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Suisman Shapiro Attorneys-at-Law
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Recent Victories:Spell, et al. v. Edwards, et al.

Sher Garner was honored to be a part of the team of attorneys that swiftly and successfully defended Governor John Bel Edwards against a misguided challenge to the emergency measures he established to protect the health and safety of Louisianans from the COVID-19 pandemic. The Louisiana Department of Health reported Louisiana’s first presumptive positive case of COVID-19 on March 9, 2020. The number of cases and deaths in Louisiana increased quickly and exponentially. By March 24, 2020, Louisiana was the fastest spreading area of COVID-19 in the United States and, in early April, was recognized as one of the top three hotspots for the disease in the country.

In response to this crisis, the Governor declared a statewide public health emergency on March 11, 2020 and, subsequently, issued a series of executive proclamations that, among other things, closed or limited the activities of certain businesses and limited the size of public gatherings. Ultimately, facing an increasing number of cases and following guidance from the White House and public health authorities, the Governor issued a statewide “general stay-at-home” order to fight the spread of the virus (Executive Proclamation No. 33 JBE 2020). The Executive Proclamation required all individuals to “stay at home, unless performing an essential activity,” which activities included “going to and from an individual’s place of worship.” The Proclamation prohibited groups of ten or more people from gathering in a single place at one time and required social distancing. The Governor later extended the stay-at-home order until April 30, 2020 (Executive Proclamation No. 41 JBE 2020) and again until May 15, 2020 (Executive Proclamation No. 52 JBE 2020).

On May 7, 2020, Pastor Mark Anthony Spell and Liberty Tabernacle Church filed a complaint against the Governor and other governmental officials in the United States District Court for the Middle District of Louisiana.Pastor Spell had openly defied the Governor’s proclamations by continuing to hold in-person church services with more than ten people. Pastor Spell claimed that the proclamations violated his constitutional rights under the First and Fourteenth Amendments of the United States Constitution and also under the Louisiana Constitution, including rights guaranteeing freedom of religion, assembly, and speech. Pastor Spell and his church sought, among other things, to enjoin the enforcement of the executive proclamations against them.

Judge Brian A. Jackson of the Middle District held a hearing on Pastor Spell’s motion for a temporary restraining order and preliminary injunction on May 14, 2020.The following day, Judge Jackson denied the motion, refusing Pastor Spell’s request to enjoin Governor Edwards’s emergency proclamations imposing limits on in-person gatherings due to the COVID-19 pandemic. The district court held that Pastor Spell and his church had sought “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.”In particular, the plaintiffs ignored the “controlling law” in times of a crisis like COVID-19, established by the Supreme Court of the United States over a century ago in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), and reaffirmed recently by the United States Court of Appeals for the Fifth Circuit in In re Abbott, 954 F.3d 772 (5th Cir. 2020)―“all constitutional rights may be reasonably restricted to combat a public health emergency.” The “right to practice religion freely does not include liberty to expose the community . . . to communicable disease. . . .”Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).

In denying the injunction, Judge Jackson expressly found a “substantial relationship” between the occupancy limitations imposed by the Governor’s proclamations and the public health crisis created by the COVID-19 pandemic.The proclamations’ restrictions were “directly intended to limit the contact-based spread of COVID-19.” The district court also recognized that the Governor’s proclamations had not completely prevented Pastor Spell and his church from observing their religious beliefs. The plaintiffs were always “free to hold outdoor services with as many congregants as they would like” and could “fully exercise their rights to assembly” indoors with smaller groups of congregants; “nothing in the orders proscribe[d], inhibit[ed] or regulate[d] the content of their religious speech.”Nonetheless, Pastor Spell chose not to hold services online or outdoors, meet with congregants by phone, online, or in small groups, or explore other ways of continuing to minister to his congregation without disregarding the proclamations and the community’s interests as so many other religious institutions have done.

Pastor Spell and the Life Tabernacle Church failed to prove that their “rights, which are not absolute, outweigh the lives and health of Louisiana’s population” or that “the public interest, the health and lives of the people of Louisiana, is best served by exempting them from the neutral, orders of the Governor.”Judge Jackson not only held that the proclamations “implemented reasonable restrictions on the public’s constitutional rights in the midst of a national pandemic” but also restricted “religious and non-religious gatherings to the exact same extent and degree.” Finally, on May 14, 2020, the day of the injunction hearing, the Governor announced that he would issue a new proclamation lifting the stay-home order, effective May 15, 2020, and implementing Phase 1 of reopening in accordance with guidance from the White House.Under Phase 1, churches may have gatherings at 25% of the State Fire Marshal capacity of their space with sanitation and social distancing. Consequently, the district court also found merit in the Governor’s argument that his issuance of a new proclamation allowing larger gatherings had rendered the plaintiffs’ claim moot.

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