The First Amendment leads the Bill of Rights and is a key feature of virtually every state’s constitution for good reason: if we cannot be free from government sanction, punishment, or control over the content of our speech and our exercise of religion, we are not really free, and the promise of “liberty” is a hollow one.
Our founders prioritized this core right and fought a war for independence to preserve it. Today, however, one of the greatest threats to this fundamental principle is a breathtaking lack of understanding of it. This was in shocking display last week in arguments at the Louisiana Supreme Court involving the criminal prosecution of a pastor for allegedly violating capacity limits at his church in the early months of the pandemic.
The purported criminal prohibition of permitting more than 50 people to worship in church together during a pandemic is not a law that has ever been enacted by the Louisiana Legislature; it was created by the stroke of the Governor’s pen. Pastor Tony Spell vocalized his dissent over this violation of separation of powers and the free exercise clause and encouraged continued worship –even offering to send church buses to facilitate it.
Spell is not a quiet dissenter. The Governor permitted people in unlimited numbers to go to hardware stores and food courts, but not to gather more than 50 together for worship. The Pastor could, according to the Governor’s order, have bussed people to the local mall (and even lead worship there); but could not bring them to the sanctuary without risking arrest. The Pastor objected – loudly, on television and on social media. It was this part that apparently proved too much for the thin-skinned Governor. So Spell was surveilled by cameras police put up to monitor his church and home and then cited for six misdemeanors, which expose him to up to three years in prison. When Spell filed a motion to dismiss the criminal case against him, the judge refused. A state appeal court acknowledged the Governor’s order fails strict scrutiny, but refused to dismiss the case; so the Pastor appealed higher.
Now the Louisiana Supreme Court must decide whether the Governor’s edict can be the basis to prosecute a governor-created crime of letting too many people into church for worship. One justice perceptively asked why the Pastor – why not the 51st person to come inside? Isn’t that the actual violator? Good question.
Spell, perhaps the most vocal critic of the Governor’s mandates other than Louisiana Attorney General Jeff Landry, was likely the 1st person in the church – not the 51st. The prosecutor’s answer? Because he was “unrepentant.”
Let me say that again: Because the Pastor was “unrepentant” for both engaging in religious worship in concert with others and openly criticizing the governor for acting unconstitutionally, the government came after him, charged him with a crime the governor created, and openly admits it was retaliatory.
To be clear: this did not happen in Russia; it happened in America, the land of the First Amendment.
It is both surprising and disturbing that the prosecutor acknowledged targeting the Pastor for his “unrepentant” speech and/or conduct. What is surprising is the total lack of recognition as the prosecutor admitted the government was retaliating against Spell for being “unrepentant.” Unrepentant how? He criticized government! He invited others to worship! He did it on purpose! He sent buses! (Two justices noted busing did not violate the order, but no one asked if praying on the bus did.)
His crime was being loudly critical of government, exercising constitutionally-protected rights to worship, and pointing out the hypocrisy of punishing prayer services more than food service at a mall. It’s disturbing because all of this at its core is protected speech and conduct. There is also the important and disturbing lack of recognition that the executive branch is creating a new crime, the police are enforcing it, and the judicial branch for almost two years has refused to stop it.
This case from the outset has been an affront to both the state and federal constitutions. It is disheartening to see the prosecution still going on like some Kafka-esque version of The Trial. This should frighten all freedom-loving Americans, regardless of political affiliation. Our democratic republic is no better than a dictatorship if the executive branch can make up crimes, and the police arrest people who an unchecked autocrat decides are insufficiently repentant in refusing to accede to the violation of the rule of law their individual rights. There is no limit to this type of power grab.
All Americans should pay close attention because once lost, the First Amendment will be hard to get back.
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