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Life Tabernacle Church congregation members demonstrate outside the Governor's Mansion in Baton Rouge, Louisiana, Monday, April 27, 2020, gathered to protest what they call unfair treatment of their church pastor Tony Spell, who is on house arrest since Saturday after refusing to tell 19th Judicial District Court Judge Fred Crifasi whether or not he would continue to hold religious services, despite Gov. John Bel Edwards' coronavirus stay-at-home order regarding large gatherings. Spell held service again in his church Sunday, leaving his house to do so.

A federal appeals court ruled Thursday that Central pastor Tony Spell's lawsuit against the governor, which claimed Louisiana's social distancing requirements violated his constitutional rights, is moot because a stay-at-home order has expired. But one judge cautioned that the state is treating churchgoers and protesters differently under the First Amendment and that crowd restrictions might not survive a later challenge.

Weeks after limiting how many people could attend church services, such as at Spell's Life Tabernacle Church, because of the risk of spreading the coronavirus, Gov. John Bel Edwards openly encouraged protesters following the death of George Floyd at the hands of Minneapolis law enforcement. While agreeing Spell's lawsuit was moot Thursday, U.S. Circuit Judge James Ho wrote in a concurring opinion that the state's social distancing restrictions seem inconsistent.

"At the outset of the pandemic, public officials declared that the only way to prevent the spread of the virus was for everyone to stay home and away from each other. They ordered citizens to cease all public activities to the maximum possible extent — even the right to assemble to worship or to protest," Ho wrote. "In recent weeks, officials have not only tolerated protests — they have encouraged them as necessary and important expressions of outrage over abuses of government power." Churches are currently limited to 50 percent capacity under the state's reopening policy.

"For people of faith demoralized by coercive shutdown policies, that raises a question: If officials are now exempting protesters, how can they justify continuing to restrict worshippers?" Ho wrote. "The answer is that they can't."

Speculating that Edwards might one day tell Spell to simply hold services outside, Ho said the health care industry has not yet declared all open-air events safe, and noted the implications for this upcoming football season.

"Under his logic, the Governor would allow tens of thousands of LSU fans to assemble this fall under the open sky at Tiger Stadium, while forbidding countless others from cheering on the Saints under the Superdome," Ho wrote in a footnote.

The judge, appointed by President Donald Trump in 2017, said he had no doubt that Edwards' crowd size restrictions came out of a genuine public health concern, but the judge said Edwards, in essence, gave protesters a choice of whether to listen to public health experts while mandating such compliance of worshipers.

"The First Amendment does not allow our leaders to decide which rights to honor and which to ignore," he wrote. "Freedom for me, but not for thee, has no place under our Constitution."

The judge concluded that "none of this is to say that Pastor Spell and his parishioners should ignore the advice of health experts. But the same is true for the protestors. No doubt many other Louisianans would have protested too, but for the advice of health experts."

Spell drew international attention during the spring after refusing to comply with Edwards' orders limiting crowd sizes, especially after his defiance resulted in his arrest. The pastor argued Edwards' stay-at-home order violated his First Amendment rights to freedom of worship and freedom of assembly.

U.S. District Judge Brian Jackson in Baton Rouge dismissed Spell's lawsuit, saying Edwards had the authority to issue emergency directives reasonably tailored to severe public health threats. Jackson said Spell and his church seemed to be seeking "recognition of their constitutional rights in a vacuum, curiously paying no heed to the pandemic that has spread across the entire nation in a matter of mere weeks."

Spell took the case to the 5th U.S. Circuit Court of Appeals in New Orleans.

Edwards' stay-at-home order expired May 15 as Louisiana entered the first phase of reopening, which ended a ban on gatherings larger than 10 people and permitted churches to resume services at up to 25 percent their full capacity. The current rules allow up to 50 percent capacity.

"A Louisiana church and its pastor ask us enjoin stay-at-home orders restricting inperson church services to 10 congregants. But there is nothing for us to enjoin," Circuit Judge Gregg Costa wrote for the unanimous three-judge panel. "The challenged orders expired more than a month ago."

In their opinion issued Thursday, the 5th Circuit judges said there's not sufficient evidence to believe that another stay-at-home order will be issued because "the trend in Louisiana has been to reopen the state, not to close it down."

"To be sure, no one knows what the future of COVID-19 holds," wrote Costa, a President Barack Obama appointee in 2014. "But it is speculative, at best."

Edwards' office didn't comment directly on the judge's comments about how protesters and worshipers are being treated, but the governor's spokeswoman, Christina Stephens, noted the court did not dispute the constitutionality of the stay-at-home order. 

Spell's supporters also held protests of their own in April — at the height of Louisiana's coronavirus pandemic thus far — where hundreds gathered outside the governor's mansion and rallied against the fact that their pastor had been placed on house arrest for refusing to stop conducting massive church services. 

The appeals court ruling came amid growing concern about the impacts of reopening as Edwards warned the public during a news conference Thursday that recent rising case counts are cause for alarm, especially in certain parts of the state. 

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