Abuse of Discretion – Preliminary Injunction

Listen to this article

7^th Circuit Court of Appeals

Case Name: Illinois Republican Party, et al., v. J.B. Pritzker

Case No.: 20-2175

Officials: WOOD, BARRETT, and ST. EVE, Circuit Judges.

Focus: Abuse of Discretion – Preliminary Injunction

As the coronavirus SARS‐CoV‐2 has raged across the United States, public officials everywhere have sought to implement measures to protect the public health and welfare. Illinois is no exception: Governor J. B. Pritzker has issued a series of executive orders designed to limit the virus’s opportunities to spread. In the absence of better options, these measures principally rely on preventing the transmission of viral particles (known as virions) from one person to the next.

Governor Pritzker’s orders are similar to many others around the country. At one point or another, they have included stay‐at‐home directives; flat prohibitions of public gatherings; caps on the number of people who may congregate; masking requirements; and strict limitations on bars, restaurants, cultural venues, and the like. These orders, and comparable ones in other states, have been attacked on a variety of grounds. Our concern here is somewhat unusual. Governor Pritzker’s Executive Order 2020‐43 (EO43, issued June 26, 2020) exhibits special solitude for the free exercise of religion. It does so through the following exemption:  a. Free exercise of religion. This Executive Order does not limit the free exercise of religion. To protect the health and safety of faith leaders, staff, congregants and visitors, religious organizations and houses of worship 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 out‐ doors (and consistent with social distancing requirements and guidance regarding wearing face coverings), and to limit indoor services to 10 people. Religious organizations are encouraged to take steps to ensure social distancing, the use of face coverings, and implementation of other public health measures.

See EO43, § 4(a), at https://www2.illinois.gov/Pages/Executive‐Orders/ExecutiveOrder2020‐43.aspx. Emergency and governmental functions enjoy the same exemption. Other‐ wise, EO43 imposes a mandatory 50‐person cap on gatherings.

The Illinois Republican Party and some of its affiliates (“the Republicans”) believe that the accommodation for free exercise contained in the executive order violates the Free Speech Clause of the First Amendment. In this action, they seek a permanent injunction against EO43. In so doing, they assume that such an injunction would permit them, too, to congregate in groups larger than 50, rather than reinstate the stricter ban for religion that some of the Governor’s earlier executive orders included, though that is far from assured. Relying principally on Jacobson v. Massachusetts, 197 U.S. 11 (1905), the district court denied the Republicans’ request for preliminary injunctive relief against EO43. See Illinois Republican Party v. Pritzker, No. 20 C 3489, 2020 WL 3604106 (N.D. Ill. July 2, 2020). The Republicans promptly sought interim relief from that ruling, see 28 U.S.C. § 1292(a)(1), but we declined to disturb the district court’s order, Illinois Republican Party v. Pritzker, No. 20‐2175 (7th Cir. July 3, 2020), and Justice Kavanaugh in turn refused to intervene. Illinois Republican Party v. Pritzker, No. 19A1068 (Kavanaugh, J., in chambers July 4, 2020).

We did, however, expedite the briefing and oral argument of the merits of the preliminary injunction, and we heard argument on August 11, 2020. Guided primarily by the Supreme Court’s decision in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), we conclude that the district court did not abuse its discretion in denying the requested preliminary injunction, and so we affirm its order.

Affirmed

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.