In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1811
ELIM ROMANIAN PENTECOSTAL CHURCH and LOGOS BAPTIST
MINISTRIES,
Plaintiffs-Appellants,
v.
JAY ROBERT PRITZKER, Governor of Illinois,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 20 C 2782 — Robert W. Gettleman, Judge.
____________________
ARGUED JUNE 12, 2020 — DECIDED JUNE 16, 2020
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Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. Two churches contend, in
this suit under 42 U.S.C. §1983, that an executive order limit-
ing the size of public assemblies (including religious ser-
vices) to ten persons violates their rights under the Free Ex-
ercise Clause of the First Amendment, applied to the states
2 No. 20-1811
by the Fourteenth Amendment. The Governor of Illinois is-
sued this order to reduce transmission of the coronavirus
SARS-CoV-2, which causes the disease COVID-19. The dis-
ease is readily transmissible and has caused a global pan-
demic. As of June 16, 2020, 133,639 persons in Illinois have
tested positive for COVID-19, and 6,398 of these have died.
Epidemiologists believe that those numbers are under-
counts—persons with no or mild symptoms may not be test-
ed, some people die of the disease without being tested, and
some deaths aaributed to other causes may have been has-
tened or facilitated by the effect of COVID-19 weakening the
immune system or particular organs.
Experts think that, without controls, each infected person
will infect two to three others, causing an exponential
growth in the number of cases. Because many of those cases
require intensive medical care, infections could overwhelm
the medical system. The World Health Organization, the
Centers for Disease Control, and many epidemiologists rec-
ommend limiting the maximum size of gatherings (the Gov-
ernor’s cap of ten comes from a CDC recommendation),
adopting a policy of social distancing (everyone staying at
least six feet away from anyone not living in the same
household—ten feet if the other person is singing or talking
loudly), isolating people who have the disease, wearing face
coverings so that people who have the disease but don’t
know it are less likely to infect others, and tracing the con-
tacts of those who test positive. Reducing the number of
people at gatherings protects those persons, and perhaps
more important it protects others not at the gathering from
disease transmiaed by persons who contract COVID-19 by
aaending a gathering that includes infected persons.
No. 20-1811 3
Plaintiffs contend, however, that a limit of ten persons
effectively forecloses their in-person religious services, even
though they are free to hold multiple ten-person services
every week, and that the Governor’s proposed alternatives—
services over the Internet or in parking lots while worshipers
remain in cars—are inadequate for them.
Here is the relevant text of the order in question:
All public and private gatherings of any number of people oc-
curring outside a single household or living unit are prohibited,
except for the limited purposes permiaed by this Executive Or-
der. Pursuant to current guidance from the CDC, any gathering
of more than ten people is prohibited unless exempted by this
Executive Order. Nothing in this Executive Order prohibits the
gathering of members of a household or residence.
All places of public amusement, whether indoors or outdoors,
including but not limited to, locations with amusement rides,
carnivals, amusement parks, water parks, aquariums, zoos, mu-
seums, arcades, fairs, children’s play centers, playgrounds, fun-
plexes, theme parks, bowling alleys, movie and other theaters,
concert and music halls, and country clubs or social clubs shall
be closed to the public.
Executive Order 2020-32 §2(3) (Apr. 30, 2020) (boldface in
original). Section 2(5)(vi) adds that people are free to leave
their homes
[t]o engage in the free exercise of religion, provided that such
exercise must comply with Social Distancing Requirements and
the limit on gatherings of more than ten people in keeping with
CDC guidelines for the protection of public health. Religious or-
ganizations and houses of worship are encouraged to use online
or drive-in services to protect the health and safety of their con-
gregants.
4 No. 20-1811
One other section of this order bears on religious activities.
Section 2(12)(c) includes in the list of “essential” functions
exempt from the ten-person cap:
Businesses and religious and secular nonprofit organizations, in-
cluding food banks, when providing food, shelter, and social
services, and other necessities of life for economically disadvan-
taged or otherwise needy individuals, individuals who need as-
sistance as a result of this emergency, and people with disabili-
ties[.]
Religious services, too, are deemed “essential,” see §2(5)(vi),
which is why they can proceed while concerts are forbidden,
but they have not been exempted from the size limit.
The churches contend that these rules burden the free ex-
ercise of their faith, which requires adherents to assemble in
person, and discriminates against religious services com-
pared with the many economic and charitable activities that
the Governor has exempted from the ten-person limit. The
churches are particularly put out that their members may
assemble to feed the poor but not to celebrate their faith. A
district court, however, concluded that Executive Order
2020-32 is neutral with respect to religion and supported by
the compelling need to safeguard the public health during a
pandemic. The court denied the motion for a preliminary
injunction. 2020 U.S. Dist. LEXIS 84348 (N.D. Ill. May 13,
2020). Plaintiffs appealed under 28 U.S.C. §1292(a)(1).
We denied the churches’ motion for an injunction pend-
ing appeal, with this explanation:
Based on this court’s preliminary review of this appeal for pur-
poses of this motion, we find that plaintiffs have not shown a
sufficient likelihood of success on the merits to warrant the ex-
traordinary relief of an injunction pending appeal. The Gover-
nor’s Executive Order 2020-32 responds to an extraordinary pub-
No. 20-1811 5
lic health emergency. See generally Jacobson v. Massachuse