A federal judge has ruled Gov. JB Pritzker’s decision to march in a massive anti-racism demonstration, in apparent violation of his own executive orders issued to stem the spread of COVID-19, does not give a green light to the governor’s political opponents to also gather in large numbers for political rallies.
Further, the judge rejected the attempt by the Illinois Republican Party to argue Pritzker’s decision to relax gathering rules for religious assemblies means political rallies and other gatherings normally protected by the First Amendment should also be exempted from the statewide ban on gatherings larger than 50 people.
“An injunction that allows Plaintiffs to gather in large groups so that they can engage in more effective speech is simply not in the public interest,” wrote U.S. District Judge Sara Ellis in her ruling, issued July 2. “Such relief would expand beyond any gatherings and negatively impact non-parties by increasing their risk of exposure. Thus, the harms tilt significantly in the Governor’s favor as he seeks to prevent the spread of this virulent virus.”
U.S. District Judge Sara Ellis was appointed to the federal court in the Northern District of Illinois in 2013 by President Barack Obama.
The state Republican Party has said it will challenge that ruling on appeal.
“Today’s order is disappointing but we are confident in our argument in favor of political parties’ right to equal treatment to exercise their First Amendment rights,” said Patrick Hughes, president and co-founder of the Liberty Justice Center, of Chicago. Attorneys from the Liberty Justice Center are representing the Republicans in the action. “We are immediately appealing the decision.”
The Illinois Republican Party, along with several affiliated local party organizations, sued Pritzker in mid-June, accusing the governor of picking and choosing whose political speech and First Amendment-protected gatherings would be allowed and endorsed by the state amid the COVID-19 pandemic.
The lawsuit took particular aim at Pritzker’s orders limiting the ability of people throughout the state from gathering in groups of more than 10 people at a time, a limit that has since been raised to 50.
Pritzker imposed the gathering restrictions in March, as part of a series of executive actions issued under emergency powers he assumed to combat the spread of the novel coronavirus that causes COVID-19.
In the months since, Pritzker has fiercely defended against a mounting number of lawsuits challenging his ability to use those broad emergency powers.
Most lawsuits have questioned whether the governor overstepped his authority under Illinois law and the Illinois state and U.S. constitutions.
The Republican lawsuit, however, centered on Pritzker’s permissive stance on political gatherings he favors, particularly anti-racism demonstrations that have brought tens of thousands of people out at a time to the streets of Chicago and elsewhere in Illinois.
To date, public health officials have maintained those demonstrations, despite violating nearly every rule imposed to date to combat the spread of COVID-19, have not contributed to the ongoing spike in COVID-19 cases in much of the country in the weeks that followed the demonstrations.
Rather, public health officials instead blame ordinary social activities, particularly engaging in public without masks or gathering at bars, and dining at restaurants.
The GOP lawsuit also noted Pritzker has relaxed requirements on religious gatherings, after several churches challenged in court whether those restrictions could be allowed under the First Amendment.
He noted the state took no action to shut down protests of Pritzker’s lockdown policies in May.
And Pritzker asserted the same gathering rules have limited official Democratic Party events, as well.
The governor and Attorney General Kwame Raoul also drew a distinction between political events and religious assemblies, noting the special protections granted to the free exercise of religion under the Constitution and religious freedom laws.
The state officials argued the governor’s restrictions are based on conduct, not viewpoint.
In her decision, Judge Ellis disagreed with some of the governor’s positions.
For instance, she questioned whether the governor could carve out exemptions for religious gatherings, without discriminating against non-religious speech and other constitutionally protected activities.
And the judge rejected an attempt by the state to compare the governor’s gathering restrictions to fire safety building occupancy limits.
“When a gathering is still not allowed based on the speech involved, the government has engaged in content-based discrimination,” Judge Ellis wrote. “The Court finds that by exempting free exercise of religion from the gathering limit, the Order creates a content-based restriction.”
However, Judge Ellis agreed that the governor’s exemption for religious gatherings still can pass constitutional muster. She said the governor’s order, allowing churches and other religious organizations to follow public health “guidelines,” rather than strict gathering size limits, allows the state to balance the need to fight the COVID-19 pandemic, while respecting the “unique protections” for religion established in the Constitution and the law.
Ellis noted U.S. Supreme Court justices and appeals court judges “have been receptive” to legal challenges launched against governors’ use of emergency powers to curtail religious freedoms in the name of fighting COVID-19.
“Against this backdrop, the Governor concluded that the least restrictive means by which to protect this constitutional right was to permit free religious exercise but encourage individuals who engage in such practices to adhere to public health guidelines,” Ellis wrote. “The Court finds that this is indeed the least restrictive means by which to accomplish both aims.”
Ellis, however, rejected the Republicans’ assertion that their political gatherings should be treated the same as church services or Black Lives Matter demonstrations.
“… The Constitution does not accord a political party the same express protections as it provides to religion,” Ellis wrote.
The “narrow exemptions” to the gathering limits crafted by Pritzker “demonstrate that the Order eliminates the increased risk of transmission of COVID-19 when people gather while only exempting necessary functions to protect health, safety, and welfare and free exercise of religion,” the judge said.
Ellis also brushed aside assertions from the Republicans that the spirit of the governor’s orders have been undermined by Pritzker himself, when he chose to attend and march in an anti-racism demonstration attended by numerous other public officials and political allies of the governor.
Republicans pointed to actions taken by Chicago Police to break up anti-lockdown protests. But Ellis said those police were not “state officials.” Therefore, she said, the state did not take action to enforce the gathering limits against either the anti-racism protesters or the anti-lockdown protesters.
The Republicans, she said, “have failed to point to anything that suggests selective enforcement against protestors based on the content of their message, and the Governor’s participation in one protest does not give rise to content-based discrimination in violation of the First Amendment.”