No. 20A______
IN THE
___________

ILLINOIS REPUBLICAN PARTY,
WILL COUNTY REPUBLICAN CENTRAL COMMITTEE,
SCHAUMBERG TOWNSHIP REPUBLICAN ORGANIZATION,
AND NORTHWEST SIDE GOP CLUB
APPLICANTS,

V.

J.B. PRITZKER, GOVERNOR OF ILLINOIS,
RESPONDENT.
___________

To the Honorable Brett M. Kavanaugh, Associate Justice
and Circuit Justice for the Seventh Circuit
__________
EMERGENCY APPLICATION FOR WRIT OF INJUNCTION
RELIEF REQUESTED BY 5:00PM CST ON JULY 4, 2020
__________

Daniel R. Suhr
Counsel of Record
Jeffrey M. Schwab
LIBERTY JUSTICE CENTER
190 LaSalle St., Ste. 1500
Chicago, IL 60603
(312) 263-7668
dsuhr@libertyjusticecenter.org
jschwab@libertyjusticecenter.org
July 3, 2020

 i
QUESTION PRESENTED
Does the Governor of Illinois, who permits gatherings of 50 or more for religious
speech or certain protestors’ speech, violate the First Amendment by prohibiting such
gatherings for political parties’ speech?
PARTIES AND DISCLOSURE STATEMENT
The applicants are the Illinois Republican Party, Will County Republican Central
Committee, Schaumberg Township Republican Organization, and Northwest Side
GOP Club. The Illinois Republican Party is a nonstock, nonprofit corporation registered in Illinois. The other plaintiffs are unincorporated associations.
The respondent is J.B. Pritzker, who is sued in his official capacity as governor of
the State of Illinois.
DECISIONS BELOW
The District Court’s opinion and order denying Applicants’ request for a preliminary injunction is attached as Exhibit A to this Application (No. 1:20-cv-03489, Northern District of Illinois, Hon. Sara L. Ellis). The District Court’s minute order denying
their motion for an injunction pending appeal is attached as Exhibit B. The U.S.
Court of Appeals for the Seventh Circuit denied Applicants’ motion for an injunction
pending appeal (No. 20-2175); its order is Exhibit C.

 ii
JURISDICTION
Applicants have a pending interlocutory appeal in the U.S. Court of Appeals for
the Seventh Circuit. This Court has jurisdiction under 28 U.S.C. § 1651.

 iii

TABLE OF CONTENTS
QUESTION PRESENTED .......................................................................................... i
PARTIES & DISCLOSURE STATEMENT .............................................................. i
DECISIONS BELOW ................................................................................................... i
JURISDICTION ......................................................................................................... ii
TABLE OF CONTENTS ........................................................................................... iii
TABLE OF AUTHORITIES ...................................................................................... iv
APPLICATION ............................................................................................................ 1
FACTUAL AND PROCEDURAL BACKGROUND ................................................ 2
A. Governor Pritzker has pursued an evolving response to COVID-19...................... 2
B. Governor Pritzker has explicitly extended special treatment recognizing the First
Amendment rights of Black Lives Matter protestors. ................................................. 5
C. Applicants are political party organizations seeking to gather in-person in the
months leading up to November's presidential election .............................................. 8
D. The Applicants look to this Court for protection pending appeal ........................ 10
STANDARD OF REVIEW & STATEMENT OF EXIGENCY ............................. 10
ARGUMENT ............................................................................................................... 12
I. In a pandemic, the government has great discretion to make medical and scientific
judgments. But it does not have carte blanche to discriminate among speakers on a
non-medical basis. ....................................................................................................... 12
II. The Applicants have an indisputable right to fair and equal treatment under the
First Amendment ......................................................................................................... 16
III. Narrow tailoring requires similar treatment for similar speakers, and houses of
worship and political parties are similar speakers. .................................................. 17
IV. The Governor may not extend special treatment to Black Lives Matters' protest
speech while denying it to similar speakers. ............................................................. 21
V. The balance of harms is no reason to deny an injunction. .................................... 24
CONCLUSION ........................................................................................................... 26

 iv
TABLE OF AUTHORITIES
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,
564 U.S. 721 (2011) .................................................................................................. 21
Bd. of Airport Comm’rs v. Jews for Jesus,
482 U.S. 569 (1987) .................................................................................................. 18
Borough of Duryea, Pa. v. Guarnieri,
564 U.S. 379 (2011) .................................................................................................. 20
Bowen v. Roy,
476 U.S. 693 (1986) .................................................................................................. 19
Brown v. Entertainment Merchants Ass’n,
564 U.S. 786 (2011) .................................................................................................. 20
Citizens United v. F.E.C.,
558 U.S. 310 (2010) .............................................................................................. 2, 16
Communist Party of U.S. v. United States,
384 F.2d 957 (D.C. Cir. 1967) .................................................................................. 17
Correa-Martinez v. Arrillaga-Belendez,
903 F.2d 49 (1st Cir. 1990) ...................................................................................... 17
Cousins v. Wigoda,
419 U.S. 477 (1975) .................................................................................................. 20
Democratic Party of U.S. v. Wisconsin ex rel. La Follette,
450 U.S. 107 (1981) .................................................................................................. 20
Elim Romanian Pentecostal Church v. Pritzker,
2020 U.S. App. LEXIS 18862 (7th Cir. June 16, 2020) .................................. passim
Elrod v. Burns,
427 U.S. 347 (1976) .................................................................................................. 11
Eu v. San Francisco County Democratic Central Comm.,
489 U.S. 214 (1989) .................................................................................................. 20

