State Of Louisiana v. Mark Anthony Spell

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #023
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 13th day of May, 2022 are as follows:
BY Crain, J.:
2021-KK-00876 STATE OF LOUISIANA VS. MARK ANTHONY SPELL (Parish of East Baton
Rouge)
TRIAL COURT JUDGMENT REVERSED. MOTION TO QUASH
GRANTED. SEE OPINION.
Weimer, C.J., dissents and assigns reasons.
Crichton, J., additionally concurs and assigns reasons.
Griffin, J., dissents for the reasons assigned by C.J. Weimer.

S
UPREME COURT OF LOUISIANA
No
. 2021-KK-00876
S
TATE OF LOUISIANA
VS.
MARK ANTHONY SPELL
O
n Supervisory Writ to the 19th Judicial District Court,
Parish of East Baton Rouge
CRAI
N, J.
In this criminal proceeding, we find certain provisions of two executive
orders, as applied to defendant, violate his fundamental right to exercise religion, do
not survive strict scrutiny, and are thus unconstitutional.
FACTS AND PROCEDURAL HISTORY
The defendant is the pastor of a church in Central, Louisiana. On March 31,
2020, he was issued six misdemeanor citations for violating two executive orders
issued by Governor Edwards in response to the COVID-19 pandemic, “Proclamation
Number JBE 2020-30” (Order 30) and “Proclamation Number 33 JBE 2020” (Order
33).1
O
rder 30 was issued on March 16, 2020. In its preamble, the order recognizes
the Governor previously declared a public health emergency due to the threat of
COVID-19, which, as the order also recognizes, has “the ability . . . to spread via
personal interactions.” The preamble explains the outbreak had expanded
significantly and required additional measures to protect public health and safety.
The first of these measures is a restriction on gatherings:
1 Thes e and other COVID -related executive orders are available at the following web
address: https://www.gov.louisiana.gov/index.cfm/newsroom/category/10?si=471. Courts may
take judicial notice of executive orders pursuant to La. Code Evid. art. 202B(1)(a).

2

In an effort to reduce and limit the spread of COVID -19 in Louisiana,
and to preserve the health and safety of all members of the public, all
gatherings of 50 people or more between 12:00 a.m. Tuesday, March
17, 2020 and Monday, April 13, 2020 shall be postponed or cancelled.
This applies only to gatherings in a single space at the same time where
individuals will be in close proximity to one another. It does not apply
to normal operations at locations like airports, medical facilities,
shopping centers or malls, office buildings, factories or manufacturing
facilities, or grocery or department stores. This order does not limit the
ability of a local jurisdict ion or political subdivision from enacting
more restrictive limitations.

See 30 JBE 2020, Section 1 (emphasis in original).
In addition to this gathering limitation, the Governor closed certain businesses
because they presented unacceptable risks to pu blic health and safety, including
casinos, video poker establishments, movie theaters, bars, bowling alleys, and fitness
centers and gyms. See 30 JBE 2020, Section 2. Restaurants, cafes, and coffee shops
had to cease on-premises consumption of food and beverage but could continue take-
out, drive-thru, and delivery services. See 30 JBE 2020, Section 3.
About a week later on March 22, 2020, the Governor issued Order 33. The
preamble recognizes that without additional measures to slow the spread of the virus,
health care facilities throughout the state were at significant risk of being
overwhelmed. The closure or limitation of “non-essential businesses” w as
necessary, in part, “because of the propensity of the COVID -19 virus to spread via
personal interactions.” The Governor tightened the restrictions on gatherings by
prohibiting 10 or more people from being in a single space, but again allowed
exceptions for normal operations at airports, medical facilities, office buildings,
factories or manufacturing facilities, or grocery stores. The excepted businesses no
longer included shopping centers, malls, and department stores. See 33 JBE 2020,
Section 2.
Order 33 also impose d a “stay-at-home order” applicable to “all individuals
within the state of Louisiana,” unless the person was “performing an essential
activity.” See 33 JBE 2020, Section 3. The order defines that phrase to include

3

obtaining food, medicine, and non-elective medical care; going to and from a family
member’s home; engaging in outdoor activity; and “[g]oing to and from an
individual’s place of worship.” Attending or participating in a worship service is not
expressly identified as an essential activity. The order also deems an essential
activity to include travel to and from an individual’s workplace to perform certain
job functions, including anything “otherwise deemed essential worker functions.”
The order then instructs:
Guidance provided by the U.S. Department of Homeland Security,
Cybersecurity & Infrastructure Security Agency (CISA) on what
workers are essential is outlined at
https://www.cisa.gov/idntifying-
critical-infrastructure-during-covid-19.

