* Last year…

The Thomas More Society is claiming victory as the Illinois Department of Health released a statement issuing, “COVID-19 Guidance for Places of Worship and Providers of Religious Services Overview.” Governor “JB” Pritzker, the target of three separate Illinois lawsuits by the Thomas More Society, charging religious discrimination and violations of the United States and Illinois constitutions and Illinois’ Religious Freedom Restoration Act, announced in his daily press briefing on May 28, 2020 that he is withdrawing mandates on Illinois churches and replacing them with health department “guidelines” for places of worship.

* The lawsuit demanding a preliminary injunction was filed in April, but the Thomas More Society kept up its legal efforts despite the revised executive orders. It lost at the appellate level today. From the opinion…

Much has changed since the church filed this case on April 30, 2020. By the time the district court heard this case, Executive Order 10 had been replaced by Executive Order 2020-32, which still contained the ten-person limit on religious gatherings. But on May 29, months before plaintiffs filed their appellate brief, the governor issued Executive Order 2020-38, which encouraged a ten-person limit on religious gatherings but removed the mandate to that effect. Since then, the governor has continued to adjust regulations to manage risk with a series of executive orders that have all expressly exempted religious gatherings from mandatory restrictions. The plaintiffs’ complaint challenges the ten-person limit as it stood in April, when it applied to religious gatherings. That’s what the district court assessed when it denied a preliminary injunction on May 3, 2020.

We affirm that denial. Intervening authority from the Supreme Court offers plaintiffs a greater prospect for success on the merits of their First Amendment claim than either the district court or we had expected. Yet recent Supreme Court authority has also indicated that equitable considerations weigh against granting a preliminary injunction at this time, when the prospect of irreparable injury to the plaintiffs is very low. In addition, the interests of people who are not parties to this case (“the public interest” in the preliminary injunction balancing) weigh substantially against injunctive relief.

Plaintiffs’ remaining claims are unlikely to succeed on the merits, at least in federal court. Their federal procedural due process claim was not presented to the district court and appears to have little merit. Plaintiffs’ state-law claims present jurisdictional concerns that cast serious doubt on their ultimate success in federal court. The Eleventh Amendment bars relief against the governor; it may also bar relief against the local defendants. The state-law claims may also be moot as against the local defendants, and most fundamental, all of the state-law claims appear to be poor candidates for a federal court’s exercise of its supplemental jurisdiction. […]

All told, these concerns about immunity, mootness, and supplemental jurisdiction cast substantial doubt on whether the district court can and should decide the plaintiffs’ state- law claims. These concerns undermine the plaintiffs’ ability to prove likely success on the merits of these claims.