Elim Romanian Pentecostal Chur v. Jay Pritzker

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-1811

ELIM ROMANIAN PENTECOSTAL CHURCH and LOGOS BAPTIST

MINISTRIES,

Plaintiffs-Appellants,

v.

JAY ROBERT PRITZKER, Governor of Illinois,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 20 C 2782 — Robert W. Gettleman, Judge.

____________________

ARGUED JUNE 12, 2020 — DECIDED JUNE 16, 2020

____________________

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 limit-

ing the size of public assemblies (including religious ser-

vices) to ten persons violates their rights under the Free Ex-

ercise Clause of the First Amendment, applied to the states

2 No. 20-1811

by the Fourteenth Amendment. The Governor of Illinois is-

sued this order to reduce transmission of the coronavirus

SARS-CoV-2, which causes the disease COVID-19. The dis-

ease is readily transmissible and has caused a global pan-

demic. 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 under-

counts—persons with no or mild symptoms may not be test-

ed, some people die of the disease without being tested, and

some deaths aaributed to other causes may have been has-

tened 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 rec-

ommend limiting the maximum size of gatherings (the Gov-

ernor’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 con-

tacts 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 transmiaed by persons who contract COVID-19 by

aaending a gathering that includes infected persons.

No. 20-1811 3

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 oc-

curring outside a single household or living unit are prohibited,

except for the limited purposes permiaed by this Executive Or-

der. 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, mu-

seums, arcades, fairs, children’s play centers, playgrounds, fun-

plexes, 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 or-

ganizations and houses of worship are encouraged to use online

or drive-in services to protect the health and safety of their con-

gregants.

4 No. 20-1811

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, in-

cluding food banks, when providing food, shelter, and social

services, and other necessities of life for economically disadvan-

taged or otherwise needy individuals, individuals who need as-

sistance as a result of this emergency, and people with disabili-

ties[.]

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 ex-

ercise of their faith, which requires adherents to assemble in

person, and discriminates against religious services com-

pared 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. 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 pend-

ing appeal, with this explanation:

Based on this court’s preliminary review of this appeal for pur-

poses of this motion, we find that plaintiffs have not shown a

sufficient likelihood of success on the merits to warrant the ex-

traordinary relief of an injunction pending appeal. The Gover-

nor’s Executive Order 2020-32 responds to an extraordinary pub-

No. 20-1811 5

lic health emergency. See generally Jacobson v. Massachuse<s, 197

U.S. 11 (1905). The Executive Order does not discriminate

against religious activities, nor does it show hostility toward re-

ligion. It appears instead to impose neutral and generally appli-

cable rules, as in Employment Division v. Smith, 494 U.S. 872

(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 con-

certs, 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 transmiaing the COVID-19 virus. Worship services

do not seem comparable to secular activities permiaed under the

Executive Order, such as shopping, in which people do not con-

gregate 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. Halder-

man, 465 U.S. 89 (1984).

No. 20-1811 (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 ser-

vices. 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, congre-

gants and visitors, religious organizations and houses of wor-

ship 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 so-

cial distancing requirements and guidance regarding wearing

face coverings), and to limit indoor services to 10 people. Reli-

gious organizations are encouraged to take steps to ensure social

6 No. 20-1811

distancing, the use of face coverings, and implementation of oth-

er public health measures.

What used to be a cap of ten persons became a recommenda-

tion. Because this section is an “exemption,” none of Execu-

tive Order 2020-38’s rules applies to religious exercise. The

guidelines, issued on May 28 and available at

haps://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 easily as he replaced it—and that the “Restore Il-

linois Plan” (May 5, 2020) reserves the option of doing just

this if conditions deteriorate. Executive Order 2020-38

moved Illinois to Phase 3 of this Plan, which cautions that

some things “could cause us to move back”:

IDPH will closely monitor data and receive on-the-ground feed-

back from local health departments and regional healthcare

councils and will recommend moving back to the previous

phase based on the following factors:

• Sustained rise in positivity rate [of COVID-19 test results]

• Sustained increase in hospital admissions for COVID-19 like

illness

• Reduction in hospital capacity threatening surge capabilities

• Significant outbreak in the region that threatens the health of

the region

Voluntary cessation of the contested conduct makes litiga-

tion moot only if it is “absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to re-

No. 20-1811 7

cur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services

(TOC), Inc., 528 U.S. 167, 189 (2000). 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 Executive

Order 2020-32 will never be restored. It follows that the dis-

pute is not moot and that we must address the merits of

plaintiffs’ challenge to Executive Order 2020-32 even though

it is no longer in effect.

