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In the United States District Court for the Northern District of Illinois Eastern Division

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In the United States District Court for the Northern District of Illinois Eastern Division Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 1 of 44 PageID #:349 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ELIM ROMANIAN PENTECOSTAL CHURCH and LOGOS BAPTIST MINISTRIES, No. 20-C-02782 Honorable Plaintiffs, Steven C. Seeger Honorable Robert W. Gettleman v. GOVERNOR JB PRITZKER, Defendant. THE GOVERNOR’S OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Dated: May 9, 2020 KWAME RAOUL Attorney General of Illinois Christopher G. Wells R. Douglas Rees Sarah H. Newman Kelly C. Bauer Hal Dworkin Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601 Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 2 of 44 PageID #:350 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 LEGAL STANDARD ..................................................................................................................... 7 ARGUMENT .................................................................................................................................. 9 I. Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims...................................... 9 A. The Current Executive Order is a Constitutional Exercise of the Governor’s Emergency Powers to Combat the COVID-19 Pandemic. ........................................... 10 B. Plaintiffs’ Free Exercise Claims Fail. ........................................................................... 17 1. The Current Executive Order is a Valid Content Neutral Law of General Applicability. ........................................................................................................... 18 2. The Current Executive Order is not Unduly Burdensome on Plaintiffs’ Religious Practices. ................................................................................................................. 24 3. The Current Executive Order Satisfies Strict Scrutiny. .......................................... 24 C. Plaintiffs’ Establishment Clause Claim Fails. ............................................................... 28 D. Plaintiffs’ Free Speech and Assembly Claims Fail. ...................................................... 30 1. The Current Executive Order is a Reasonable Time, Place, and Manner Regulation that Does Not Violate the First Amendment. .......................................................... 31 2. The Current Executive Order is Not a Prior Restraint. ........................................... 34 3. The Governor’s Current Executive Order Does Not Give the Governor Standard- less Discretion. ........................................................................................................ 35 E. Plaintiffs’ State Law Claim Against the Governor in His Official Capacity is Barred by Eleventh Amendment Sovereign Immunity. ................................................................. 35 II. Plaintiffs Have Not Demonstrated Irreparable Harm to Warrant a TRO or Preliminary Injunction. .......................................................................................................................... 39 III. The Harm to the State and the Public from a TRO Substantially Outweighs any Interim Harm to Plaintiffs Absent a TRO. ..................................................................................... 40 CONCLUSION ............................................................................................................................. 42 Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 3 of 44 PageID #:351 INTRODUCTION During the unprecedented public health threat posed by the COVID-19 pandemic, Plaintiffs in this case ask for extraordinary injunctive relief that would put them and their communities at great risk by exempting them from critical public health measures. Just last week, another judge in this district rejected a nearly-identical challenge to these measures, explaining that when “[t]aking into account COVID-19’s virulence and lethality, together with the State’s efforts to protect avenues for religious activity,” the public interest weighed heavily against providing the same relief Plaintiffs seek here. This Court should reach the same result and deny Plaintiffs’ motion for a temporary restraining order and preliminary injunction. Last Sunday, May 3, 2020, Judge John Z. Lee rejected a request for emergency injunctive relief by a pastor and his Lena, Illinois church challenging the Governor’s effort to prevent the spread of COVID-19 through Executive Order 2020-32. Cassell et al. v. Snyder et al., No. 20 C 50153, ECF No. 39 (May 3, 2020 Mem. Op., “Cassell Opinion).1 Executive Order 