See 33 JBE 2020, Section 3C.
The referenced guidance is in a document titled “Guidance on the Essential
Critical Infrastructure Workforce: Ensuring Community and National Resilience in
COVID-19 Response.” It is qualified by an introductory memorandum stating,
“[T]his list is advisory in nature. It is not, nor should it be considered to be, a federal
directive or standard in and of itself.” Subject to that disclaimer, the document sets
forth a list of essential workers that spans seven pages and totals 129 job descriptions
in 14 different sectors. Many of the 129 descriptions cover multiple jobs. All of
them, by reference, are excepted from Order 33’s stay-at-home mandate, including
“[a]utomotive repair and maintenance facilities,” “[m]anufacturers and distributors
. . . of packaging materials,” “manufacturing and distribution of animal . . . bedding,”
and “[c]ompany cafeterias.” The extensive list, according to the agency, is subject
to change: “CISA will continually solicit and accept feedback on the list . . . and will
evolve the list in response to stakeholder feedback.”
Order 33 also closed more businesses, including all places of public
amusement, personal care and grooming businesses, and all malls except for stores
with a direct outdoor entrance and exit that provided essential services or products.

4

See 33 JBE 2020, Section 4. All other non-essential businesses not closed by this
order and Order 30 were required to reduce operations to minimize public contact
and were subject to the 10-person limitation on gatherings. See 33 JBE 2020 ,
Section 5.
These executive orders were issued by the Governor pursuant to the Louisiana
Homeland Security and Emergency Assistance and Disaster Act at Louisiana
Revised Statutes 29:721-39. Any person violating an executive order promulgated
pursuant to that act is subject to a fine of not more than five hundred dollars or
confinement in the parish jail for not more than six months, or both. See La. R.S.
29:724E. Relying on this provision, the state charged defendant with violating
Orders 30 and 33. The bills of information provide little detail other than stating
defendant violated Order 30 on March 17, 2020, (a Tuesday); and twice on March
22, 2020, (a Sunday) at 11:45 a.m. and 6:50 p.m. He is charged with violating Order
33 on March 24, 2020, (a Tuesday); and twice on March 29, 2020, (a Sunday) at
10:00 a.m. and 6:30 p.m. Although the bills of information do not specify which
sections of the orders were violated, it is undisputed defendant continued to lead in-
person worship services in the church’s sanctuary building while each of the subject
orders was in effect. It is also undisputed for present purposes the total attendance
at these services exceeded the gathering limitation in each applicable order.2
The defendant filed a motion to quash the bills of information, arguing the
executive orders violated his fundamental right to free ly exercise religion and are
unconstitutional. The trial court denied the motion, and the court of appeal denied
defendant’s writ application. This court granted a writ of certiorari. See State v.
Spell, 21-00876 (La. 12/7/21), 328 So. 3d 406.

2 The record does not reflect if citations were issued to others in attendance at the worship
services or how authorities determined defendant violated the orders by being at least the 50 th
person (under Order 30) or 10th person (under Order 33) in attendance at a service.