 v
First Pentecostal Church v. City of Holly Springs,
959 F.3d 669 (5th Cir. 2020) ...................................................................................... 1
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,
565 U.S. 171 (2012) ............................................................................................ 18, 20
IDK, Inc. v. Cty. of Clark,
836 F.2d 1185 (9th Cir. 1988) .................................................................................. 17
Jacobson v. Massachusetts,
197 U. S. 11 (1905) ................................................................................................... 13
McIntyre v. Ohio Elections Comm’n,
514 U.S. 334 (1995) .................................................................................................. 21
Merrill v. People First of Alabama,
No. 19A1063 (U.S. July 2, 2020) ............................................................................. 15
Mills v. Alabama,
384 U.S. 214 (1966) .................................................................................................. 21
Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue,
460 U.S. 575 (1983) .................................................................................................. 16
Mitchell v. Helms,
530 U.S. 973 (2000) .................................................................................................. 19
Morse v. Frederick,
551 U.S. 393 (2007) .................................................................................................. 21
N.A.A.C.P. v. Claiborne Hardware Co.,
458 U.S. 886 (1982) .................................................................................................. 21
Nixon v. Shrink Missouri Government PAC,
528 U.S. 377 (2000) .................................................................................................. 21
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37 (1983) .................................................................................................... 17
Police Department of Chicago v. Mosley,
408 U.S. 92 (1972) .................................................................................................... 16

 vi
Proft v. Raoul,
944 F.3d 686 (7th Cir. 2019) .................................................................................... 16
Reed v. Town of Gilbert,
576 U.S. 155 (2015) .......................................................................................... passim
Republican Party of Minnesota v. White,
536 U.S. 765 (2002) .................................................................................................. 25
Roberts v. Neace,
958 F.3d 409 (6th Cir. 2020) .......................................................................... 1, 17, 26
Rosenberger v. Rector & Visitors of the Univ. of Va.,
515 U.S. 819 (1995) .................................................................................................. 16
Soos v. Cuomo,
1:20-cv-00651-GLS-DJS (N.D.N.Y. June 26, 2020) ................................................ 24
S. Bay United Pentecostal Church v. Newsom,
207 L.Ed.2d 154 (U.S. 2020) ............................................................................ passim
Southworth v. Bd. of Regents of Univ. of Wis.,
307 F.3d 566 (7th Cir. 2002) .................................................................................... 16
Spell v. Edwards,
No. 20-30358, 2020 U.S. App. LEXIS 19148 (5th Cir. June 18, 2020) .................. 26
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) .................................................................................................. 23
Trump v. Hawaii,
138 S. Ct. 2392 (2018) .............................................................................................. 15
Turner Broad. Sys., Inc. v. F.C.C.,
512 U.S. 622 (1994) .................................................................................................. 16
Timmons v. Twin Cities Area New Party,
520 U.S. 351 (1997) .................................................................................................. 20
Virginia v. Black,
528 U.S. 343 (2003) .................................................................................................. 21

 1
APPLICATION
To the Honorable Brett M. Kavanaugh, Associate Justice
of the United States Supreme Court and Circuit Justice
for the Seventh Circuit:
Thus far, cases nationwide challenging COVID-19 restrictions on gatherings have
turned on arguments about whether churches and retailers are apples-to-oranges
comparisons or not. Compare S. Bay United Pentecostal Church v. Newsom, 207
L.Ed.2d 154, 155 (U.S. 2020) (Roberts, C.J., concurring); Elim Romanian Pentecostal
Church v. Pritzker, 2020 U.S. App. LEXIS 18862, at *13 (7th Cir. June 16, 2020) (rejecting the comparison) with S. Bay United Pentecostal Church, 207 L.Ed.2d at 15556 (Kavanaugh, J., dissenting); Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020);
First Pentecostal Church v. City of Holly Springs, 959 F.3d 669, 671 (5th Cir. 2020)
(Willet, J., concurring) (accepting the comparison).
This is the first case to clearly compare apples to apples: churches to political parties, Black Lives Matter rallies to Republican rallies. This is so because Illinois Governor J.B. Pritzker’s policy bans gatherings of 50 or more people, unless you fall in
one of his designated carve-outs for religious or Black Lives Matter speech. Because
the State’s treatment of a gathering turns on the content of the speech delivered at
the event, this classification is subject to strict scrutiny. Reed v. Town of Gilbert, 576
U.S. 155 (2015).

 2
Though fighting COVID-19 is doubtless a compelling state interest, the Governor’s
policy fails narrow tailoring because it treats similarly situated speakers differently.
The First and Fourteenth Amendments both guarantee equal treatment of similar
speakers. Government may no more favor one particular speaker or category of
speech than it may target one for disfavor. Citizens United v. F.E.C., 558 U.S. 310,
340 (2010) (the First Amendment “[p]rohibit[s . . .] restrictions distinguishing among
different speakers, allowing speech by some but not others.”). Yet that is what the
Governor does with a policy that bans gatherings, but extends a de jure exemption to
religious speakers and an ex cathedra exemption to Black Lives Matter speakers.
Applicants are political parties whose speech is just as much at the heart of the
First Amendment as religious speakers and protestors. They want to gather in groups
of 50 or more for rallies, fundraisers, and caucuses in the months leading up to the
2020 presidential election, and they wish to do so while observing both the law and
appropriate safety precautions. Because the Governor’s order prevents them from doing so, they make this Application for an injunction pending appeal to secure equal
treatment when exercising their First Amendment rights.
FACTUAL AND PROCEDURAL BACKGROUND
A. Governor Pritzker has pursued an evolving response to COVID-19.
The COVID-19 epidemic is a serious situation that is challenging multiple institutions and systems across our country. In response to this crisis, Illinois Governor