2020-32 is the current version of the so-called “stay-at-home” order (“Current Executive Order. The plaintiffs in Cassell sought to invalidate the Current Executive Order and its predecessors on First Amendment grounds because it temporarily restricts their ability to have in-person worship services with more than 10 people due to the well-established risk of COVID-19 transmission at large gatherings. Judge Lee concluded, however, that the plaintiffs had a “less than negligible chance of prevailing” on their core claim that the Current Executive Order violates their right to free exercise of religion. Cassell Opinion, at 16. Applying Supreme Court precedent from Jacobson 1 The Cassell Opinion is accessible on this Court’s ECF system and through Westlaw at Cassell v. Snyders, No. 20 C 50152, 2020 WL 2112374 (N.D. Ill. May 3, 2020). 1 Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 4 of 44 PageID #:352 v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), as well as Employment Division v. Smith, 494 U.S. 872 (1990), and Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), Judge Lee concluded that the Current Executive Order: (i) imposes reasonable restrictions related to combatting the current public health emergency posed by COVID-19, Cassell Opinion, at 14–l6 (applying Jacobson); and (ii) alternatively, that it is a neutral law of general applicability that easily survives rational basis scrutiny, Cassell Opinion, at 17–26 (applying Smith and Lukumi). Judge Lee also found no reasonable likelihood of success on the other claims on which the plaintiffs sought emergency injunctive relief, including their claim under Illinois’ Religious Freedom Restoration Act (“RFRA”), 775 ILCS 35/15. See Cassell Opinion, at 28–31. Judge Lee also concluded that the balance of harms “weigh[ed] heavily against” granting emergency injunctive relief in light of the ongoing COVID-19 pandemic. Cassell Opinion, at 36. In doing so, he pointed to the risk inherent in mass gatherings, including large worship services, and highlighted multiple examples of large COVID-19 outbreaks traceable to these types of events. Id. at 22, 35. Plaintiffs in this case, two churches located in Chicago and Niles, Illinois, ask this Court to disregard Judge Lee’s ruling and grant them emergency injunctive relief so they can congregate immediately without regard to the 10-person limit, despite the ongoing COVID-19 pandemic. There is no reason to do so. Plaintiffs point to no new precedent indicating that Judge Lee’s ruling upholding the Current Executive Order was erroneous. Instead, Plaintiffs repeatedly point to a Kentucky district court decision and a Sixth Circuit decision they say requires a different result, but Judge Lee considered both of those cases. Compare ECF No. 5, at 2, 3, 4, 6, 7, 8, 9, 11, 19, 21, 26, 28, 29, 30 (citing On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-cv-264-JRW, 2020 WL 1820249 2 Case: 1:20-cv-02782 Document #: 21 Filed: 05/09/20 Page 5 of 44 PageID #:353 (W.D. Ky. Apr. 11, 2020), and Maryville Baptist Church, Inc. v. Beshear, -- F.3d --, No. 20- 5427, 2020 WL 2111316 (6th Cir. May 2, 2020)), with Cassell Opinion, at 25–26. In analyzing the Maryville Baptist decision, Judge Lee concluded that “the Sixth Circuit’s reasoning counsels in favor of upholding Governor Pritzker’s Order.” Cassell Opinion, at 25. The Sixth Circuit faulted the executive order at issue in Maryville Baptist because it did not permit drive-in worship services—which, as Judge Lee recognized, the Current Executive Order allows—and because it banned in-person worship services altogether, no matter the number of attendees. Maryville Baptist, 2020 WL 2111316 , at *1, *4. In discussing the ban on in-person worship services, the Sixth Circuit stated that “[i]f the problem is numbers, and risks that grow with great numbers, there is a straightforward remedy: limit the number of people who can attend a service at one time.” Id. at *4. But as Judge Lee observed: “That is exactly what Governor Pritzker’s latest order does” in permitting worship services with no more than 10 people.2 Cassell Opinion, at 26. Judge Lee also distinguished the Kentucky district court’s decision in On Fire because that case involved a ban on drive-in worship services, which, again, are permitted by the Current Executive Order. Cassell Opinion, at 25 n.6. Plaintiffs’ other principal case, First Baptist v. Kelly, No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020) (cited at ECF No. 5, at 2, 3, 8, 12, 14, 27), was also considered and distinguished by Judge Lee. Cassell Opinion, at 23–25. The problem identified by the First Baptist court was that the Kansas governor’s COVID-19 executive order banned mass gatherings 2 Another Kentucky district court ruled on May 8, 2020,
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