5

DISCUSSION
Although an executive order is under review, we are guided by jurisprudence
governing constitutional challenges to statutes. The determination of the
constitutionality of a statute presents a question of law subject to de novo review.
State v. Webb, 13-1681 (La. 5/7/14), 144 So. 3d 971, 975.
I. Burden of Proof and Fundamental Right of Religious Freedom
The burden of proof is particularly important in this case because limited
evidence was introduced at the hearing in the trial court. Generally, statutes are
presumed constitutional, and the party challenging the validity of the statute bears
the burden of proving it is unconstitutional. State v. Hatton, 07 -2377 (La. 7/1/08),
985 So. 2d 709, 719; State v. Fleury, 01-0871 (La. 10/16/01), 799 So. 2d 468, 472.
However, t his presumption does not apply when a statute infringes upon a
fundamental right. See San Antonio Independent School District v. Rodriguez, 411
U.S. 1, 16-17; 93 S.Ct. 1278, 1288; 36 L.Ed.2d 16 (1973); Dunn v. Blumstein, 405
U.S. 330, 343; 92 S.Ct. 995, 1003; 31 L.Ed.2d 274 (1972); State in Interest of J.M.,
13-1717 (La. 1/28/14), 144 So. 3d 853, 860. In those instances, the state bears a
“heavy burden” of proving the law’s validity under the strict-scrutiny standard. See
Rodriguez, 411 U.S. at 16-17; 93 S.Ct. at 1288; Dunn, 405 U.S. at 343; 92 S.Ct. at
1003. This rigorous standard is imposed because fundamental rights are “so essential
to the structure of our society” and are “deeply rooted in this Nation’s history and
tradition.” See Webb, 144 So. 3d at 978; Washington v. Glucksberg, 521 U.S. 702,
703; 117 S.Ct. 2258, 2260; 138 L.Ed.2d 772 (1997). This court described the state’s
burden of proof as follows:
Where strict judicial scrutiny is required, [the] state is not entitled to the
usual presumption of validity, [and] the state rather than the
complainant must carry a heavy burden of justification[.] [T]he state
must demonstrate its [action] has been structured with precision, and is
tailored narrowly to serve legitimate objectives, and that it has selected
the less drastic means for effectuating its objectives. In meeting this
heavy burden of justification, the state’s role is to present evidence of

6

the compelling nature of the government’s interest served by the
regulation and to demonstrate the restrictions are narrowly tailored to
achieve the asserted interest.

Interest of J.M., 144 So. 3d 860-61 (citations and internal quotation marks omitted).
The fundamental right at issue in this case is the free exercise of religion. The
First Amendment, applicable to the states through the Fourteenth Amendment,
provides that “Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.... ” U.S. Const., Amdt. 1 (emphasis added);
Fulton v. City of Philadelphia, Pennsylvania, 141 S.Ct. 1868, 1876; 210 L.Ed.2d
137 (2021). Article I, Section 8 of the Louisiana Constitution similarly provides,
“No law shall be enacted respecting an establishment of religion or prohib iting the
free exercise thereof.”
The free exercise of religion means the right to believe and profess whatever
religious doctrine one desires. Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872, 877; 110 S.Ct. 1595, 1599; 108 L.Ed.2d
876 (1990). The pursuit of religious liberty was a powerful force driving early
settlers to this continent and remained a powerful force at the time of the founding
of the American republic. See Brett G. Scharffs, The Autonomy of Church and State,
2004 B.Y.U.L. Rev. 1217, 1230 (2004). “Nothing but the most telling of personal
experiences in religious persecution suffered by our forebears could have planted
our belief in liberty of religious opinion any more deeply in our heritage.” Schoo l
District of Abington Township, Pennsylvania v. Schempp , 374 U.S. 203, 214; 83
S.Ct. 1560, 1567; 10 L.Ed.2d 844 (1963) (citation omitted). James Madison, who
was instrumental in drafting the First Amendment, viewed religious liberty as “the
fundamental freedom.” See Mark E. Chopko, Michael F. Moses, Freedom to Be A
Church: Confronting Challenges to the Right of Church Autonomy , 3 Georgetown
Journal of Law and Public Policy 387, 402 (2005) . Similarly, Thomas Jefferson
believed religious freedom to be the “most inalienable and sacred of all human

7

rights.” Id. at 402 -03. As expressed by one Supreme Court justice almost two
centuries later, “[N]o liberty is more essential to the continued vitality of the free
society which our Constitution guarantees than is the religious liberty.” Sherbert v.
Verner, 374 U.S. 398, 413; 83 S.Ct. 1790, 1799; 10 L.Ed.2d 965 (1963) (Stewart, J.,
concurring). This most sacred right to freely exercise one’s religion is both
fundamental and inalienable. See La. Const. art. I, §1. Nevertheless, it is subject to
government regulation under precisely defined circumstances.
II. Regulation of Religious Acts: Neutral Laws of General Applicability and
Effect of Exemptions for Comparable Secular Activity

