United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1757 STEPHEN CASSELL and THE BELOVED CHURCH, Plaintiffs-Appellants, v. DAVID SNYDERS, et al., Defendants-Appellees. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:20-cv-50153 — John Z. Lee, Judge. ____________________

ARGUED NOVEMBER 12, 2020 — DECIDED MARCH 8, 2021 ____________________

Before WOOD, HAMILTON, and ST. EVE, Circuit Judges. HAMILTON, Circuit Judge. Plaintiffs appeal the May 3, 2020 denial of a preliminary injunction against a now-expired ten- person limit on religious and other gatherings that Illinois im- posed to curtail the spread of the coronavirus. The plaintiffs, a Christian church and its pastor, hold weekly in-person wor- ship services attended by approximately eighty people. Pastor Stephen Cassell suspended these services after he received on March 31, 2020 a “Cease and Desist Notice” from the county 2 No. 20-1757 health department that threatened penalties under Illinois Ex- ecutive Order 2020-10, issued March 20, 2020, if the church continued to host in-person gatherings of ten or more people. Pastor Cassell and The Beloved Church filed this lawsuit on April 30, 2020. They sought a preliminary injunction to stop Governor Pritzker and Stephenson County officials (Sheriff David Snyders and Health Administrator Craig Beintema) and Lena Police Chief Steve Schaible from enforcing the ten- person limit against the church. The plaintiffs contend that the ten-person limit on reli- gious gatherings violated their right to exercise their religion under both the First Amendment and the Illinois Religious Freedom Restoration Act. They also allege that the governor’s executive order violated their due process rights under the Fourteenth Amendment and exceeded the governor’s powers under the Illinois Emergency Management Agency Act and the Illinois Department of Public Health Act. Executive Order 10 prohibited public gatherings of more than ten people, with limited exceptions for certain essential activities, but not religious gatherings. See Ill. Exec. Order 2020-10 §§ 1.3, 1.5, 1.12 (Mar. 20, 2020). Since that order was issued, the exponential spread of coronavirus has caused a global pandemic that rages on. When Pastor Cassell received the notice on March 31, 2020, Illinois was reporting a seven- day average of 637 new coronavirus cases per day. Illinois Coronavirus Map and Case Count, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/interactive/2020/us/illinois-coro- navirus-cases.html. As we write this opinion, Illinois is now reporting thousands of new cases each day. Id. (last visited Mar. 2, 2021). The virus has killed more than 22,000 people in Illinois alone. Id. And across the United States, over 28 million No. 20-1757 3 cases and 514,000 deaths have been confirmed. Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus- us-cases.html?action=click&module=Top%20Stories& pgtype = Homepage (last visited Mar. 2, 2021). The pandemic is ex- pected to continue until vaccines reach a substantial majority of the population. 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 reli- gious gatherings. But on May 29, months before plaintiffs filed their appellate brief, the governor issued Executive Or- der 2020-38, which encouraged a ten-person limit on religious