Justices Question Gov. Edwards’ Decrees

By Woody Jenkins, Editor, Central City News — CENTRAL — Rev. Tony Spell of Life Tabernacle Church in Central finally had his day in court Tuesday, March 22, two years after he was arrested on charges of holding worship services in violation of the orders of Democratic Gov. John Bel Edwards.

The Louisiana Supreme Court spent nearly an hour hearing arguments on the pastor’s Motion to Quash the criminal charges against him.  If the governor was expecting the case against Rev. Spell to be a slam duck, the hearing showed him to be mistaken. Four of the seven justices seemed concerned the pastor’s religious liberty was violated.

Each side was given 20 minutes to make its case. Jeff Wittenbrink, attorney for Rev. Tony Spell, led off with a brief history of Life Tabernacle and the fact that Rev. Spell and his grandfather had held church services continuously for the past 63 years. He recounted that the governor tried to stop the services and that the pastor was arrested, put in jail, and placed under house arrest in order to prevent him from holding church. Nevertheless, the pastor continued holding church and never missed a service.

Wittenbrink said, “In America we don’t jail people for holding church!”  Paraphrasing the United States Supreme Court, he said the First Amendment is not suspended during a pandemic. 

Rev. Spell’s attorney focused on the state’s violation of the Equal Protection Clause, saying that the pastor was ordered not hold church but shopping centers, malls and retail giants like Target and Walmart were allowed to pack in thousands of people.

Baton Rouge attorney Darrel Papillion, speaking on behalf of District Attorney Hillar Moore,  asked the court to allow the governor’s attorney, Matthew Block, to have five of his 20 minutes. Jeff Wittenbrink objected to Block speaking because the governor was not a party in the case and had only filed an amicus brief. Nevertheless, Chief Justice John Weimer allowed Block to speak. 

During Papillion’s argument, the justices began to ask more and more questions. Chief Justice Weimer seemed to side with the governor and repeatedly made the point that people needed to go to Walmart for cleaning supplies and food. Wittenbrink pointed out that a great many businesses were allowed to stay open that had nothing to do with food or cleaning supplies, such as office buildings and malls. 

The court’s newest member and only Democrat, Justice Piper Griffin repeated Weimer’s argument about access to food and cleaning supplies. However, Wittenbrink said those arguments were rejected by the US Supreme Court in the Tandon case and Catholic Diocese of Brooklyn cases, which said neither California nor New York could limit the number of people attending church services.

Wittenbrink pointed out that the Religious Liberty Statute in Louisiana made restrictions on religious liberties subject to strict scrutiny, a concept that makes it very difficult to impose regulations on religious activities. The state must show that it has a compelling reason for its regulation and is using the least restrictive means to achieve its goal. 

Papillion seemed to give away a major piece in the state’s case by admitting that the governor’s regulation of religious activities probably should be subject to strict scrutiny. The chief justice tried to talk Papillion out of that position but Papillion said that while proclamations would be subject to strict scrutiny, he believes that standard was met.

Papillion repeatedly referred to the governor’s proclamations as “the law,” but Wittenbrink said they were not.  Statutes passed by the legislature have a presumption of constitutionality, but a proclamation by the governor does not, he said.

The chief justice said that in the early days of the pandemic, public officials might be excused if they failed to craft precise rules that draw fine distinctions.  However, Rev. Spell’s attorney, Jeff Wittenbrink, said, “When you are dealing with fundamental rights such as the First Amendment, you must use the highest standards.”

Darrel Papillion, attorney for DA Hillar Moore, said, “Rev. Spell made it clear the rules didn’t apply to him. You heard counsel say he would bus people into church.”

Justice Jeff Hughes said, “These people are not forced to ride the bus to church. Is the pastor responsible if someone wants to ride the bus?”

Justice Will Crain said, “You mentioned people being bused to church, but didn’t the rules say that people had the right to go to and from church? So there’s nothing wrong with people riding the bus to church but they can’t walk through the church door?”

Since Rev. Spell never had a trial, no evidence has been submitted in the case.  Since the Supreme Court is a court of appeal, not a trier of facts, the justices debated whether they had enough evidence to decide the Motion to Quash.  However, both Rev. Spell’s attorney and the attorney for the state agreed that judicial notice could be taken of the Governor’s Proclamations, which were attached to the pleadings.  That seems to be a victory for Rev. Spell, because the appeal is based on matters of law, and the Proclamations allow an examination of the powers being claimed by the governor.

Papillion said, “The District Attorney is looking for guidance from the court.  Are we to pursue a prosecution in this case.  If not, we don’t want to do that.”

When asked which is greater, the free exercise of religion or the right to go to Walmart, Papillion said, “In fairness, the free exercise of religion trumps the right to go to WalMart.”

Justice Jay McCallum said, “One of my constituents said living during the pandemic was like waking up in the middle of the Twilight Zone.”  He said it is amazing the legislature has not addressed this issue and put the proclamations into law. “I don’t know what to make of that,” he said.

When Justice Will Crain asked Darrel Papillion why Rev. Spell was targeted, Papillion said, “He was unrepentant and blatant!”  Crain followed up by asking, “Was his defiance a little too flagrant?”

Papillion said, “It was not a mistake or something a little talking could change.”  Justice Hughes said, “Defiance is not in the record.”

To the argument that the state should be allowed some latitude at the start of the pandemic, Justice Crain said, “I’m curious as to circumstances where you have freedom of religion involved. Is that something on a sliding scale?’

Justice Scott Crichton asked, “Isn’t it significant that this is a criminal case?’

On his rebuttal, attorney Jeff Wittenbrink said, “The Religious Liberty Act requires strict scrutiny.  There is no way to get out of it in this case.”

Justice Crain said, “The other cases were about damages.  This is about liberty.” However, Chief Justice Weimer said he had reservations.

Papillion said different churches continued to worship in different ways.  The chief justice said, “Isn’t this really about time and place?’

Jeff Wittenbrink replied, “Correct but if the state tells you how to hold church, that’s an establishment of religion.”

As the hearing was concluding, Chief Justice Weimer said, “Have you ever heard that if you swing first, you’re not entitled to hit someone else in the face?’

Wittenbrink replied, “You can’t assume that people in church are stupider than people in the WalMart or that church people won’t take the same precautions as people in an office building or at Lowe’s. You can’t assume that people in church won’t do what they should do.”

Reviewing the abusive rules of the pandemic, Jeff Wittenbrink said, “We’ve had pandemics before but we never quarantined well people!”

“This court is the place where constitutional freedoms are upheld,” he said.

“During the Civil War, Lincoln thought it was essential to suspend the writ of habeas corpus. But after the war, the Supreme Court said no, it was not proper.  During the Korean War, the President seized the steel mills, but the Supreme Court said no, you can’t violate the Constitution.  The pandemic is the same.  You can’t suspend everybody’s freedom!”

During the hearing, supporters of Rev. Spell were waiting in front of the Supreme Court building at 400 Royal Street in New Orleans. They were able to watch the proceedings live on the Supreme Court’s website.  These broadcasts are not archived for the public.  However, the Central City News has preserved a copy, which can be viewed at Central City News on Facebook.  Use the QR code on this page to view it.

When Jeff Wittenbrink emerged from the front of the courthouse, he was joined by Rev. Spell, and they provided a joint news conference, which can be watched by clicking on the QR code below.

Attorney Jeff Wittenbrink said there is no way to know when the court will announce a decision. It could be days or even weeks.

The court could grant the Motion to Quash, which would end the criminal case against the pastor. Or they could deny it, which would send the case back for trial.