 3
J.B. Pritzker has issued a series of executive orders under his emergency powers. The
first such order, issued March 13, 2020, banned all gatherings over 1,000.1 Three days
later, a new order lowered the ban on gatherings to 50, including “civic” and “faithbased events.”2 Four days after that, the cap on gatherings was lowered to ten.3 This
order also contained not only a prohibition but a hammer: “This Executive Order may
be enforced by State and local law enforcement.”4 There the limit on gatherings
stayed until just last week, when on June 26, the state’s entry into Phase 4 lifted the
cap on gatherings up to 50.5 There it is expected to remain for quite a while, as the
Governor’s plan for entry into Phase 5 requires the advent of a vaccine or other medical advance that could take years.6

Executive Order 2020-04, https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-04.aspx.

1

Executive Order 2020-07, https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-07.aspx.

2

Executive Order 2020-10, https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-10.aspx.

3

4

Id. at Sec. 17.

Executive Order 2020-44, https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-43.aspx.

5

“What Is Phase 5 and When Might We Get There?,” NBC-5 (June 24, 2020),
https://www.nbcchicago.com/news/local/what-is-phase-5-and-when-might-we-getthere/2294882/; Nsikan Akpan, “Why a coronavirus vaccine could take way longer
than a year,” NAT. GEO. (April 2020), https://www.nationalgeographic.com/science/2020/04/why-coronavirus-vaccine-could-take-way-longer-than-a-year/.

6

 4
As weeks dragged into months of people frozen in their homes, a public outcry
developed for a restoration of basic First Amendment rights, leading to litigation like
South Bay United Pentecostal Church and Elim Romanian Pentecostal Church. As
the complaints and opinions flew back and forth, and as pressure from church leaders
and the general public grew louder and more insistent7, Governor Pritzker started to
cave. On April 30, for the first time his new executive order said “to engage in the free
exercise of religion” was an “essential activity,” as long as the limit of ten was observed.8 Then on May 13 the Cardinal Archbishop of Chicago announced that the
Catholic Church had reached a concordat with the Governor permitting the phased
resumption of Masses and other services.9
On May 29, the Governor issued Executive Order 38, which continued the 10-person limit on gatherings, but added “free exercise of religion” alongside “emergency
functions” and “governmental functions” as the three recognized exemptions to the
Order.10 Religious organizations and houses of worships are “encouraged” to “consult”

See, e.g., John Kass, “Is Pritzker’s coronavirus levee about to break?,” CHI. TRIB.
(May 21, 2020), https://www.chicagotribune.com/columns/john-kass/ct-coronavirusillinois-churches-kass-20200521-o2pk6tvcprhwvblo5mvfntuwoa-story.html.

7

Executive Order 2020032, https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-32.aspx.

8

See “Letter from Cardinal Cupich,” Archdiocese of Chicago (May 13, 2020),
https://www.archchicago.org/coronavirus/reopening.

9

10

https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-38.aspx.

 5
the “recommended” “guidelines” and “encouraged to take steps” to follow social distancing, but are not required to obey any part of the Order.11 “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.” Elim Romanian Pentecostal Church, 2020 U.S. App. LEXIS 18862 at *8.
When Illinois entered Phase 4 on June 26, the cap on gatherings was lifted to 50,
and the special exemption for religious gatherings remained in place.12
B. Governor Pritzker has explicitly extended special treatment recognizing the First Amendment rights of Black Lives Matter protestors.
On May 25, 2020, George Floyd was killed by a Minneapolis police officer. Communities across the country rose up in righteous indignation, and took to the streets.
Governor Pritzker, like many elected officials, faced an unexpected choice: vocally
and visibly side with the protestors, even amidst the pandemic; express sympathy
but still deploy the police to shut down the protests in the name of public health; or
do nothing, and forbear enforcement of the ban on gatherings as a tactical decision to
prevent situations from spinning out of control. Governor Pritzker went all-chips-in
on option 1. In an official press release, in official press conferences, and in an official

11

Id. at 4.a.

Executive Order 44, https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-44.aspx.

12

 6
event arranged by his official office, the Governor chose to recognize the protests as
legitimate, protected “First Amendment” activity.13
In fact, the Governor indicated his respect for the choice protestors were making
to speak up and assemble even during a pandemic, saying: “It’s not lost on me that
the peaceful protesters who have been out the last few days weighed the risks of the
pandemic against coming out to speak the truth. I see you. I hear you. I understand
why you made the choice you made.”14 When he joined in one of the protests himself,
he defended doing so amidst a pandemic by saying, “Especially at this moment, it’s

Cole Lauterbach, “Pritzker stresses National Guard in Chicago is only ‘support’
for police,” TheCenterSquare.com (May 31, 2020), thecentersquare.com/illinois/pritzker-stresses-national-guard-in-chicago-is-only-support-for-police/article_8590229a-a38e-11ea-955c-f3536e04f622.html; Mike Nolan, “Gov. Pritzker
marches with hundreds in Matteson, demanding racial equality,” CHI. TRIB. (June
9, 2020), https://www.chicagotribune.com/suburbs/daily-southtown/ct-sta-mattesonmarch-pritzker-st-0610-20200609-dig6tag4bzezhnoftw537hxxde-story.html; “Pritzker Activates Additional National Guard Members, ISP Troopers to Aid Local Law
Enforcement,” NBC-5 (June 1, 2020), https://www.nbcchicago.com/news/local/pritzker-activates-additional-national-guard-members-isp-troopers-to-aid-local-law-enforcement/2282229/.