The First Amendment excludes all government regulation of religious beliefs.
Smith, 494 U.S. at 877; 110 S.Ct. at 1599. The exercise of religion , however,
involves “not only belief and profession but the performance of (or abstention from)
physical acts: assembling with others for a worship service, participating in
sacramental use of bread and wine, proselytizing, and abstaining from certain foods
or certain modes of transportation.” Smith, 494 U.S. at 877; 110 S.Ct. at 1599. The
“Free Exercise Clause” thus embraces two concepts: freedom to believe and freedom
to act. Cantwell v. State of Connecticut, 310 U.S. 296, 303- 04; 60 S.Ct. 900, 903;
84 L.Ed. 1213 (1940). The first is absolute, but the second is not. Id.
A law that substantially burdens the free exercise of religion violates the First
Amendment. See Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136,
2148, 104 L.Ed.2d 766 1989); Thomas v. Revie w Bd. of Indiana Employment
Security Div., , 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981); Wisconsin v.
Yoder, 406 U.S. 205, 220; 92 S.Ct. 1526, 1536; 32 L.Ed.2d 15 (1972); Sherbert v.
Verner, 374 U.S. 398, 403; 83 S.Ct. 1790, 1793; 10 L.Ed.2d 965 (1963). This
standard, sometimes called the “ Sherbert test,” was applied by the Supreme Court
for almost 30 years to determine whether government action was subject to strict
scrutiny under the Free Exercise Clause. In Smith, however, the Supreme Court held

8

that, regardless of its burden on religious exercise, a law that is “neutral” and
“generally applicable” does not violate the Free Exercise Clause and is not subject
to strict scrutiny. See Smith, 494 U.S. at 878-80; 110 S.Ct. at 1600. If prohibiting
the exercise of religion is “merely the incidental effect of a generally applicable and
otherwise valid provision, the First Amendment has not been offended.” Smith, 494
U.S. at 878; 110 S.Ct. a t 1600. Smith effectively carved out an exception to the
Sherbert test that allows restrictions on religious liberty that previously may not have
survived strict scrutiny. After Smith, under the federal jurisprudence, a law
burdening religious exercise is subject to strict scrutiny only if it is not neutral and
generally applicable. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 546; 113 S.Ct. 2217, 2233; 124 L.Ed.2d 472 (1993).3
A government regulation burdening religious exercise is not neutral and
generally applicable if, by granting exemptions, it treats any comparable secular
activity more favorably than religious exercise. See Fulton, 141 S.Ct. at 1877;
Tandon v. Newsom , ___ U.S. ___, ____; 141 S.Ct. 1294, 1296; 209 L.Ed.2d 355
(2021) (per curiam); Roman Catholic Diocese of Brooklyn v. Cuomo, ___ U.S. ___,
141 S.Ct. 63, 66-67; 208 L.Ed.2d 206 (2020) (per curiam). As Smith recognized, a
law may violate the Free Exercise Clause and trigger strict scrutiny if “the State has

3 Smith, authored by Justice Scalia, is cited frequently herein because it is the prevailing
interpretation of the Free Exercise Clause by the Supreme Court. As noted above, the Louisiana
Constitution has a Free Exercise Clause with nearly identical language. In applying our state
constitution, we are not bound by the Supreme Court’s interpretation of the similar language in the
First Amendment. See State v. Perry, 610 So. 2d 746, 755 (La. 1992). We further note that Smith
is not without controversy. In response to the decision, federal and state legislatures enacted laws
purporting to restore the Sherbert test (“substantial burden”) to Free Exercise challenges of “a rule
of general applicability.” See 42 U.S.C. §2000bb1- 4 (held unconstitutional as a violation of
separation of powers in City of Boerne v. Flores , 521 U.S. 507, 536; 117 S.Ct. 2157, 2172; 138
L.Ed.2d 624 (1997)) ; see also La. R.S. 13:5232- 42. Like the federal act, the Louisiana statute
purports to require strict-scrutiny of any government action substantially burdening the exercise
of religion, “even if the burden results from a facially neutral rule or a rule of general applicability.”
La. R.S. 13:5233. While Smith continues to be controversial, see Fulton, 141 S.Ct. at 1882- 1931
(Barrett, J., concurring; Alito, J., concurring) , its departure from Sherbert is not determinative in
this case because we find the subject orders are not neutral and generally applicable. Strict scrutiny
thus applies under both Smith and Sherbert. Because we apply the strict scrutiny standard, we
pretermit consideration of whether La. Const. art. I, Sec. 8 should be construed in accordance with
Smith’s interpretation of the First Amendment , and whether the degree of judicial scrutiny
applicable to a constitutional challenge of state action can be legislatively mandated by statute.

