Elim Romanian Pentecostal Church & Logos Baptist Ministries v. Pritzker

• Decision Date: 16 June 2020
• Docket Number: No. 20-1811,20-1811
• Citation: 962 F.3d 341
• Parties: ELIM ROMANIAN PENTECOSTAL CHURCH and Logos Baptist Ministries, Plaintiffs-Appellants, v. Jay Robert PRITZKER, Governor of Illinois, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

962 F.3d 341

ELIM ROMANIAN PENTECOSTAL CHURCH and Logos Baptist Ministries, Plaintiffs-Appellants,

v.Jay Robert PRITZKER, Governor of Illinois, Defendant-Appellee.

No. 20-1811

United States Court of Appeals, Seventh Circuit.

Argued June 12, 2020

Decided June 16, 2020

Rehearing and Rehearing En Banc Denied July 27, 2020

Roger Karam Gannam, Daniel Joseph Schmid, Mathew D. Staver, Horatio Gabriel Mihet, Attorneys, Liberty Counsel Inc., Orlando, FL, Sorin Adrian Leahu, Attorney, Mauck & Baker, Chicago, IL, for Plaintiffs-Appellants.

Priyanka Gupta, Attorney, Office of the Attorney General, Chicago, IL, for Defendant-Appellee.

Richard Brian Katskee, Alexander Joseph Luchenitser, Attorneys, Americans United for Separation of Church and State, Washington, DC, for Amicus Curiae Americans United for Separation of Church and State

Benna Ruth Solomon, Attorney, City of Chicago Law Department, Chicago, IL, for Amicus Curiae City of Chicago.

Nimra Azmi, Attorney, Muslim Advocates, Washington, DC, for Amicus Curiae Muslim Advocates.

Hal R. Morris, Attorney, Saul Ewing Arnstein & Lehr LLP, Chicago, IL, for Amici Curiae Illinois Health and Hospital Association, Illinois State Medical Society, American Nurses Association-Illinois, Illinois Society for Advanced Practice Nursing.

Before Easterbrook, Kanne, and Hamilton, Circuit Judges.

Easterbrook, Circuit Judge.

Two churches contend, in this suit under 42 U.S.C. § 1983, that an executive order limiting the size of public assemblies (including religious services) to ten persons violates their rights under the Free Exercise Clause of the First Amendment, applied to the states by the Fourteenth Amendment. The Governor of Illinois issued this order to reduce transmission of the coronavirus SARS-CoV-2, which causes the disease COVID-19. The disease is readily transmissible and has caused a global pandemic. As of June 16, 2020, 133,639 persons in Illinois have tested positive for COVID-19, and 6,398 of these have died. Epidemiologists believe that those numbers are undercounts—persons with no or mild symptoms may not be tested, some people die of the disease without being tested, and some deaths attributed to other causes may have been hastened or facilitated by the effect of COVID-19 weakening the immune system or particular organs.

Experts think that, without controls, each infected person will infect two to three others, causing an exponential growth in the number of cases. Because many of those cases require intensive medical care, infections could overwhelm the medical system. The World Health Organization, the Centers for Disease Control, and many epidemiologists recommend limiting the maximum size of gatherings (the Governor's cap of ten comes from a CDC recommendation), adopting a policy of social distancing (everyone staying at least six feet away from anyone not living in the same household—ten feet if the other person is singing or talking loudly), isolating people who have the disease, wearing face coverings so that people who have the disease but don't know it are less likely to infect others, and tracing the contacts of those who test positive. Reducing the number of people at gatherings protects those persons, and perhaps more important it protects others not at the gathering from disease transmitted by persons who contract COVID-19 by attending a gathering that includes infected persons.

Plaintiffs contend, however, that a limit of ten persons effectively forecloses their in-person religious services, even though they are free to hold multiple ten-person services every week, and that the Governor's proposed alternatives—services over the Internet or in parking lots while worshipers remain in cars—are inadequate for them.

Here is the relevant text of the order in question:

All public and private gatherings of any number of people occurring outside a single household or living unit are prohibited, except for the limited purposes permitted by this Executive Order. Pursuant to current guidance from the CDC, any gathering of more than ten people is prohibited unless exempted by this Executive Order. Nothing in this Executive Order prohibits the gathering of members of a household or residence.