13

“National Guard will be in Chicago to support police, protect First Amendment
rights, mayor says,” Fox-32 (June 1, 2020), https://www.fox32chicago.com/news/national-guard-will-be-in-chicago-to-support-police-protect-first-amendment-rightsmayor-says.

14

 7
important to express ourselves. It’s important to stand up for people’s First Amendment rights, and I’m talking about the peaceful protesters across the state. It’s important to have the governor stand with them . . .”15
Not all gatherings or protests have received such gubernatorial patronage. According to one news report, “From March 25 to May 1, Chicago police reported nearly
6,000 dispersals, 18 arrests and 13 citations. Large gatherings or events may result
in city fines of up to $5,000.”16 Specific to political protests, though some “Reopen
Illinois” protests have been permitted to proceed while police stood by, others have
been busted up by law enforcement.17 When Chicago police ended a “Reopen” protest
several weeks ago, Mayor Lori Lightfoot tweeted, “[W]hile we respect 1st amendment

Rick Pearson, “Republicans rip Pritzker as social distancing hypocrite as he joins
protests; he hits back on Trump conspiracy tweet,” CHI. TRIB. (June 9, 2020),
https://www.chicagotribune.com/politics/ct-coronavirus-pritzker-trump-protestsgeorge-floyd-congress-20200609-bifn4ekl6bewdhxtujmdplkfpa-story.html.

15

Judy Wang, “Chicago police break up weekend crowds defying Illinois stay-athome order,” WGN-9 (May 4, 2020), https://wgntv.com/news/chicago-news/chicagopolice-break-up-weekend-crowds-defying-illinois-stay-at-home-order/.

16

Compare Sam Charles and Neal Earley, “Reopen Illinois rally draws hundreds to
Loop, Springfield,” CHI. SUN-TIMES (May 1, 2020), https://chicago.suntimes.com/politics/2020/5/1/21244518/reopen-illinois-rally-thompson-center-coronavirus-covid-19stay-at-home-order, with “Police Break Up Rally Protesting Stay-At-Home Order At
Buckingham Fountain,” CBS-2 (May 25, 2020), https://chicago.cbslocal.com/2020/05/25/police-break-up-rally-protesting-stay-at-home-order-at-buckingham-fountain/.

17

 8
rights, this gathering posed an unacceptable health risk and was dispersed. No matter where in the city you live, no one is exempt from @GovPritzker’s stay-at-home
order.”18
C. Applicants are political party organizations seeking to gather in-person in the months leading up to November’s presidential election.
Plaintiffs are Republican Party organizations that wish to exercise their First
Amendment rights to speak about politics in the months leading up to the presidential election this coming November.19 They seek to elect Republican candidates to
local, state, and federal office and to advocate for their policy platform.
In-person gatherings are foundational to the Party’s activities. The Party’s grassroots activists meet for caucuses and conventions to conduct the business of the party,
elect officers, adopt platforms, and allocate resources. The Party’s candidates speak,
work a rope-line, and interact with voters through rallies and community events,
which also draw substantial media coverage that permits the Party to amplify its
message without paying for advertising. The Party raises funds through receptions,

@ChicagosMayor, https://twitter.com/chicagosmayor/status/1265005179201601536?lang=en (May 25, 2020).

18

All the following facts are taken from declarations entered in the District Court
by the chairmen of the four plaintiff Republican organizations. See Docket 3-2 (Declaration of Joe Folisi, Schaumburg Township Republican Organization); 3-3 (Declaration of George Pearson, Will County Republican Central Committee); 3-4 (Declaration of Matt Podgorski, Northwest Side GOP Club); 3-5 (Declaration of Timothy
Schneider, Illinois Republican Party). None of the facts asserted in these affidavits
were disputed below. See Fed. R. App. Pro. 8(a)(2)(B)(ii).

19

 9
luncheons, and house parties. The Party reaches undecided voters and turns out its
own voters through phone banks, door-to-door canvassing, and other assemblies of
volunteers. Many of these activities are not possible or not as effective when done
through online alternatives. Many can be undertaken with proper precautions in
place, such as encouraging masks, spacing seating or tables at least 6 feet apart, frequent sanitizing, and providing hand sanitizer.
The months leading up to a presidential election are the busiest and most important for the Party. During this time, it organizes its staff, volunteers, voters, and
donors to maximum effect. It undertakes numerous meetings and public events, including rallies, bus tours, training sessions, phone banks, fundraising receptions,
press conferences, headquarters ribbon-cuttings and meet-and-greet coffees. In-person interaction is vital to ensuring the full effectiveness of these events.
Though many of these activities are organized at the state level, just as many if
not more happen through the spontaneous organizing and energy of grassroots Republicans through their local units. Of most immediate concern in this emergency
motion, the Will County Republicans are planning a July 4 celebration with picnic
food and fireworks (see Docket 3-3, ¶ 7). They want to hold the festivities on a farm
to allow plenty of room for people to spread out and maintain safe distances as they
watch the night sky light up and listen to speakers from their blankets and lawn
chairs.