9

in place a system of individual exemptions” from the law. Smith, 494 U.S. at 884;
110 S.Ct. at 1603. If the statute grants exemptions, the government “may not refuse
to extend that system to cases of religious hardship without compelling reason.”
Smith, 494 U.S. at 884; 110 S.Ct. at 1603 (internal quotation marks omitted). It is
not sufficient for the state to point out that it treats some comparable secular
businesses or other activities as poorly as or even less favorably than the religious
exercise at issue. Tandon, 141 S.Ct. at 1296. Rather, once a state creates any favored
class of business, the state must justify why houses of worship are excluded from
that favored class. Roman Catholic Diocese , 141 S. Ct. at 73 (Kavanaugh, J.,
concurring); see also Church of the Lukumi, 508 U.S. at 537; 113 S.Ct. at 2229.
Whether two activities are comparable for purposes of the Free Exercise
Clause must be judged against the asserted government interest that justifies the
regulation at issue. Tandon, 141 S.Ct. at 1296; Roman Catholic Diocese, 141 S.Ct.
at 67. The government interest at issue in Tandon and Roman Catholic Diocese, as
in the present case, was reducing the spread of COVID-19. I n th is context,
comparability is concerned with the risks of exposure posed by various activities,
not the reasons why people gather. Tandon, 141 S.Ct. at 1296.
In Tandon the Supreme Court reviewed a California state order limiting
private gatherings to three households. Tandon, 141 S.Ct. at 1294. Plaintiffs
asserted th is limitation violated their right to free ly exercise religion because it
prevented them from holding in- home Bible studies and communal worship with
more than three households in attendance. The Supreme Court observed the
executive order did not place the same gathering limitation on some comparable
secular businesses and activities, such as hair salons, retail stores, personal care
services, movie theaters, private suites at sporting events and concerts, and indoor
restaurants. Tandon, 141 S.Ct. at 1297. The Court further noted the court of appeal,
which ruled against plaintiffs, did not expressly find th ose comparable activities

10

posed a lesser risk of virus transmission than applicants’ proposed religious exercise
at home. Id. Instead the lower court erroneously rejected these comparable activities
because they involved gatherings in public buildings and not private homes.
Precautions used in public venues, according to the court of appeal, might not
“translate readily” to a home. Tandon v. Newsom, 992 F.3d 916, 926-27.
The Supreme Court rejected this rationale, stating: “The State cannot assume
the worst when people go to worship but assume the best when people go to work.”
Tandon, 141 S.Ct. at 1297 (quoting Roberts v. Neace , 958 F.3d 409, 414 (C.A.6
2020) (per curiam) (internal quotation marks omitted). The Court found plaintiffs
would likely succeed on the merits of their claim and granted an injunction pending
appeal, emphasizing:
California’s [order] contains myriad exceptions and accommodations
for comparable activities, thus requiring the application of strict
scrutiny. And historically, strict scrutiny requires the State to further
“interests of the highest order” by means “narrowly tailored in pursuit
of those interests.” That standard is not watered down; it really means
what it says.

Tandon, 141 S.Ct. at 1298 (quoting in part Church of the Lukumi, 508 U.S. at 546;
113 S.Ct. at 2233; some internal quotation marks omitted).
The Supreme Court granted similar relief in Roman Catholic Diocese. There,
the governor of New York issued an executive order limiting attendance at houses
of worship to no more than 10 or 25 people, depending on the classification of the
church’s geographical zone based on virus prevalence. Roman Catholic Diocese ,
141 S.Ct. at 66. The order placed no admission limitations on “essential” businesses,
which included, among others, acupuncture facilities, camp grounds, garages, plants
manufacturing chemicals and microelectronics, and all transportation facilities. Id.
The Court found the order was not neutral or generally a pplicable and,
applying the strict- scrutiny standard, found it “hard to see how the challenged
regulations can be regarded as n arrowly tailored.” Roman Catholic Diocese , 141

11

S.Ct. at 6 7. The order was more restrictive than other regulations previously
reviewed, and there was no evidence applicants contributed to the spread of the virus.
Id. The Court further observed that ot her less restrictive measures could minimize
the risk to those attending religious services, such as determining the maximum
permissible attendance based on the size of the church. Id . While the Court
acknowledged the judgment of public health experts should be respected, it stressed
the Constitution cannot be ignored in times of crisis:
[E]ven in a pandemic, the Constitution cannot be put away and
forgotten. The restrictions at issue here, by effectively barring many
from attending religious services, strike at the very heart of the First
Amendment’s guarantee of religious liberty.

