On May 27, 2020, we noted that two Religious Liberty Lockdown Cases Reach SCOTUS, one from Illinois and one from California. That post has links and excerpts from the respective cases.

Both cases involved allegations that religious groups were treated more harshly under state lockdown orders than secular groups. That has b been a common theme in lockdown litigation.

Illinois effectively capitulated after the Supreme Court filing by abandoning any continuation of the religious restrictions. In its response, Illinois argued the case was moot because it was easing restrictions:

Applicants take issue with the Governor’s Executive Order 2020-32, which prohibits gatherings exceeding ten people, including for in-person religious services, to prevent the transmission of COVID-19. But EO32 will expire by its own terms on May 29, 2020, and the Governor has announced that after that date religious gatherings will no longer be subject to mandatory restrictions; instead, faith leaders will be provided with guidance from the Illinois Department of Public Health regarding best practices to prevent the transmission of COVID-19.1 Accordingly, applicants’ challenge to EO32 is moot.

In their Reply,the religious groups denied the case was moot as a legal matter, since the conduct could recur:

Mere hours before his Response was due in this Court, the Governor announced a sudden change in his 10-person limit on religious worship services (Resp. 1, n.1), after vigorously defending his policy in both lower courts, and having announced barely 3 weeks ago that it would be 12 to 18 months before numerical limits on worship services were lifted (App. 6). What changed? The Governor was summoned to the steps of this Court to give an account. But the Governor’s sudden change has no permanency or force of law, and both his public statements and his new policy strongly signal an impending return to his old ways. Absent a pronouncement from this Circuit Justice, or the Court, there can be no reasonable expectation that the Governor will not once again infringe Churches’ constitutional rights. Thus, this case is not moot, and the prayed for writ of injunction should issue on the merits to restrain enforcement of the Governor’s arbitrary and discriminatory Orders restricting religious worship.

The Supreme Court just issued its Order denying injunctive relief in light of this change, without addressing the mootness argument itself:


The application for injunctive relief presented to Justice Kavanaugh and by him referred to the Court is denied.

The Illinois Department of Public Health issued new guidance on May 28. The denial is without prejudice to Applicants filing a new motion for appropriate relief if circumstances warrant.

This is a win for the Church, and by making the denial without prejudice, the Court made clear that a future application could be made, though an emergency injunction may not we needed at the current time.

The California case is still pending at the Supreme Court, as California has dug in its heels.


SCOTUS: Roberts Joins Liberals To Reject Injunction in California Religious Discrimination Lockdown


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