Balkinization: IL restrictions on political party activities

IL restrictions on political party activities

Jason Mazzone

After the IL Governor lifted COVID-related restrictions on religious gatherings, the Illinois Republican Party sued, claiming that by continuing to prohibit political gatherings beyond 50 individuals the state was imposing a content-based restriction that violated the First Amendment. Rejecting the Republican Party's motion for a TRO, the district court found that strict scrutiny applied but that the state was likely to prevail. The court reasoned as follows:

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. See Doc. 3-1 at 12. However, the Constitution does not accord a political party the same express protections as it provides to religion. See U.S. Const. amend. I. And by statute, Illinois has undertaken steps to provide additional protections for the exercise of religion. See 775 Ill. Comp. Stat. 35/15. 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.

This reasoning makes little sense. First, the court's claim about what the First Amendment does and does not protect is wrong. The First Amendment protects a right of assembly that easily covers a meeting of members of a political party. The district court's claim that political expression can be neatly distinguished from religious expression because the First Amendment does not expressly refer to political parties is unpersuasive. The First Amendment doesn't refer to church services either but the district court doesn't doubt they are protected gatherings under the religion clauses.

Second, the district court's conclusion that IL has acted in the least restrictive manner because it has only exempted from regulation the one form of expression that IL statutory law specially protects also fails. That approach means the state can say: we are treating religious expression more favorably than other expression because we treat religious expression more favorably than other expression. Strict scrutiny, though, requires a justification that is independent of the challenged classification itself.

Perhaps there are valid reasons under the First Amendment for IL treating political gatherings less favorably than religious gatherings. In denying the TRO the district court didn't explain them.

Update: The 7th Circuit panel that denied the plaintiffs' emergency application did no better than the district court. In a short order issued on July 3, the panel wrote:

[T]he adoption of an exception that recognizes the constitutional status of the right to free exercise of religion does not automatically run afoul of the rule in Reed [v. Town of Gilbert, 576 U.S. 155 (2015)]. The First Amendment already protects the right to freedom of speech and freedom of association. Using the normal canons of interpretation, we would not expect the Free Exercise Clause to be surplusage—it must be doing more work. See Orgone Capital III, LLC v. Daubenspeck, 912 F.3d 1039, 1047 (7th Cir. 2019) (citing ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 176 (2012)). Our recent opinion in Elim Romanian Pentecostal Church v. Pritzker, 20-1811, 2020 WL 3249062 (7th Cir. June 16, 2020) (Elim II), holds that the governor did not even have to accommodate religion in this way. But Elim II does not hold that he was forbidden from doing so. Accordingly, the plaintiffs are unlikely to succeed on the merits.

Reed involved a church's challenge to a local ordinance that banned display of outdoor signs without a permit but exempted from the requirement 23 categories of signs (though not religious signs). The Supreme Court struck down the ordinance as an impermissible content-based regulation. Reed surely does not stand for the proposition that government may permit only religious speech.

As for surpulsage, there is a case to be made that each provision of the Constitution is there for a reason (even if the law clerk who dug up Orgone Capital, involving filing requirements in the Illinois securities statutes, here failed the research assignment). But in arguing that the Free Exercise Clause gives religious gatherings extra special status the circuit panel doesn't seem to have read the entire First Amendment: political gatherings are protected as assemblies as well as as venues for speech (and the speech clause-derived right of association).

Let's hope for some better analysis as the case proceeds.

Posted 2:43 PM by Jason Mazzone [link]