 10
None of these activities are permitted under the Governor’s policy because they
do not fit in one of his carve-outs. All of them are subject to police enforcement. And
the only substantive difference between them and a religious service or a Black Lives
Matter rally is the content of the speech delivered at the event.
D. The Applicants look to this Court for protection pending appeal.
In order to secure equal treatment under law, the Plaintiffs filed a complaint
against the Governor in the Northern District of Illinois on June 15, 2020 (No. 1:20cv-03489, Docket 1). They simultaneously filed a motion for a temporary restraining
order and a preliminary injunction (Docket 3). The Court held a hearing on the motion
on June 29, and issued an opinion and order denying the motion on July 2 (Docket
16). The Court subsequently denied a motion for an injunction pending appeal
(Docket 18).
The Plaintiffs immediately filed a notice of interlocutory appeal to the U.S. Court
of Appeals for the Seventh Circuit (Docket 19). They also filed an emergency motion
for an injunction pending appeal (No. 20-2175, App. Docket 4). The next day, Friday,
July 3, a motions panel issued a brief order denying the request (App. Docket 5).
STANDARD OF REVIEW &
STATEMENT OF EXIGENCY
Recent events have rendered the standard of review for such applications familiar:
Applicants seek to enjoin enforcement of the Order. “Such a request demands
a significantly higher justification than a request for a stay because, unlike a
stay, an injunction does not simply suspend judicial alteration of the status

 11
quo but grants judicial intervention that has been withheld by lower courts.”
Respect Maine PAC v. McKee, 562 U. S. 996, 131 S. Ct. 445, 178 L. Ed. 2d 346
(2010) (internal quotation marks omitted). This power is used where “the legal rights at issue are indisputably clear” and, even then, “sparingly and only
in the most critical and exigent circumstances.” S. Shapiro, K. Geller, T.
Bishop, E. Hartnett & D. Himmelfarb, SUPREME COURT PRACTICE §17.4, p.
17-9 (11th ed. 2019) (internal quotation marks omitted) (collecting cases).
S. Bay United Pentecostal Church, 207 L.Ed.2d at 154 (Roberts, C.J., concurring).
This case is one where the law is clear and the timeliness is critical. It is blackletter law that the loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury for purposes of issuing an injunction.
Elrod v. Burns, 427 U.S. 347, 373 (1976)). That is especially so now for the Will
County Republicans, who want to hold a Fourth of July picnic the night of July 4,
2020. A picnic, even with fireworks, on some other day is no substitute for the special
patriotic environment created on the Fourth of July. See S. Bay United Pentecostal
Church, 207 L.Ed.2d at 156 (Kavanaugh, J., dissenting) (considering the need for
services on Pentecost Sunday).
Moving forward, these summer weeks leading into the November election are crucial for the Party to begin organizing, identifying voters, and sharing its message with
meetings, events, and assemblies of volunteers. Thus, even if the Court cannot act in
time to clarify that the Will County Republicans can go forward with their fireworks,
a decision as soon as practicable will protect all Applicants in the irreplaceable weeks
and months leading up to the election. Given the normal briefing schedule for the

 12
Seventh Circuit, the case will not be briefed, argued, and decided until after Election
Day, making certiorari practically useless. In other words, this Application is likely
this Court’s only opportunity to protect Applicants’ rights when it matters most.
These next five months are the most important out of the entire four-year electoral
cycle from the perspective of the Party, making immediate relief essential.
ARGUMENT
This case comes down to three questions, all of which have clear answers. First,
do the circumstances of a pandemic give government carte blanche to do whatever it
will, including imposing unequal treatment on similarly situated persons and speakers? Second, are religious organizations and political parties similarly situated speakers? Third, does the government’s special treatment of the Black Lives Matter protestors entitle other political speakers to equal treatment?
I.

In a pandemic, the government has great discretion to make medical and scientific judgments. But it does not have carte blanche to
discriminate among speakers on a non-medical basis.

We are all worried about COVID-19. This Application comes at an especially precarious moment, as we see a second spike in some states. When this case was filed
nearly three weeks ago, the trend lines were headed down and we were on the cusp
of Phase 4. Now the indicators are headed back up. Government has great discretion
“while local officials are actively shaping their response to changing facts on the

 13
ground.” S. Bay United Pentecostal Church, 207 L.Ed.2d at 155 (Roberts, C.J., concurring). When events are moving fast, government officials enjoy broad latitude “in
areas fraught with medical and scientific uncertainties.” Id. (quoting Jacobson v.
Massachusetts, 197 U. S. 11, 38 (1905)).
The key in this case is that government has not made a medical or scientific judgment entitled to deference. Scientifically, a political party caucus is no more likely to
spread COVID-19 than a church service, and a Republican rally is no more likely to
do so than a Black Lives Matter rally.
Under the executive order, 100 people may go to a church, sit inside in rows of
chairs, shake sanitized hands at the passing of the peace, and listen to a 20-minute
homily about faith, sandwiched between announcements and the singing of hymns.
But the same 100 people may not go to a hotel ballroom, sit inside in rows of chairs,
shake sanitized hands before the event begins, and listen to a 20-minute speech about
politics, sandwiched between announcements and the singing of God Bless America.
The only difference between permitted and proscribed speech is the content.
Similarly, the Governor has conferred his protection when hundreds of people gather
in a parking lot, loft homemade posters, listen to speakers talk about racial injustice
and police brutality, and wave banners. But the same-sized crowd risks arrest if they

 14
gather in a farm field, loft homemade posters, listen to speakers talk about free enterprise, and wave Trump 2020 signs. Again, the only difference between permitted
and proscribed speech is the content the Governor has given his imprimatur.
Why has the Governor drawn these lines? In the case of houses of worship, he
believes that he is compelled to by the First Amendment’s free exercise clause and
Illinois Religious Freedom Restoration Act.20 In the case of Black Lives Matter protests, he believes that the First Amendment again compels him to respect their right
to “speak truth” and “express themselves.”21 These are legal conclusions, not medical
or scientific judgments, and to them the Court owes no deference. They are also political and policy judgments about which speakers can exercise their right to gather
at a time when all others are banned from gathering.
Though an executive may constitutionally suspend the exercise of constitutional
rights during a pandemic, it does not follow that he may pick-and-choose who gets
exemptions to that suspension based on the content of their speech. Jacobson only
allows treating dissimilar gatherings differently. See S. Bay United Pentecostal
Church, 207 L.Ed.2d at 155 (Roberts, C.J., concurring) (the governor’s order barring
church gatherings treated “comparable secular gatherings” the same and treated
“only dissimilar activities” differently). Jacobson is not such an open-ended warrant
20

Def.’s Response to Motion for a Preliminary Injunction, Docket 10, at 11–12.

