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Law360 (March 29, 2021, 8:58 PM EDT) -- The U.S. Supreme Court won't review challenges to Illinois Gov. J.B. Pritzker's order that had limited the size of gatherings during the COVID-19 pandemic and another one that had limited religious gatherings, marking the latest high court actions involving pandemic-era crowd size.
In one Monday decision, the high court denied the Illinois Republican Party's challenge to Executive Order 2020-43, which the party said limited gathering sizes but impermissibly gave leeway to religious assemblies. That executive order has since been superseded by another order, according to Illinois' state website.
The Illinois Republican Party challenge related to a ban on gatherings of more than 50 individuals but that carved out an exception for the free exercise of religion.
Notably, the Republicans argued that the accommodation for religion violated the First Amendment's free speech clause, per their case. Preferential treatment for religious exercise but not for political speech is illegal, the Republicans said.
A lower court declined to preliminarily shut down the measure, and the Seventh Circuit agreed in September.
In another Monday decision, the justices shot down a request from two churches to review their challenge to another Seventh Circuit decision that refused to revive a suit that sought to block a separate Pritzker executive order that limited the size of religious gatherings to help slow the spread of the coronavirus.
The state of Illinois opposed the churches' challenge, arguing that the executive order they challenge expired in May.
In both of the Supreme Court's Monday decisions, the justices didn't give any reason behind the denials.
However, the high court noted that Justice Amy Coney Barrett did not take part in either denial. Barrett had been on the panel that shot down the Illinois Republican Party's appeal while she was still at the Seventh Circuit, according to court documents.
Justice Barrett's appointment to the high court in October, to replace the late liberal Justice Ruth Bader Ginsburg, has given religious groups the conservative Supreme Court majority they need to successfully challenge state limits on church gatherings and other services.
Justice Barrett provided the crucial fifth vote to lift restrictions on the number of people who could attend services at churches and synagogues in Brooklyn, New York, in a decision handed down the night before Thanksgiving. The unsigned per curiam opinion explained that a whole host of secular businesses deemed "essential" by the state did not face the same capacity limits, and that the rules "single out houses of worship for especially harsh treatment."
In late February, the justices ordered California's Santa Clara County to allow indoor church gatherings after a group of churches said the county was acting as an "island of tyranny" by flouting the court's earlier ruling lifting the state's ban on indoor religious services.
Liberty Counsel, which represented the Illinois churches — the Elim Romanian Pentecostal Church and the Logos Baptist Ministries — said in a Monday statement that it would go back to the district court and file a summary judgment motion.
"The pastors and the Romanian churches are resolved to continue to fight for religious freedom," said Mat Staver of Liberty Counsel. "It is time to stop the abuse of the First Amendment once and for all."
Patrick Hughes, president of the Liberty Justice Center, which represented the Illinois Republican Party, said in a statement that it was "disappointed in today's order and will continue to fight to restore and protect constitutional rights."
The Illinois attorney general's office, which is representing the governor in both cases, said that it was happy with the Supreme Court's decisions.
The Illinois Republican Party is represented by Daniel R. Suhr and Jeffrey M. Schwab of Liberty Justice Center.
The churches are represented by Mathew D. Staver, Anita L. Staver, Horatio G. Mihet, Roger K. Gannam and Daniel J. Schmid of Liberty Counsel.
Pritzker is represented by the Illinois attorney general's office.
The cases are Illinois Republican Party et al. v. J.B. Pritzker, Governor of Illinois, case number 20-1081, and Elim Romanian Pentecostal Church et al. v. J.B. Pritzker, Governor of Illinois, case number 20-569, in the U.S. Supreme Court.
--Additional reporting by Hailey Konnath, Celeste Bott and Jimmy Hoover. Editing by Andrew Cohen.
For a reprint of this article, please contact reprints@law360.com.
