Two years after the first, fearful days of the COVID pandemic, the Rev. Tony Spell asked the Louisiana Supreme Court on Tuesday to throw out criminal charges over his defiance of Gov. John Bel Edwards' early emergency restrictions.
Spell argues Edwards violated his freedom of religion by ordering the halt of all large public gatherings — including his church services. But attorneys for Edwards and East Baton Rouge Parish District Attorney Hillar Moore III argued Spell willfully broke rules that hundreds of thousands of other Louisiana residents and churches found a way to follow for months.
"People did lots of things in other ways," Darrel J. Papillion, who represented Moore, told the justices in New Orleans on Tuesday.
Since April 2020, Spell has been fighting six misdemeanor counts of violating Edwards' emergency orders. The challenge comes in addition to a separate, unsuccessful legal attack on Edwards' rules in federal court.
Spell's bid to throw out his criminal charges in state district court failed and an appellate court declined to take up the case, leading him to the state's highest court.
The arguments Tuesday offered a snapshot back in time, when far less was known about the virus. Vaccines, which have significantly cut the virus's bite and allowed life to return to some normalcy, were still just a hope.
In those first days, Edwards enacted sweeping stay-at-home orders with strict limits on public gatherings that limited attendance at church and other activities Edwards deemed "non-essential" to no more than 50 and, later, 10 people.
Spell defied those early limits with bravado. He personally challenged Edwards in the news media and continued his practice of busing in hundreds of church members each weekend to his Life Tabernacle Church on Hooper Road.
Jeff Wittenbrink, Spell's attorney, told the justices on Tuesday that, while Edwards' order may have been well-intentioned, it wrongly suspended the First Amendment and violates the U.S. Constitution and state laws protecting religious rights from government limits without narrow tailoring.
"In this country, we don't jail people for holding church," Wittenbrink said.
He told the justices that the charges were the fruit of government surveillance from neighboring properties and power poles. He said his client could face more than a year in prison time were he convicted on all six counts and given the maximum time for each.
Since those early days, Spell has found common cause with opponents of pandemic-related restrictions, including schools and businesses. He helped inspire protests at the governor's mansion in April and May 2020.
Papillion countered that the prosecution is simply upholding rules that Spell repeatedly proclaimed didn't apply to him and that he defied by holding church in an "unlimited capacity."
"The law is not about one person, whether a pastor or a churchgoer. We are a nation and state of laws," Papillion said.
Amid their arguments, both sides faced some skeptical questioning from the justices: How tough a legal standard did the governor have to meet to enact the orders? Had enough evidence even been submitted to consider Spell's appeal at this point?
Justices Jefferson D. Hughes III and William J. Crain probed the reasons for the state's prosecution of Spell.
Hughes asked why the 11th or 51st church-goer hadn't been charged. Crain asked about the incongruities he saw in emergency rules that allowed people to ride in buses, like Spell's, and go to stores, like Walmart or Lowe's, but not attend church services.
Papillion responded that Spell's flagrant and unrepentant violation of the rules is a big issue in his prosecution. But he also said Spell wasn't being singled out.
Crain shot back, asking if Spell's "defiance (was) just a little too public for y'all?"
"For the law, your honor," Papillion responded. "For the rule of law."
Chief Justice John L. Weimer referred to recent U.S. Supreme Court rulings suggesting the standard that the government had to face in enacting its pandemic restrictions should be looser in the early days of the emergency but could tighten as time passed and more is known about the risks.
Weimer, reading from a high court concurrence, noted that "very blunt rules" could be tolerated in the early days of such an emergency.
Wittenbrink countered that fundamental rights can't be overcome in that way. He urged the state high court to follow the lead of past U.S. Supreme Courts that, after the fact, overturned drastic emergency orders during wartime by Presidents Abraham Lincoln and Harry S. Truman.
"The pandemic is the same. You can't suspend everybody's freedoms," he said.