Life Tabernacle Plans Appeal to Supreme Court

By Woody Jenkins, Editor, Central City News — CENTRAL — Life Tabernacle and Rev. Tony Spell are headed to the United States Supreme Court in their quest to get justice as a result of violation of their constitutional rights by Gov. John Bel Edwards during the pandemic.  

The Louisiana Supreme Court has already ruled that Edwards’ efforts to close the church and that the arrest of the pastor by Central police chief Roger Corcoran were “illegal and unconstitutional” — in the words of the court. Now the issue in federal court is whether they are entitled to compensation from Edwards and other defendants.

Edwards has argued that even if the church’s rights to assemble and exercise their freedom of religion were violated, he is immune from personal liability on grounds of “qualified immunity.”

Qualified immunity is based on the antiquated concept in English law that “The king can do no wrong.”  Since we live in the United States and there is no king, the concept has been controversial for a long time.

The U.S. Fifth Circuit Court of Appeals in Fort Worth heard the case of Life Tabernacle & Pastor Tony Spell v. Gov. John Bel Edwards in September.  In an unusual opinion issued in last month, the court held that Life Tabernacle was almost certain to win its case if it had argued that under the First Amendment it was treated more harshly than businesses. For example, since Wal-Mart was allowed to stay open, then the church should have been allowed to stay open, the judge said. However, the church purposely refused to make that argument. The result of that argument would be that if the state closes Wal-Mart, then it would be all right for the state to close the church.  Rev. Spell said that is not the meaning of the First Amendment, and he could never agree to that concept

Instead, the pastor argued the church has the absolute right under natural law and the First Amendment to open its doors and conduct worship services, and the state has no jurisdiction to close the church.

In a letter to supporters, Rev. Tony Spell wrote the following:

“After waiting for 135 days, the U.S. 5th Circuit Court of Appeals has finally rendered a decision in the case of Life Tabernacle & Pastor Tony Spell v. Gov. John Bel Edwards!  As you know, we won the criminal case against us in state court.  This case in Federal court is our civil case against the Governor to hold him personally financially accountable for the damage he did to our Freedom of Assembly as a church, as members of the congregation, and as pastor.”

“However, last Friday, the 5th Circuit ruled against us by a vote of 3-0.  At first blush, that appears a setback, but that is far from true!  It is exactly what we wanted!  It sets up Life Tabernacle to go directly to the U.S. Supreme Court to decide one of the most important cases in history!”  

“There were two arguments we could have made in this case.  The first argument comes from the 14th Amendment to the U.S. Constitution — the “equal protection” clause — which basically says, if you let Wal-Mart and abortion clinics stay open during a pandemic, you can’t close down a church.  The equal protection clause guarantees that people in similar situations are treated the same.  It would have been appealing for Life Tabernacle to use that argument in this case, but it would have been a huge mistake!”

“The second argument — which is the far more powerful argument — comes from natural law and the First Amendment, which says, ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’”

“In our briefs and in our oral argument, Life Tabernacle deliberately avoided making the ‘equal protection’ argument.  Why?  It was clearly a ‘winning’ argument in the sense that the court would have ruled in our favor!  The reason we didn’t use that argument is simple: If our argument is ‘equal protection,’ we are saying that if you close Wal-Mart, you can close the church!

We will never agree to that!”  

“Tying our right to hold worship services to how commercial businesses are treated is like saying the First Amendment does not exist.  Either the First Amendment gives greater protection to churches, or it is of no value at all!  Properly understood, the First Amendment guarantees that the church cannot be closed, even if you close Wal-Mart.”

“In his oral argument before the 5th Circuit, our senior counsel, former Alabama Chief Justice Roy Moore, specifically told the court that we are waiving our claims under equal protection and are making our case strictly on the First Amendment.  During that argument, those of us in the courtroom could tell that the judges of the 5th Circuit were visibly shaken!  They could not believe we were engaging in such folly!  To give up an argument that would clearly give us a decision and likely a large sum of money was beyond their understanding. In their opinion issued Friday, two of the judges made special reference to this!  Circuit Judge Andrew Oldham said, ‘Had Pastor Spell’s counsel not affirmatively waived the Lukumi argument, his victory was all but assured… But, oddly, Pastor Spell’s counsel insisted on taking a loss.’”

“Judge Elrod said during the hearing, Are you going to pass on the win? If the case law is that there is no impregnable barrier between church and state, but the law instead is that you can’t treat religious entities different than other entities, if that is the law in the United States, are you saying that you don’t wish to argue that?  Even if you could argue that and prevail.  Even if we could give you millions of dollars, you’re saying you would forfeit it?”

“Our counsel, Judge Roy Moore, responded that it would not be a win!  The judges on the 5th Circuit Court of Appeals are truly brilliant attorneys, and I don’t want to take anything away from them.  However, we believe that we have solid grounds for the United States Supreme Court to take up this case and reverse their decision.  Let me explain why.”

“Judge Elrod is wrong.  On Feb. 10, 1947, Justice Hugo Black’s majority opinion in Everson v. Board of Education said, ‘The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.’  The case law is clear.  There is still that wall of separation, and the government has no jurisdiction over assembly by a church.’” 

“This is a pure case of Freedom of Assembly.  Think about the facts of the case.  The Governor issued an order saying that church services had to be limited to 10 pthe eople — regardless of the size of building!   As District Judge Fred Crifasi, who handled the case in its early stages, said, ‘You could be in the Superdome, and the limit would still be 10 people!’”  

“The Superdome covers 3.6 acres.  There are 166,000 square feet under roof.  That’s 16,000 square feet per person in a church service there!  That shows the Governor’s order had absolutely nothing to do with public health and safety.   To have 10 people meet in a closet is very different from 10 people meeting in the Superdome.  The Governor’s order was about controlling our citizens and specifically about controlling the church.  He made the church a special class he called ‘non-essential.’  He showed that he was in charge and could order anything he wanted and force compliance — even to the point of violating Freedom of Religion and Freedom of Assembly!  That’s not the rule of law but of man!”

“The Governor’s orders were similar to those of the Chinese Communist Party when it announced a ban on gatherings of 15 or more people in House Churches in China.  Those orders had nothing to do with health or safety — only an attempt to place churches under the control of the Communist state.”

“Gov. John Bel Edwards himself made our case.  Because his decrees did not have anything to do with health and safety, they clearly present to the court the issue of whether his mere whim can allow him to violate Freedom of Assembly.  We submit that Freedom of Assembly is outside the jurisdiction of the state or federal governments — especially given the facts of our case!”

“So our attorney will seek writs from the United States Supreme Court, and we pray that the court will see fit to consider our petition.  Please pray for their intervention in this important case!”

“Meanwhile, please remember that Revolution: America’s Youth Conference is June 28-July 2.  Please make reservations at ltcbr.com and remember this: Conference registration is free.  However, if you register by June 1, you will have lunch free for Thursday, Friday and Saturday.  We love you and appreciate you!  Please continue to support the mission of Life Tabernacle.”