Capitol Fax.com - Your Illinois News Radar » *** UPDATED x2 - ILGOP will appeal *** Federal judge denies ILGOP’s TRO request: “Granting Plaintiffs the relief they seek would pose serious risks to public health”
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*** UPDATED x2 - ILGOP will appeal *** Federal judge denies ILGOP’s TRO request: “Granting Plaintiffs the relief they seek would pose serious risks to public health”

Thursday, Jul 2, 2020

* United States District Judge Sara Ellis in the Northern District

In response to the ongoing COVID-19 pandemic, Defendant JB Pritzker, Governor of Illinois, has issued a series of executive orders including Executive Order 2020-43 (“Order”). The Order prohibits gatherings greater than fifty people but exempts the free exercise of religion from this limit.

Plaintiffs Illinois Republican Party, Will County Republican Central Committee, Schaumburg Township Republican Organization, and Northwest Side GOP Club challenge this exemption as violating their rights under the First and Fourteenth Amendments. Plaintiffs allege that by exempting the free exercise of religion from the general gathering limit, the Governor has created an unconstitutional content-based restriction on speech. Plaintiffs also claim that by not enforcing the Order against protestors following the death of George Floyd, the Governor has created another exception. Plaintiffs filed a complaint and a motion for a temporary restraining order (“TRO”) and preliminary injunction in this Court on June 15, 2020 because they want to hold political party events larger than fifty people, including a picnic on July 4th. Plaintiffs seek a declaration stating that treating political party gatherings differently than religious gatherings violates the First and Fourteenth Amendments. Plaintiffs also ask the Court to enjoin the Governor from enforcing the Order against political parties.

Because Plaintiffs’ likelihood of success on the merits is less than negligible and the balance of harms weighs heavily against Plaintiffs, the Court denies their motion.

* First Amendment

Plaintiffs have not shown how this exemption is a plain invasion of their constitutional rights. The Order involves reasonable measures intended to protect public health while preserving avenues for First Amendment activities. […]

Overall, plaintiffs 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.

* The state didn’t win on every point. From the end of the section on content neutrality

When a gathering is still allowed based on the speech involved, the government has engaged in content-based discrimination. The Court finds that by exempting free exercise of religion from the gathering limit, the Order creates a content-based restriction.

…Adding… A commenter suggests the above means the judge believes the governor’s religious exemption is unconstitutional. I doubt the governor will press that further, but somebody else might. Checking with the AG’s office at the moment, but the ILGOP might want to reconsider its appeal.

…Adding… The AG’s office said the judge didn’t “invalidate the exemption for religious organizations.” True, but the judge may have opened the door to it.

* But it prevailed everywhere else. Strict scrutiny

Plaintiffs contend that the Governor cannot satisfy the least restrictive means test because a political party caucus is no more likely to spread COVID-19 than a church service. However, the Constitution does not accord a political party the same express protections as it provides to religion. And by statute, Illinois has undertaken steps to provide additional protections for the exercise of religion. Additionally, the Order’s limited exemptions reinforce that it is narrowly tailored. The Order only exempts two other functions from the gathering limit: emergency and governmental functions. These narrow exemptions 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. Therefore, the Governor has carried his burden at this stage in demonstrating that the Order is narrowly tailored to further a compelling interest, and the Order survives strict scrutiny.

* Balance of harms

The balance of harms further confirms that Plaintiffs are not entitled to preliminary relief. Under the sliding scale approach, the less likely Plaintiffs’ chance of success the more the balance of harms must weigh in their favor. Because Plaintiffs’ claims have little likelihood of succeeding on the merits, they are not entitled to preliminary relief unless they show that the scales weigh heavily in their favor.

