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Wednesday, September 9, 2020

7th Circuit Upholds Illinois' Gathering Restrictions

There have been a number of legal challenges to Governor Pritzker's COVID-19 related executive orders, many of which we have reported about on Municipal Minute. Recently, one of those challenges made its way to the 7th Circuit Court of Appeals (a federal appeals court). In Republican Party of Illinois v. Pritzker, the 7th Circuit upheld Governor Pritzker's restrictions on gatherings against a challenge that the gathering restrictions were unconstitutional because they favored the free exercise of religion over political speech.

The Republican Party argued that the Governor's gathering restrictions in various executive orders are illegal because they allow larger groups of people to gather in a church, mosque, or synagogue to worship, but the same number of people are not allowed to gather to discuss the upcoming presidential election. The Party claimed that this distinction is unconstitutional under the U.S. Supreme Court's ruling in Reed v. Gilbert (a case involving a challenge to a municipality's temporary sign regulations). The Court rejected the Party's argument, finding that the issue raised in Reed was focused on an alleged disadvantage to religious institutions and not the lifting of a burden from religious practice. The Court emphasized the special treatment given in the First Amendment to the free exercise of religion, which the Court distinguished from free speech. 

In ruling in favor of the Governor, the Court stressed that its ruling does not mean that religious institutions can do whatever they want. The Court provided specific examples (such as a Labor Day picnic, night at the movies event, or battle of the bands), which would be subject to the 50 person gathering restriction that applies to similar events hosted by non-religious groups. In other words, the special treatment provided to religious institutions under the executive orders should be limited to "free exercise of religion." As a result, the 7th Circuit rejected the Party's argument that the free exercise of religion must be treated the same as political speech with respect to limits on gatherings. The Court held that the free exercise of religion "enjoys express constitutional protection, and the Governor was entitled to carve out some room for religion, even while he declined to do so for other activities." 

The Court also rejected the Party's argument that the Governor is implicitly favoring Black Lives Matter protests by not enforcing the 50 perrson gathering restrictions on these protests. The Court found no evidence of that, but did caution the Governor that the Court would likely take issue with any preference for messaging of one type of event over another.


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