Roman Catholic Diocese, 141 S.Ct. at 68.
Using the analytical framework provided by these cases, we must determine
whether Orders 30 and 33 violated defendant’s fundamental right to exercise religion
by exempting comparable secular activities from the mandated restrictions. If so,
the orders are subject to strict scrutiny, which requires the offensive provisions be
narrowly tailored to achieve a compelling government interest. See Tandon, 141
S.Ct. at 1296, 1298; Roman Catholic Diocese, 141 S.Ct. at 66-67. If that standard is
not satisfied, the provisions are unconstitutional. Id.
III. Review of Executive Orders 30 and 33

The executive orders identify the government interest as the protection of the
public “from the threat of COVID-19.” More specifically, the gathering limits were
imposed “[i]n an effort to reduce and limit the spread of COVID -19 in Louisiana
and to preserve the health and safety of all members of the public.” Similarly, the
stay-at-home order sought to “preserve the pu blic health and safety, and to ensure
the healthcare system is capable of serving all citizens in need.” See 33 JBE 2020,
Section 3. Both orders, however, have numerous exceptions to their mandatory
provisions. Order 30, which prohibited gatherings of 50 or more people, imposed no

12

limitations whatsoever on “normal operations at locations like airports, medical
facilities, shopping centers or malls, office buildings, factories or manufacturing
facilities, or grocery or department stores.” Order 33, which prohibited gatherings
of 10 or more people, recognized most of the same exceptions in Order 30. The
stay-at-home mandate incorporated pages of exceptions for “essential” job
functions, numbering well over 100 and ranging from manufacturing animal bedding
to working in a company cafeteria. More generally, and similar to the order in
Roman Catholic Diocese , the list also includes all jobs supporting or enabling
transportation functions, and all workers involved in chemical manufacturing and
distribution.
We focus first on the exception for gatherings at “office buildings.” The state
has not demonstrated a material difference, nor can we discern any, between the risk
of transmitting the virus in a gathering of people in an office building and a gathering
of people in a church building. Both may involve prolonged gatherings of people in
close proximity. Yet under both executive orders, an unlimited number of people
were allowed to remain in a sin gle conference room in an office building for an
unlimited period of time, all in close proximity, talking, eating, and engaging in any
other “normal operations” of the business. However, if ten of these individuals left
the conference room, walked across the street to a church, and entered an otherwise
empty sanctuary building for a worship service, they were subject to criminal
prosecution for violating Order 33. Similarly, if their job was deemed “essential,”
their presence in the conference room would fall within an exception to the stay-at-
home order; however, their presence in the sanctuary would be criminal. The same
observations can be made for gatherings at other ex empt venues, such as factories
and manufacturing facilities, where people may gather in close proximity to work or
socialize for extended periods of time; and airports, where people are funneled into
crowded boarding gates where they can wait for hours for a flight.

