United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

July 3, 2020

Before

DIANE P. WOOD, Chief Judge

JOEL M. FLAUM, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 20-2175

ILLINOIS REPUBLICAN PARTY, et al.,

Plaintiffs-Appellants,

v.

J.B. PRTIZKER, as Governor,

Defendant-Appellee.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 1:20-cv-03489

Sarah L. Ellis,

Judge.

O R D E R

The plaintiff-appellants sued Governor Pritzker, asserting that his executive 

order in response to the global pandemic caused by the virus COVID-19 violates the 

First Amendment, the Fourteenth Amendment, and is ultra vires, and they moved in 

the district court for a temporary restraining order or preliminary injunction preventing 

the governor from enforcing the order. The district court denied the motion, and the

plaintiffs appealed. They have filed this emergency motion to preliminarily enjoin the 

governor’s executive order pending appeal. 

For this court to enter a preliminary injunction, the movants must first 

demonstrate a likelihood of success on the merits. See Winter v. Natural Resources Defense 

Council, Inc., 555 U.S. 7, 20 (2008). They must also show the absence of an adequate 

remedy at law and a threat of irreparable harm without a stay. Whitaker ex rel. Whitaker 

Case: 20-2175 Document: 5 Filed: 07/03/2020 Pages: 2
No. 20-2175 Page 2

v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). If they 

make this showing, we then consider the balance of harms. Id.

The plaintiffs argue that they have a likelihood of success because the governor’s 

order is a content-based restriction on speech. Although that may be true, see Reed v. 

Town of Gilbert, 576 U.S. 155, 163 (2015), that fact is not dispositive by itself. We must 

then consider whether this distinction can survive strict scrutiny. See id. at 171. The 

plaintiffs concede that the executive order is supported by a compelling state interest, 

namely, the need to fight COVID-19 effectively. That need necessarily takes into 

account both the extraordinarily infectious nature of this particular virus and the very 

high efficiency of transmission. There is thus a very close link between a measure 

regulating the size of gatherings and the goal of impeding the spread of the virus.

And the adoption of an exception that recognizes the constitutional status of the 

right to free exercise of religion does not automatically run afoul of the rule in Reed. The 

First Amendment already protects the right to freedom of speech and freedom of 

association. Using the normal canons of interpretation, we would not expect the Free 

Exercise Clause to be surplusage—it must be doing more work. See Orgone Capital III, 

LLC v. Daubenspeck, 912 F.3d 1039, 1047 (7th Cir. 2019) (citing ANTONIN SCALIA & BRYAN 

A. GARNER, READING LAW 176 (2012)). Our recent opinion in Elim Romanian Pentecostal 

Church v. Pritzker, 20-1811, 2020 WL 3249062 (7th Cir. June 16, 2020) (Elim II), holds that 

the governor did not even have to accommodate religion in this way. But Elim II does 

not hold that he was forbidden from doing so. Accordingly, the plaintiffs are unlikely to 

succeed on the merits.

As for the balance of harms, we see no logical stopping point to the plaintiffs’ 

position here; they seem to want an all-or-nothing rule. COVID-19 is “a novel severe 

acute respiratory illness that has killed ... more than 100,000 nationwide. At this time, 

there is no known cure, no effective treatment, and no vaccine. Because people may be 

infected but asymptomatic, they may unwittingly infect others.” S. Bay United 

Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring). If 100 

Democrats or 100 Republicans gather and ten get infected, those ten may go home and 

infect a local shopkeeper, a local grocery-store worker, their postal carrier, or their 

grandmother—someone who had no interest in the earlier gathering. Thus, the balance 

of harms in this instance strongly favors the governor.

Accordingly, IT IS ORDERED that the motion is DENIED.

Case: 20-2175 Document: 5 Filed: 07/03/2020 Pages: 2