The churches contend that any limit on religious gather-

ings is permissible only if supported by a compelling inter-

est, which they say is lacking. Yet Employment Division v.

Smith, 494 U.S. 872 (1990), holds that the Free Exercise

Clause does not require a state to accommodate religious

functions or exempt them from generally applicable laws.

The Justices recently granted certiorari in a case presenting

the question whether Smith should be overruled, Fulton v.

Philadelphia, 140 S. Ct. 1104 (2020), but Fulton will not be ar-

gued until next fall. Unless the Justices overrule or modify

Smith, we must implement its approach.

Congress established rules more favorable to religion

through the Religious Freedom Restoration Act, 42 U.S.C.

§§ 2000bb to 2000bb–4, but Boerne v. Flores, 521 U.S. 507

(1997), holds that those rules cannot be applied to the states.

Illinois has itself created rules more favorable to religion

through the Illinois Religious Freedom Restoration Act, 775

ILCS 35/1 to 35/30, and plaintiffs want to take advantage of

that statute. Given the Eleventh Amendment and principles

of sovereign immunity, however, a federal court cannot is-

sue relief against a state under state law. See, e.g., Pennhurst

8 No. 20-1811

State School & Hospital v. Halderman, 465 U.S. 89 (1984). Plain-

tiffs maintain that Pennhurst is irrelevant because Illinois has

consented to the enforcement of the Illinois Religious Free-

dom Restoration Act, thus waiving its sovereign immunity.

Consent to be sued in state court does not imply consent to

be sued in federal court, however; that takes a “clear declara-

tion”. See, e.g., College Savings Bank v. Florida Prepaid Postsec-

ondary Education Expense Board, 527 U.S. 666, 676 (1999) (cit-

ing other cases). Section 35/20 provides:

If a person’s exercise of religion has been burdened in violation

of this Act, that person may assert that violation as a claim or de-

fense in a judicial proceeding and may obtain appropriate relief

against a government. A party who prevails in an action to en-

force this Act against a government is entitled to recover aaor-

ney’s fees and costs incurred in maintaining the claim or de-

fense.

See also §35/10(b)(2). This language authorizes judicial relief

but does not clearly authorize suit against the state in federal

court. As a result, neither the federal nor the state Religious

Freedom Restoration Act can be applied in this case.

The vital question therefore is whether Executive Order

2020-32 discriminates against religion. Funerals, weddings,

and similar activities are subject to the same size limit that

applies to worship services. Illinois did not set out to disad-

vantage religious services compared with secular events.

Nor does the order discriminate among faiths. Cf. Church of

the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).

Plaintiffs maintain, however, that the ten-person cap dis-

favors religious services compared with, say, grocery shop-

ping (more than ten people at a time may be in a store) or

warehouses (where a substantial staff may congregate to

prepare and deliver the goods that retail shops sell). If those

No. 20-1811 9

businesses, and other essential functions such as feeding and

housing the poor under §2(12)(c), may place ten unrelated

persons in close contact, it amounts to disparate treatment

that a religious service cannot do so as well.

For its part, Illinois reminds us how Executive Order

2020-32 §2(3) itself classifies religious worship: with other

indoor public gatherings of unrelated persons. At least wor-

ship services can proceed (with a size limit), while concerts,

movies, and similar events are forbidden.

