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Law360 (September 3, 2020, 10:12 PM EDT ) The Seventh Circuit on Thursday refused to block Illinois Gov. J.B. Pritzker's COVID-19 executive order, which the state's Republican Party had argued impermissibly gives leeway to religious gatherings, ruling that the speech that accompanies religious exercise has a privileged position under the First Amendment.
As has been the case all over the country, the governor issued a series of executive orders intended to stymie the virus' spread. The orders have included stay-at-home directives, prohibitions of public gatherings, caps on the number of people who can congregate, and restrictions on bars, restaurants and other businesses, according to the suit.
The Illinois Republican Party and some of its affiliates took issue with one of those orders that bans gatherings of more than 50 individuals but carves out an exception for the free exercise of religion. Notably, the Republicans argued that the accommodation for free exercise in Executive Order 2020‐43 violates the Free Speech Clause of the First Amendment, per their case. Preferential treatment for religious exercise, but not for political speech, is illegal, the Republicans said, urging an Illinois federal court to block the measure.
The district court, however, declined to preliminarily shut down the order, and the Seventh Circuit on Thursday agreed. Pritzker's executive order permissibly accommodates religious activities, the three-judge panel held, pointing to U.S. Supreme Court precedent as well as the fact that the order is designed to give greater leeway to the exercise of religion.
"[A] comparison between 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," the Seventh Circuit said.
The panel added, "What we see instead is 'speech' being compared to 'speech plus,' where the 'plus' is the protection that the First Amendment guarantees to religious exercise."
While the First Amendment's speech, press, assembly and petition guarantees are mechanisms for expressing views, the Free Exercise Clause is content-based, the Seventh Circuit noted.
"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," it said.
And all Pritzker did in his order was limit to a certain degree the burden on religious exercise his order imposed, according to the order.
"Because the exercise of religion involves more than simple speech, the equivalency urged on us by the Republicans between political speech and religious exercise is a false one," the panel said.
The Seventh Circuit also said that the Republicans were incorrectly assuming that an injunction blocking the order would permit them, too, to gather in groups larger than 50, rather than reinstate the stricter ban for religion that some of the governor's earlier executive orders included.
"That is far from assured," the panel said.
Daniel Suhr, counsel for the Republican Party, said in a statement Thursday that all Americans are entitled to equal treatment under the law, including the Illinois Republican Party and local party organizations.
"We are disappointed in the decision, respectfully disagree with it, and are considering our options," he said.
The Illinois attorney general's office, which is representing the governor, didn't immediately return a request for comment late Thursday.
U.S. Circuit Judges Diane P. Wood, Amy C. Barrett and Amy J. St. Eve sat on the panel for the Seventh Circuit.
The Illinois Republican Party is represented by Daniel R. Suhr and Jeffrey M. Schwab of Liberty Justice Center.
The governor is represented by Priyanka Gupta, Nadine J. Wichern and Frank H. Bieszczat of the Illinois attorney general's office.
The case is Illinois Republican Party et al. v. Pritzker, case number 20-2175, in the U.S. Court of Appeals for the Seventh Circuit.
--Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
