 

issued a ruling.

Here, the COVID-19 order restricting religious activities ended in May 2020, over 15 

months ago. And despite plaintiffs’ arguments to the contrary, there is no credible threat of 

reinstatement. Again, during the surges of COVID cases in the fall of 2020 and winter of 

2021—when a vaccine was not readily available—the state did not attempt to reinstate its orders 

on religious activities at all. Illinois did not “move the goalpost” for religious activities during 

the worst months of the pandemic. There is no reason to assume it would do so now, when 49% 

3 The order was set to expire on April 15, 2021; the Supreme Court issued its opinion on April 9, 2021. 

Case: 1:20-cv-02782 Document #: 72 Filed: 07/26/21 Page 7 of 9 PageID #:713
8

of Illinoisans are fully vaccinated, the state has fully reopened, and the pandemic appears to be 

under control. 

Plaintiffs next argue that the Seventh Circuit’s decision constitutes the law of the case 

and prevents this court from finding the case moot. See Jarrard v. CDI Telecom., Inc., 408 F.3d 

905, 912 (7th Cir. 2005). Defendant responds with its own law-of-the-case argument: that the 

Supreme Court declined to hear the case because Order 32 was no longer in effect (arguably, that 

the case was moot). Focusing on plaintiffs’ argument, and as noted above, the Seventh Circuit’s 

opinion stated that the case was not moot at that time because it was “not absolutely clear that the 

terms of [Order 32] will never be restored.” Id. at 345 (internal citations omitted). The Seventh 

Circuit’s decision came out a mere 18 days after defendant issued Order 38. At that time, the 

prospect of moving the goalpost, of returning to earlier phases and imposing restrictions, was 

arguably possible. Much has changed since the Seventh Circuit’s statement. After 15 months, 

the Governor’s statements, and the Governor’s behavior during the second surge, the likelihood 

that the Governor would reinstate the restrictions on religious services is highly remote.

4

For the reasons stated above, it is absolutely clear that the alleged wrongful behavior—

restrictions on religion due to the COVID-19 pandemic—are not reasonably expected to recur. 

It is clear to the court that this case is moot and has been for some time. Defendant’s motion to 

dismiss on this basis is granted. 

Finally, defendant argues that any claim for nominal damages is barred by sovereign 

4 Plaintiffs’ final argument is that they are contesting the Governor’s “tyrannical scheme” as a whole, and therefore 

the case is not moot. This argument is a nonstarter. In the complaint and throughout the duration of this case, 

plaintiffs complain only about the ten-person restriction on religious activity. Even if the court interpreted the 

allegations broadly, to encompass COVID-19 restrictions on religion generally, the analysis would be the same. 

Plaintiffs have not alleged any injury resulting from the scheme as a whole, nor could they with any serious credibility.

Case: 1:20-cv-02782 Document #: 72 Filed: 07/26/21 Page 8 of 9 PageID #:714
9

immunity and qualified immunity. See McDonough Assocs, Inc. v. Grumloh, 722 F.3d 1043 

(7th Cir. 2013); Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). Plaintiffs make no 

arguments in response and have therefore waived objections to defendant’s position. The court 

agrees with defendant’s analysis in his brief and dismisses plaintiffs’ claims for damages.

CONCLUSION

For the reasons stated above, defendant’s motion to dismiss (Doc. 67) is granted in its 

entirety. 

ENTER:

__________________________________________

Robert W. Gettleman

United States District Judge

DATE: July 26, 2021

Case: 1:20-cv-02782 Document #: 72 Filed: 07/26/21 Page 9 of 9 PageID #:715