So what is the right comparison group: grocery shop-

ping, warehouses, and soup kitchens, as plaintiffs contend,

or concerts and lectures, as Illinois maintains? Judges of oth-

er appellate courts have supported both comparisons. Plain-

tiffs point us to two opinions of the Sixth Circuit plus two

opinions dissenting from orders denying injunctions pend-

ing appeal. See Maryville Baptist Church, Inc. v. Beshear, 957

F.3d 610 (6th Cir. 2020); Roberts v. Neace, 958 F.3d 409 (6th

Cir. 2020); South Bay United Pentecostal Church v. Newsom,

2020 U.S. App. LEXIS 16464 (9th Cir. May 22, 2020) (Collins,

J., dissenting); South Bay United Pentecostal Church v. Newsom,

No. 19A1044 (U.S. May 29, 2020) (Kavanaugh, J., joined by

Thomas & Gorsuch, JJ., dissenting). Illinois relies on the ma-

jorities in South Bay United Pentecostal Church: the Ninth Cir-

cuit’s panel did not provide much analysis when denying

the motion for an injunction, nor did a majority of the Su-

preme Court, but Chief Justice Roberts filed a concurring

opinion with these observations:

Although California’s guidelines place restrictions on places of

worship, … [s]imilar or more severe restrictions apply to compa-

rable secular gatherings, including lectures, concerts, movie

showings, spectator sports, and theatrical performances, where

large groups of people gather in close proximity for extended

10 No. 20-1811

periods of time. And the Order exempts or treats more leniently

only dissimilar activities, such as operating grocery stores,

banks, and laundromats, in which people neither congregate in

large groups nor remain in close proximity for extended periods.

We line up with Chief Justice Roberts.

It would be foolish to pretend that worship services are

exactly like any of the possible comparisons, but they seem

most like other congregate functions that occur in auditori-

ums, such as concerts and movies. Any of these indoor activ-

ities puts members of multiple families close to one another

for extended periods, while invisible droplets containing the

virus may linger in the air. Functions that include speaking

and singing by the audience increase the chance that persons

with COVID-19 may transmit the virus through the droplets

that speech or song inevitably produce. As Chief Justice

Roberts observed, concerts and church services differ from

grocery stores and pharmacies, “in which people neither

congregate in large groups nor remain in close proximity for

extended periods.”

The churches reply that people do remain together for ex-

tended periods in warehouses, and potentially in office

seaings (though most offices contain spaces that provide so-

cial distancing). It is not clear to us that warehouse workers

engage in the sort of speech or singing that elevates the risk

of transmiaing the virus, or that they remain close to one

another for extended periods, but some workplaces present

both risks. Meatpacking plants and nursing homes come to

mind, and they have been centers of COVID-19 outbreaks.

But it is hard to see how food production, care for the elder-

ly, or the distribution of vital goods through warehouses

could be halted.

No. 20-1811 11

Reducing the rate of transmission would not be much

use if people starved or could not get medicine. That’s also

why soup kitchens and housing for the homeless have been

treated as essential. Those activities must be carried on in

person, while concerts can be replaced by recorded music,

movie-going by streaming video, and large in-person wor-

ship services by smaller gatherings, radio and TV worship

services, drive-in worship services, and the Internet. Feeding

the body requires teams of people to work together in physi-

cal spaces, but churches can feed the spirit in other ways.

Perhaps a state could differentiate between the maximum

gathering permiaed in a small church and a cathedral with

seats for 3,000, but we do not evaluate orders issued in re-

sponse to public-health emergencies by the standard that

might be appropriate for years-long notice-and-comment

rulemaking. See Jacobson v. Massachuse<s, 197 U.S. 11 (1905),

which sustains a public-health order against a constitutional

challenge. Perhaps with more time—and more data from

contact tracing—Illinois could figure out just how dangerous

religious services are compared with warehouses and similar

activities, but no one contends that such data were available

when Executive Order 2020-32 was promulgated (or, for that

maaer, now).

So we do not deny that warehouse workers and people

who assist the poor or elderly may be at much the same risk

as people who gather for large, in-person religious worship.

Still, movies and concerts seem a beaer comparison group,

and by that standard the discrimination has been in favor of

religion. While all theaters and concert halls in Illinois have

been closed since mid-March, sanctuaries and other houses

of worship were open, though to smaller gatherings. And

12 No. 20-1811

under Executive Order 2020-38 all arrangements for worship

are permiaed while schools, theaters, and auditoriums re-

main closed. Illinois has not discriminated against religion

and so has not violated the First Amendment, as Smith un-

derstands the constitutional requirements.

Plaintiffs present some additional arguments, which have

been considered but need not be discussed separately.

AFFIRMED