All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, museums, arcades, fairs, children's play centers, playgrounds, funplexes, theme parks, bowling alleys, movie and other theaters, concert and music halls, and country clubs or social clubs shall be closed to the public.

Executive Order 2020-32 § 2(3) (Apr. 30, 2020) (boldface in original). Section 2(5)(vi) adds that people are free to leave their homes

[t]o engage in the free exercise of religion, provided that such exercise must comply with Social Distancing Requirements and the limit on gatherings of more than ten people in keeping with CDC guidelines for the protection of public health. Religious organizations and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregants.

One other section of this order bears on religious activities. Section 2(12)(c) includes in the list of "essential" functions exempt from the ten-person cap:

Businesses and religious and secular nonprofit organizations, including food banks, when providing food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities[.]

Religious services, too, are deemed "essential," see § 2(5)(vi), which is why they can proceed while concerts are forbidden, but they have not been exempted from the size limit.

The churches contend that these rules burden the free exercise of their faith, which requires adherents to assemble in person, and discriminates against religious services compared with the many economic and charitable activities that the Governor has exempted from the ten-person limit. The churches are particularly put out that their members may assemble to feed the poor but not to celebrate their faith. A district court, however, concluded that Executive Order 2020-32 is neutral with respect to religion and supported by the compelling need to safeguard the public health during a pandemic. The court denied the motion for a preliminary injunction. ––– F.Supp.3d ––––, 2020 WL 2468194, 2020 U.S. Dist. LEXIS 84348 (N.D. Ill. May 13, 2020). Plaintiffs appealed under 28 U.S.C. § 1292(a)(1).

We denied the churches’ motion for an injunction pending appeal, with this explanation:

Based on this court's preliminary review of this appeal for purposes of this motion, we find that plaintiffs have not shown a sufficient likelihood of success on the merits to warrant the extraordinary relief of an injunction pending appeal. The Governor's Executive Order 2020-32 responds to an extraordinary public health emergency. See generally Jacobson v. Massachusetts , 197 U.S. 11 [25 S.Ct. 358, 49 L.Ed. 643] (1905). The Executive Order does not discriminate against religious activities, nor does it show hostility toward religion. It appears instead to impose neutral and generally applicable rules, as in Employment Division v. Smith , 494 U.S. 872 [110 S.Ct. 1595, 108 L.Ed.2d 876] (1990). The Executive Order's temporary numerical restrictions on public gatherings apply not only to worship services but also to the most comparable types of secular gatherings, such as concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods, especially where speech and singing feature prominently and raise risks of transmitting the COVID-19 virus. Worship services do not seem comparable to secular activities permitted under the Executive Order, such as shopping, in which people do not congregate or remain for extended periods. Further, plaintiffs-appellants may not obtain injunctive relief against the Governor in federal court on the basis of the Illinois Religious Freedom Restoration Act. See Pennhurst State School & Hospital v. Halderman , 465 U.S. 89 [104 S.Ct. 900, 79 L.Ed.2d 67] (1984).

No. 20-1811, 2020 WL 2517093 (7th Cir. May 16, 2020). We expedited briefing and oral argument.

Before the case could be argued, the Governor replaced Executive Order 2020-32 with Executive Order 2020-38 (May 29, 2020), which permits the resumption of all religious services. Section 4(a) of Order 2020-38 contains this exemption:

This Executive Order does not limit the free exercise of religion. To protect the health and safety of faith leaders, staff, congregants and visitors, religious organizations and houses of worship are encouraged to consult and follow the recommended practices and guidelines from the Illinois Department of Public Health. As set forth in the IDPH guidelines, the safest practices for religious organizations at this time are to provide services online, in a drive-in format, or outdoors (and consistent with social distancing requirements and guidance regarding wearing face coverings), and to limit indoor services to 10 people. Religious organizations are encouraged to take steps to ensure social distancing, the use of face coverings, and implementation of other public health measures.

What used to be a cap of ten persons became a recommendation. Because this section is an "exemption," none of Executive Order 2020-38's rules applies to religious exercise. The guidelines, issued on May 28 and available at https://www.dph.illinois.gov/covid19/community-guidance/places-worship-guidance, contain eight single-spaced pages of recommendations but do not impose any legal obligation.

Illinois contends that Executive Order 2020-38 makes this suit moot, because it gives the churches all of the relief they wanted from a judge. Plaintiffs observe, however, that the Governor could restore the approach of Executive Order 2020-32 as...