By Lisa Soronen
Without explanation, without referring the matter to the entire U.S. Supreme Court, and without calling for a response, Justice Brett Kavanaugh denied a request for an emergency injunction to strike down Illinois Governor J.B. Pritzker’s executive order limiting gatherings to 50 people while exempting religious gathering.
Likely Kavanaugh refused to grant the injunction because the standard is high.
Specifically, the Supreme Court only grants injunctive relief denied by a lower court when “the legal rights at issue are indisputably clear” and, even then, “sparingly and only in the most critical and exigent circumstances.”
The Illinois Republican Party wants to hold numerous in-person gathering leading up to the presidential election in November but can’t because its gatherings aren’t religious. It also claims the governor has declined to enforce his executive order against protestors following the death of George Floyd. The Illinois Republican Party argued that the executive order violates the First Amendment because it favors religious speech and Black Lives Matter speech over its speech.
A federal district court refused to give the Illinois Republican Party a preliminary injunction and the 7th Circuit affirmed.
The Supreme Court has held that “content-based” restrictions on speech are subject to strict (usually fatal) scrutiny.
The federal district court concluded that the executive order’s exemption for religion was content-based. However, the court found that it met the requirements of strict scrutiny. The 7th Circuit agreed noting it recently held that while the governor doesn’t have accommodate religion this way during the pandemic, he was not forbidden from doing so.
The Illinois Republican Party agreed that the religious exemption meets strict-scrutiny’s compelling interest requirement but not it’s narrow tailoring requirement. “[T]he 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.”
The federal district court found no content-based restrictions related to speech at protests because the Illinois Republican Party offered no evidence that the governor enforced the executive order differently against protesters based on the content of their message. The 7th Circuit didn’t address this argument in its brief opinion. According to the Illinois Republican Party, “[t]he Governor may not hold Republicans’ political speech to ‘a different standard’ than the speech from Black Lives Matter he has promised protection.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.