The scales weigh significantly against Plaintiffs. The number of COVID-19 infections continues to rise across the United States, which has led some states to recently impose greater restrictions on gatherings and activities. COVID-19 is highly contagious and continues to spread, requiring public officials to constantly evaluate the best method by which to protect residents’ safety against the economy and a myriad of other concerns. Granting Plaintiffs the relief they seek would pose serious risks to public health. […]

Plaintiffs to gather in large groups so that they can engage in more effective speech is simply not in the public interest. 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.

*** UPDATE 1 *** Chairman Tim Schneider…

We are disappointed with today’s results and obviously disagree with the ruling. Our fight to secure our first amendment right is not over, however. Our lawyers have immediately begun the process for appealing the decision.

*** UPDATE 2 *** Emily Bittner at the governor’s office (yes, she’s back)…

Governor Pritzker continues to prioritize Illinoisans’ health and safety first, and the people of Illinois have taken extraordinary care to follow health experts’ advice, which is why our state has the lowest positivity rate in the Midwest. Today’s decision is a win for everyone in Illinois. The administration respects the court’s decision and believes strongly in the First Amendment, and the Governor will continue to urge the people of Illinois to exercise constant vigilance and keep doing what has worked: wash your hands, watch your distance and wear your mask.

- Posted by Rich Miller        

25 Comments
  1. - Oswego Willy - Thursday, Jul 2, 20 @ 2:02 pm:

    === Plaintiffs have not shown how this exemption is a plain invasion of their constitutional rights. The Order involves reasonable measures intended to protect public health while preserving avenues for First Amendment activities. […]

    Overall, plaintiffs 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.===

    The ILGOP?

    “But… ‘Merica”?

    The Raunerite, Tim Schneider, turned full blown Trumpkin, is so out of step with moderate, suburban, diverse voters in Chicago, Cook, the Collars, and with women as well.

    If you just stop for 38 seconds and realize the signaling a lawsuit like this says to suburban moms, seniors, those most vulnerable with pre-existing conditions, it’s truly no wonder Rauner himself chose these foolish folks… they can’t think logically to politics… or to what people in society see as those who deserve support… as these choices show Covidiot thinking and signaling to those not driven by honesty or facts.

    The ILGOP will be no closer to relevance with Tim Schneider or Raunerites running through party aground to appease the Trumpkins.

    Help me help you… take the lumps and rebuild away from old, angry, rural, and white… and see Illinois as a place to have a string two party system.

    Deciding that a lawsuit seen a harmful to the public good isn’t how you gain voters back.


  2. - @misterjayem - Thursday, Jul 2, 20 @ 2:03 pm:

    “Plaintiffs’ likelihood of success on the merits is less than negligible”

    Great use of resources, people.

    – MrJM


  3. - Tin pan - Thursday, Jul 2, 20 @ 2:18 pm:

    Herman Cain will be giving the keynote


  4. - Oswego Willy - Thursday, Jul 2, 20 @ 2:20 pm:

    === We are disappointed with today’s results and obviously disagree with the ruling. Our fight to secure our first amendment right is not over, however. Our lawyers have immediately begun the process for appealing the decision.===

    “We need to double down so our old, angry, rural, white super minority we are willing to look ridiculous for, and to keep the few Trumpkins from… well, where are they gonna go… but we don’t want them mad… sumptin’-sumptin’… ‘Merica”

    Someone tackle them, they don’t need to appeal… lol


  5. - walker - Thursday, Jul 2, 20 @ 2:21 pm:

    “”Because Plaintiff’s likelihood of success on the merits is less than negligible “”

    Wow


  6. - OneMan - Thursday, Jul 2, 20 @ 2:35 pm:

    Dear Tim,

    Hello, as someone who identified Republican for almost my adult life and was a committeeman for a significant period of time I want to let you know that you are going to lose folks like me (educated suburban dudes) for a generation. This is not the hill to die on. There are so many other places the party (and it’s elected officials) could be focusing on during this (school reopening plans for one) situation.

    You are not picking up any of ‘the middle’ with this stuff. They are worried about their kid being able to go back to school and what that is going to look like. They are not worried about the fact they can’t get together with a large group of their friends.