21

See supra notes 13-15 and accompanying text.

 15
of unlimited, unfettered discretion that a court must sit idly by if the Governor permitted Catholics to gather but barred Lutherans from doing so, or that he allowed
Democratic rallies but not Republican ones. In fact, at a time when the executive
wields the greatest power, courts should be especially vigilant to ensure that power
is applied fairly for the good of all, and especially skeptical of exemptions granted
only to a chosen few.
Jacobson grants tremendous power to the executive in a crisis. But that power
does not include the right to discriminate on a non-medical basis in the exercise of
constitutional rights. See Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (even during
a crisis like World War II, “the forcible relocation of U. S. citizens to concentration
camps, solely and explicitly on the basis of race, is objectively unlawful.”). A pandemic
does not mean all the normal rules of fair play go out the window. See Merrill v. People
First of Alabama, No. 19A1063 (U.S. July 2, 2020) (granting stay).
II.

The Applicants have an indisputable right to fair and equal treatment under the First Amendment.

Reed v. Town of Gilbert makes clear that just as the government may not favor or
disfavor the speaking of certain viewpoints, it also may not favor or disfavor certain
categories of speech content. 576 U.S. at 159. When the government draws lines that
differentiate between similar speakers based only on the content of their speech, that
classification is subject to strict scrutiny. Id. at 163-64.

 16
This is what the Governor has done here: he has favored two categories of content
(religious speech, protest speech) but denied that favor to all other categories of
speech. Whether the treatment is a burden on one class (as it was in Reed) or a favor
for one class makes no difference, the key is unequal treatment based on content. See
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995)
(“[G]overnment regulation may not favor one speaker over another.”); Citizens
United, 558 U.S. at 340.22 See also Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622,
659 (1994); Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S.
575, 585 (1983). These concerns are especially pronounced when favor is conferred on
politically powerful or sympathetic speakers but denied to others. Southworth v. Bd.
of Regents of Univ. of Wis., 307 F.3d 566, 594 (7th Cir. 2002).
Here the Governor’s favor turns on the content of the speech being delivered at
the gathering. In the same rented high school gymnasium on the same Sunday night,
a pastor may preach a sermon, but a congressional candidate may not deliver a
stemwinder on a soapbox.
Because the difference in treatment is based on content, the Order is subject to
strict scrutiny. Reed, 576 U.S. at 163-64. Plaintiffs grant that fighting COVID-19 is a

The guarantees of the Fourteenth Amendment’s equal protection clause provide
the same basis for relief as the free speech clause. Police Department of Chicago v.
Mosley, 408 U.S. 92, 96 (1972). See Proft v. Raoul, 944 F.3d 686, 691 (7th Cir. 2019).

22

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compelling state interest. See S. Bay United Pentecostal Church, 207 L.Ed.2d at 154
(Roberts, C.J., concurring) (describing the disease’s impact). But such an order must
still pass narrow tailoring, and in this case it cannot. Roberts, 958 F.3d at *12.
III.

Narrow tailoring requires similar treatment for similar speakers,
and houses of worship and political parties are similar speakers.

The Constitution commands that “entities of similar character” are entitled to
similar treatment. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,
48 (1983). Political parties and houses of worship are “entities of similar character”
in that they both live at the heart of the First Amendment. Plaintiffs do not ask this
Court to make an apples-to-oranges comparison between churches or political parties,
on the one hand, and soup kitchens or hardware stores on the other hand. They ask
the Court to compare apples-to-apples, between sets of expressive associations that
are alike in both constitutional stature and the actual activities undertaken. In fact,
courts often list churches and political parties in the same breath as core First
Amendment actors. See, e.g., Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 57
(1st Cir. 1990); IDK, Inc. v. Cty. of Clark, 836 F.2d 1185, 1195 (9th Cir. 1988); Communist Party of U.S. v. United States, 384 F.2d 957, 963 n.9 (D.C. Cir. 1967).
The District Court said the Governor’s exemption for houses of worship met the
standard for narrow tailoring because religious exercise enjoys a special status under
the First Amendment, because of the free-exercise clause. Opinion & Order at 16–17.
But the Seventh Circuit has held that the previous iterations of the Governor’s order

 18
that did not exempt churches did not violate the Free Exercise Clause. See Elim
Church, 2020 U.S. App. LEXIS 18862, at *16. See S. Bay United Pentecostal Church,
207 L.Ed.2d at 554. And the Governor only decided that the Illinois Religious Freedom Act meant he should grant an exemption on April 30, after his ban had already
been in place for six weeks and quite obviously prevented churches from gathering.
Clearly, then, the exemption now in place is a matter of executive grace, not constitutional command or statutory obligation.
The Seventh Circuit’s order denying the motion for an injunction pending appeal
has two reasons for treating religious speech differently from political speech. First,
the Order says the free exercise clause cannot be mere surplusage; its presence in the
First Amendment must do some work. Appeals Order at 2. But the work it does often
has nothing to do with speech or assembly. See, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012). When it comes to religious
speech, religious speakers usually rely on the speech clause rather than the free exercise clause because it provides more robust protection. See, e.g., Reed, 576 U.S. 155;
Rosenberger, 515 U.S. at 819; Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569,
572 (1987). And this Court has never said that religious speech, particularly because
of its religious content, is more protected than other kinds of speech because of its
content under the free exercise clause.

