By Lauraann Wood

Law360 (August 11, 2020, 9:26 PM EDT) -- A Seventh Circuit Judge pushed back Tuesday on Illinois Republicans' claim that they should be exempted from group-size limits like religious gatherings are under Gov. J.B. Pritzker's latest COVID-19 safety order, saying the party isn't comparing apples to apples under the First Amendment.

Counsel for the Illinois Republican Party urged a three-judge panel during oral argument to revive its bid to hold gatherings larger than the 50-person limit set in the latest coronavirus safety order, arguing the exemption for religious gatherings should apply to all protected First Amendment expression. But U.S. Circuit Judge Amy Coney Barrett said the party seems to be comparing its asserted speech rights to a group that has "an additional interest" under the amendment, which is the right to freely exercise religion.

Judge Barrett said she'd be "very concerned" if, for example, the governor's group-size limits exempted movements such as the Black Lives Matter protests that have been conducted while his executive order has been in place, "because then you're talking apples to apples, you're talking political speech to political speech, and it's the same right at issue."

"But here, the exception that's been carved out for churches isn't just speech to speech, it's not apples to apples," she said. "It's speech plus free exercise, against speech."

Daniel Suhr of the Liberty Justice Center argued the party should receive the same exemption as religious groups because both religious and political speech rights "live at the heart of the First Amendment." But Judge Barrett pushed back on that stance, saying the amendment itself treats free speech and free religious exercise "a little bit as apples and oranges" since they're separated into two distinct categories.

"You're in the free speech clause, and free exercise lives at a different part of the First Amendment, albeit overlapping, I grant you," she said.

U.S. Circuit Judge Amy St. Eve said the party's argument leaves the court wondering where it would draw a line distinguishing First Amendment rights about political speech from First Amendment rights "about some other cause."

Suhr argued in response that "it's the governor's job" to draw that line. But U.S. Circuit Judge Diane Wood quickly rebuffed that stance, saying it was the party's job, "since you're the one who's attacking the governor's executive order for not drawling the line that you think should have been drawn."

"You should have some theory of relief," she said.

The Republican party and several other local-level Republican groups launched their suit against Pritzker in June, claiming the governor created an unconstitutional content-based limit on speech when he allowed religious gatherings to exceed the 50-person limit under his June 26 coronavirus safety order. The executive order was the latest in a series he'd entered since March as part of the state's battle against the ongoing pandemic.

A lower court rejected the party's bid for a preliminary injunction that would have allowed it to hold events with more people, such as an Independence Day picnic, saying the party had a "less than negligible" likelihood of succeeding on the merits its claims.

Assistant Attorney General Priyanka Gupta urged the panel to affirm the lower court's ruling. U.S. Supreme Court precedent has long held that "when the government removes a burden from religious exercise, it need not accommodate other rights or activity in the same way," she argued on the governor's behalf.

The court's review also shouldn't be impacted by the fact that an election is approaching in November, Gupta said. The governor agrees that political speech is an important interest, especially during an election year, "but the Supreme Court has emphasized ... that the protections for fundamental rights do not need to march in lockstep," she argued.

The court could consider the approaching election in its review, but balancing all of the harms at issue would still weigh in favor of denying the party's injunction request, Gupta told the panel.

For example, the political groups can still meet in groups of up to 50 people, "so we're not prohibiting their speech completely but rather just limiting in-person gatherings," she said. Plus, the risk to public health grows with each added exemption to the governor's limitations, she said.

"There's still a lot we don't know about this virus, but what we do know is that the more people that gather, the more the virus will spread," she told the panel.

U.S. Circuit Judges Amy St. Eve, Diane Wood and Amy Coney Barrett sat on the panel for the Seventh Circuit.

The Republican groups are represented by Daniel Suhr and Jeffrey Schwab of the Liberty Justice Center.

The governor is represented by Priyanka Gupta and Sarah Hunger of the Illinois Attorney General's Office.

The case is Illinois Republican Party et al. v. J. B. Pritzker, case number 20-2175, in the U.S. Circuit Court of Appeals for the Seventh Circuit.

--Editing by Breda Lund.

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