    Come on, the mailer writes itself, “While Illinois numbers were going down and staying down compared to Texas and Florida the Illinois GOP fought to let people meet in close proximity in enclosed spaces, exactly what experts were telling people not to do, why? Perhaps they couldn’t figure out zoom, perhaps because they don’t care about the safety of your family and your kids”


  7. - NIU Grad - Thursday, Jul 2, 20 @ 2:40 pm:

    They are wasting so much money on this uphill battle…the press pop for this isn’t worth it. The base it riles up is already riled up, and the convention itself isn’t going to help their chances.


  8. - Oswego Willy - Thursday, Jul 2, 20 @ 2:41 pm:

    Welcome back, Emily… things might be a bit different since you were last around..,

    To - OneMan -, my 308 compadre…

    Well said. “What you said”. What needed to be said.

    It’s long time coming… but the ILGOP needs to take back the leadership from ALL… all Raunerites… and those pandering to the Trumpkins… to make the party viable in Illinois.

    Be well, - OneMan -

    OW


  9. - Blue Dog Dem - Thursday, Jul 2, 20 @ 2:47 pm:

    Tim Schneider and the Illinois GOP should just sit back and let JB roll however he chooses. This covid thing will ultimately fall squarely on his shoulders. The economic downturn included. It will take a decade or so, but history will prove how he dropped the ball.


  10. - CCapilla - Thursday, Jul 2, 20 @ 2:49 pm:

    Good grief. So let me see if I got this right. Not only did the EO hold up under scrutiny, the special carve out intended to limit litigation from religious corners was found to be invalid and the religious organizations are now subject to the EO just like everyone else? In short, not only did the Plaintiffs lose, but they actually lost more than they were asking to gain. And possibly to the detriment of some of their staunchest advocates? Too cute by half. And so they’ll want to appeal. There comes a time in litigation where yo have to discuss a very real possibility: sure, you may have gotten a bad outcome, but do you want to press ahead and maybe make some bad law too?


  11. - efudd - Thursday, Jul 2, 20 @ 2:52 pm:

    Blue Dog Dem, you are some kind of dumb.


  12. - Demoralized - Thursday, Jul 2, 20 @ 2:54 pm:

    ^^this x 100


  13. - Demoralized - Thursday, Jul 2, 20 @ 2:58 pm:

    ==This covid thing will ultimately fall squarely on his shoulders.==

    I’d be happy to let that happen if I were the Governor given how well he’s handled the situation. Only the covid denying “don’t tell me what to do” folks see things differently and they aren’t the smartest bunch in the world.


  14. - Oswego Willy - Thursday, Jul 2, 20 @ 3:00 pm:

    Oh boy, lol…

    === Tim Schneider and the Illinois GOP should just sit back and let JB roll however he chooses.===

    If they did that, the numbers in Illinois would be even better as more Covidiots would wear masks without the ILGOP and GA Members interfering, and social distancing would be better too

    ===This covid thing will ultimately fall squarely on his (Pritzker’s) shoulders.===

    It has gone on Pritzker’s shoulders, as his polling numbers in handling the crisis are exceptionally better than POTUS who won’t wear a mask and thinks this virus will magically disappear.

    ===The economic downturn included.===

    If that’s remotely true… then the election of 2020 will surely doom POTUS… as he’s up first… and “it’s the economy… “ sunk Bush, so if it’s bad now…

    ===It will take a decade or so, but history will prove how he dropped the ball.===

    Then Pritzker should win re-elect easy… way f it will take a decade to prove … whatever silly you are thinking.

    Your political acumen is lacking.

    Good luck.


  15. - OneMan - Thursday, Jul 2, 20 @ 3:01 pm:

    Don’t agree with how BDD thinks it is going to play out, but I think they are right to a degree. The best play for the GOP is at this point to let it play out.