 19
The Seventh Circuit’s order goes on to say that though Elim Church does not require the Governor to grant an exemption, Elim Church does not prohibit him from
doing so anyway if he wishes to honor the spirit of the free exercise clause. Appeals
Order at 2. But allowing the governor to favor religious speech over non-religious
speech based on nothing more than its content where the free exercise clause does
not require him to do so runs afoul of the Establishment Clause by favoring religious
speech over non-religious speech. See Mitchell v. Helms, 530 U.S. 793, 810 (2000);
Bowen v. Roy, 476 U.S. 693, 707 (1986).
Further, if the Governor is simply making a policy choice to go beyond the baseline
of the free exercise clause, then this policy classification must stand up to strict scrutiny. Here, the lack of narrow tailoring is especially evident because the Governor’s
order exempts not only religious services, but all religious activity. And it exempts
religious activity from not only the ban on gathering, but also the masks mandate
and all social distancing requirements. Under strict scrutiny, it cannot be said that
the Governor’s order is narrowly tailored to prevent the spread of COVID-19 where
it exempts any religious speech not only from the number of people that participate
in such speech, but from other precautions such as requirements to wear a mask or
to distances themselves, while preventing any political gathering over a certain number of people, even if the attendees wear masks and observe other precautions.

 20
Moreover, speech about politics is the essence of the speech clause just as much
as worship services are the essence of the free exercise clause. Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 790 (2011) (“The Free Speech Clause exists principally to protect discourse on public matters. . . .”); Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 405-06 (2011) (Scalia, J., concurring in part) (“The unique protection granted to political speech is grounded in the history of the Speech Clause, which
was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” (internal citation omitted)).
That said, religious speakers are special under the First Amendment. But so are
political speakers. Political parties exist “at the very heart” of the First Amendment.
Cousins v. Wigoda, 419 U.S. 477, 491 (1975) (Rehnquist, J., concurring). Numerous
Supreme Court cases recognize the unique place that political parties hold in our
democratic system, and extend First Amendment protection to their activities as a
result. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997);
Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 124 (1981); Cousins,
419 U.S. at 490.23 And their speech on public issues “belong[s] on the highest rung of

As evidence of the special status of religious organizations, the Governor cites the
U.S. Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. EEOC, 565 U.S. 171, 188 (2012), recognizing a First Amendment right of religious organizations to select their own leaders regardless of federal anti-discrimination statutes. Response at 11–12. The U.S. Supreme Court has similarly decided

23

 21
the hierarchy of First Amendment values.” N.A.A.C.P. v. Claiborne Hardware Co.,
458 U.S. 886, 913 (1982). Especially during the six months leading up to a presidential election. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (“That this
advocacy occurred in the heat of a controversial referendum vote only strengthens
the protection afforded to Mrs. McIntyre’s expression…”). This “proposition . . . ought
to be unassailable: Political speech is the primary object of First Amendment protection.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 411 (2000) (Thomas,
J., dissenting).24
Nothing inherent in the content of religious or political speech, however, allows
the government to prevent one kind of speech to prevent the spread of COVID-19,
while allowing the other kind of speech to continue with absolutely no restriction.

that political parties enjoy a First Amendment right to select their own standardbearers and convention delegates regardless of state statutes. Timmons, 520 U.S. at
359; Eu, 489 U.S. 214; Democratic Party of U.S., 450 U.S. at 124; Cousins, 419 U.S.
at 490. That churches and political parties are both protected in the choice of their
leaders is further proof of their similar status as core First Amendment institutions.
Accord Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S.
721, 755 (2011) (“There is practically universal agreement that a major purpose of
the First Amendment was to protect the free discussion of governmental affairs, including discussions of candidates.” (internal quotations omitted)); Morse v. Frederick, 551 U.S. 393, 403 (2007) (“Political speech, of course, is ‘at the core of what the
First Amendment is designed to protect.’” (quoting Virginia v. Black, 528 U.S. 343,
365 (2003)); Mills v. Alabama, 384 U.S. 214, 218 (1966) (“Whatever difference may
exist about interpretations of the First Amendment, there is practically universal
agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”)

24

 22
Such a distinction is not narrowly tailored because there is nothing inherent in the
content of religious speech that helps the government prevent the spread of COVID19. In short, the exemption does nothing to further the government’s interest. Rather,
the exception exists for the governor’s political convenience or policy preference.
Plaintiffs are not here pushing for an exemption for Little League games, car
shows, or sales conventions. Those are speakers of different character, with different
constitutional standing. They only seek equal treatment between similar categories
of speech by similarly situated speakers who are entitled to similar levels of First
Amendment protection.
IV.

The Governor may not extend special treatment to Black Lives
Matters’ protest speech while denying it to similar speakers.

While the Governor has written an explicit exemption for houses of worship into
his executive order, he subsequently conferred a second explicit exemption by public
pronouncement, recognizing the “First Amendment rights” of Black Lives Matter protestors to gather even during a pandemic.25 The Court of Appeals’ Order has zero
discussion of the special treatment extended to certain protestors but denied to all
other political speakers. This is truly the apples-to-apples comparison.

25

See supra notes 13-15 and accompanying text.