    Just let JB do what he is doing, Governors own. At some point sadly the costs of what has happened are going to be obvious. Even if everything was addressed perfectly, taxpayers are going to be on the hook for significant costs and lost revenues.

    TBH JB has overall IMHO done a really good job, but even when that happens, people still get angry over time and after the fact.

    Tactically keep your yap shut and offering to help where appropriate is the best approach for the ILGOP IMHO, but that isn’t going to happen.


  16. - All this - Thursday, Jul 2, 20 @ 3:09 pm:

    ==It will take a decade or so, but history will prove how he dropped the ball.==

    ?


  17. - ArchPundit - Thursday, Jul 2, 20 @ 3:14 pm:

    ===Tactically keep your yap shut and offering to help where appropriate is the best approach for the ILGOP IMHO, but that isn’t going to happen

    They could also raise some of the issues with implementation and offer improvements, but that would mean taking governing seriously.


  18. - ArchPundit - Thursday, Jul 2, 20 @ 3:18 pm:

    ===When a gathering is still allowed based on the speech involved, the government has engaged in content-based discrimination. The Court finds that by exempting free exercise of religion from the gathering limit, the Order creates a content-based restriction.

    Oops. I had wondered if the courts might point out this problem. Politically it was wise to avoid the fight, but from a policy and First Amendment point of view, it was dumb. Congrats Tim! You are closing churches if anyone challenges it.


  19. - The Dude Abides - Thursday, Jul 2, 20 @ 3:24 pm:

    Boy, the ILGOP sure has fallen since the days of Jim Thompson and Jim Edgar. All these lawsuits likely won’t go anywhere and won’t help them win statewide elections either.


  20. - Pot calling kettle - Thursday, Jul 2, 20 @ 3:33 pm:

    ===Tim Schneider and the Illinois GOP should just sit back and let JB roll however he chooses. This covid thing will ultimately fall squarely on his shoulders. The economic downturn included. It will take a decade or so, but history will prove how he dropped the ball.===

    Agree with everything except your conclusion. If we look to the 1918 pandemic: “Comparing cities by the speed and aggressiveness of NPIs, we find that early and forceful NPIs did not worsen the economic downturn. On the contrary, cities that intervened earlier and more aggressively experienced a relative increase in manufacturing employment, manufacturing output, and bank assets in 1919, after the end of the pandemic.”

    https://libertystreeteconomics.newyorkfed.org/2020/03/fight-the-pandemic-save-the-economy-lessons-from-the-1918-flu.html


  21. - Moe Berg - Thursday, Jul 2, 20 @ 3:36 pm:

    Tim Schneider is such a gift to Democratic state legislative and congressional candidates.

    Trump - Mark Curran - Schneider: “The Making of the IL GOP Super-Super Minority 2020.”


  22. - OneMan - Thursday, Jul 2, 20 @ 3:47 pm:

    == They could also raise some of the issues with implementation and offer improvements, but that would mean taking governing seriously. ==

    Yeah, I have kind of given up hope on that.


  23. - Norseman - Thursday, Jul 2, 20 @ 3:48 pm:

    === … less than negligible … ===

    This phrase so aptly describes so many things with the GOP. Besides the lawsuit, it’s:

    - Concern about the health of Americans is LTN;
    - The effectiveness of it’s tactics is LTN;
    - The morality of it’s tactics is LTN;


  24. - Grandson of Man - Thursday, Jul 2, 20 @ 3:48 pm:

    The ILGOP seems completely locked in self-destruction mode, not concerned about exploding new COVID-19 infections in certain states. When all they care about is keeping a shrinking base, there is blindness to what really matters.


  25. - Dance Band on the Titanic - Thursday, Jul 2, 20 @ 4:52 pm:

    ===Trump - Mark Curran - Schneider: “The Making of the IL GOP Super-Super Minority 2020.”===

    Don’t forget Jeanne Ives and Jim Oberweis. They’re the GOP’s closers this year when it comes to killing the brand in the suburbs.


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