 23
Below, the District Court said that the Republicans have no reason to fear that if
they also gathered in defiance of the order, the Governor would sic the State Police
on them having forborne to do so against the Black Lives Matter protestors. Opinion
& Order at 10. Because Republicans have not shown discriminatory enforcement,
Judge Ellis concluded Applicants lack an argument here.
But this is the problem with wink-and-nod policing policies. Chicago Mayor Lori
Lightfoot didn’t get the hint; she sent the cops to bust up a political protest.26 The
Republicans can’t know whether their event will be protected; the Governor’s public
comments recognizing the First Amendment rights of protestors were all specific to
the Black Lives Matter protests.27 It’s unfair to say they have to risk arrest to find
out the precise contours of the Governor’s de facto exemption, whether it’s for all political protestors or just for Black Lives Matter protestors. See Susan B. Anthony List
v. Driehaus, 573 U.S. 149, 158-59 (2014).
But even if the exemption covers all protestors, this does nothing to solve the Reed
v. Town of Gilbert problem inherent in the Governor’s policy. If all protest speech has
joined religious speech as an exempt category, then this is just another category of
favored speech. But if the Republicans advocate a proactive agenda at an event or
rally in favor of a candidate rather than gather to protest against something, is that
26

See supra notes 13-15 and accompanying text.

27

Id.

 24
positive speech constitutionally different from protest speech? If they have a fundraising reception or a caucus to elect delegates rather than a rally or protest, does the
Constitution permit the Governor to treat those gatherings differently? Or if the
speech takes place outside in the public square on the streets or sidewalks in the form
of a protest, does that somehow give the speech more constitutional protection than
speech that takes place inside or in a private farm field? The obvious answer is no.
The Governor may not hold Republicans’ political speech to “a different standard”
than the speech from Black Lives Matter he has promised protection.28
V. The balance of harms is no reason to deny the injunction.
The District Court and Circuit Court lean heavily on the balance of harms in their
conclusions, pointing out that more events will lead to more spread of the disease.
Opinion & Order at 19–20; Appeals Court Order at 2. Both ignore that Applicants
have pledged in their affidavits to observe appropriate precautions in the events they
hold, including mask-wearing, hand-washing and sanitizing, and observing appropriate distances. And both posit a straw-man as the end of all regulations on gatherings,

Amicus Brief of the United States, Givens v. Newsom, No. 20-15949 (9th Cir. June
10, 2020) at 24, https://www.justice.gov/opa/press-release/file/1284296/download
(similar, as to California officials’ treatment of protests). See Soos v. Cuomo, 1:20-cv00651-GLS-DJS (N.D.N.Y. June 26, 2020), Docket 35, at 32 (“[B]y acting as they did
[in their public statements praising and encouraging the Black Lives Matter protests even during the pandemic], Governor Cuomo and Mayor de Blasio sent a clear
message that mass protests are deserving of preferential treatment.”).

28

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id., and ignore the clear limiting principle Applicants have offered distinguishing core
political speech from entertainment or commercial or other types of speech.
More importantly, based on this logic, if the Governor extended an exemption to
Catholics for their services but denied one to Lutherans, the Lutherans would not
succeed in challenging the distinction because the balance of harms would favor the
Governor, because any injunction protecting the Lutherans from this discrimination
would expand the opportunities for the virus to spread. This cannot be the law. Both
the District Court and the Appellate Court ignore the fact that it is the governor’s
exemption of religious speech and protest speech that has undermined its compelling
interest in preventing the spread of COVID-19. A “‘law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful
speech, when it leaves appreciable damage to that supposedly vital interest unprohibited,’” Reed, 576 U.S. at 172 (quoting Republican Party of Minn. v. White, 536 U.
S. 765, 780 (2002)). In Reed, this Court found that the “Town has offered no reason to
believe that directional signs pose a greater threat to safety than do ideological or
political signs.” Id. Similarly, the Governor has offered no reason to believe that political speech poses a greater threat to the spread of COVID-19 than do religious or
protest speech. The District Court and the Appellate Court both err because they
assume that allowing any more exceptions to the Governor’s order would undermine

 26
the prevention of the spread of COVID-19, when the Governor has already undermined that purpose by allowing the exception in the first place. The lower courts’
reasoning simply allows the Governor to double down on his mistake by discriminating against certain speakers based on the content of their message.
The Sixth Circuit correctly concluded that events that follow “the same risk-minimizing precautions as similar . . . activities” permit no greater harm to others than
the Governor already allows, and “treatment of similarly situated entities in comparable ways serves public health interests at the same time it preserves bedrock [constitutional] guarantees.” Roberts, 958 F.3d at 416.
CONCLUSION
Judge Ho’s concurring opinion last week in Spell v. Edwards, No. 20-30358, 2020
U.S. App. LEXIS 19148, at *11–15 (5th Cir. June 18, 2020) is a fitting coda to this
case: “Government does not have carte blanche, even in a pandemic, to pick and
choose which First Amendment rights are ‘open’ and which remain ‘closed.’ . . . The
First Amendment does not allow our leaders to decide which rights to honor and
which to ignore. In law, as in life, what’s good for the goose is good for the gander. In
these troubled times, nothing should unify the American people more than the principle that freedom for me, but not for thee, has no place under our Constitution.”
These are not only apt words, but they reflect indisputable rights, to fair and equal
treatment under law. The Application should be granted.

 27

Respectfully submitted,

July 3, 2020

Daniel R. Suhr
Counsel of Record
Jeffrey M. Schwab
LIBERTY JUSTICE CENTER
190 LaSalle St., Suite 1500
Chicago, IL 60603
(312) 263-7668
dsuhr@libertyjusticecenter.org