13

The state argues the exempt businesses only involve “consumer interaction . .
. of a transient, in-and -out nature, such as Walmart, Target and Home Depot,
activities posing markedly different risks from the extended more densely packed
environments of churches.”4 The state points to no evidence in the record proving
that someone shopping in a crowded retail store for 45 minutes is less exposed to the
virus than someone safely distanced, but attending church for the same amount of
time. Even assuming that to be the case, there is nothing transitory about prolonged
meetings in an office building, working a shift in a factory, or waiting on a flight in
an airport.
The state point s out the executive orders treat religious organizations more
favorably than many similar secular businesses, such as restaurants and cafes, which
were barred from allowing any on-premises consumption of food or beverages; and
casinos, video poker establishments, movie theaters, bars, bowling alleys, and fitness
centers, which were closed completely. However, “[i] t is no answer that a State
treats some comparable secular businesses or other activities as poorly as or even
less favorably than the religious exercise at issue.” Tandon, 141 S.Ct. at 1296. Strict
scrutiny applies when a government regulation treats any comparable secular
activity more favorably than religious exercise. See Tandon, 141 S.Ct. at 1296;
Roman Catholic Diocese, 141 S.Ct. at 67-68.
The state nevertheless maintains the orders are neutral and generally
applicable and that any holding to the contrary would allow the defendant to
“become a law unto himself” through “professed doctrines of religious belief.” The
state relies on Reynolds v. United States, 98 U.S. 145, 166-67; 25 L.Ed. 244 (1878),
where the Supreme Court held a criminal law barring polygamy did not violate the
religious liberty of a party whose Mormon faith permitted such marriages. To allow

4 In an amicus curiae brief, the governor makes a similar argument. For simplicity, the state
and governor will be collectively referred to as the “state” when their arguments are detailed
herein.

14

an exception to the blanket prohibition of polygamy, the Court reasoned, “would be
to make the professed doctrines of religious belief superior to the law of the land,
and in effect to permit every citizen to become a law unto himself. Government
could exist only in name under such circumstances.” Reynolds , 98 U.S. at 167.
Similarly in Yoder, 406 U.S. at 215-16; 92 S.Ct. at 1533, the Supreme Court
stated,“[T]he very concept of ordered liberty precludes allowing every person to
make his own standards on matters of conduct in which society as a whole has
important interests.” Citing these cases, the state contends the defendant and his
church must comply with the executive orders “ just as they must comply with the
State’s building, life-safety, and zoning laws.”
The state’s argument misses a crucial point. The defendant does not argue he
is “a law unto himself” or the executive orders violate “his own standards.” What
defendant seeks--and what our Constitution ensures--is that his religious activities
be treated no differently than comparable secular act ivities. D isparate treatment
implicates the Free Exercise Clause. The state’s example illustrates the point. While
the defendant and his church must comply with building codes and zoning laws ,
those same laws apply equally to office buildings, factories, manufacturing facilities,
and airports. Building codes and zoning laws, unlike the executive orders at issue,
do not exclude secular facilities from regulation. We interpret Pastor Spell’s request
not as one for special treatment, but for equal treatment.
The multiple exemptions in the executive orders distinguish this case from
Reynolds and similar cases applying blanket criminal prohibitions. As explained by
one court:
As a rule of thumb, the more exceptions to a prohibition, the less likely
it will count as a generally applicable, non-discriminatory law. At some
point, an exception-ridden policy takes on the appearance and reality of
a system of individualized exemptions, the antithesis of a neutral and
generally applicable policy and just the kind of state action that must
run the gauntlet of strict scrutiny.

15

Roberts v. Neace , 958 F.3d 409, 413 -14 (6th Cir. 2020) (citations and internal
quotation marks omitted).
Orders 30 and 33 contain exemptions allowing certain secular activities to
proceed as normal without limiting the number of people permitted in a single space
at the same time. In many of those gatherings, the risk of spreading the virus appears
no less prevalent than at a comparable gathering in a church. At the very least, the
state offered no evidence proving otherwise. The executive orders grant preferential
treatment only to secular conduct. This disparate treatment “strike[s] at the very
heart of the First Amendment’s guarantee of religious liberty.” Roman Catholic
Diocese, 141 S.Ct. at 68. By granting preferential treatment for comparable secular
activities, the provisions in Orders 30 and 33 prohibiting gatherings over a
designated number of people and imposing a stay -at-home order, as applied in this
case, violate the Free Exercise Clause and are subject to strict scrutiny. See Tandon,
141 S.Ct. at 1296; Roman Catholic Diocese, 141 S.Ct. at 67-68.
IV. Application of Strict Scrutiny Standard
Strict scrutiny is the most rigorous test for determining a law’s
constitutionality. State v. Webb, 13 -1681 (La. 5/7/14), 144 So. 3d 971, 977 -78.
Government infringement of fundamental rights survives strict scrutiny only if the
state proves its action (1) serves a compelling government interest, and (2) is
narrowly tailored to serve that compelling interest. Webb, 144 So. 3d at 978; State
v. Draughter, 13-0914 (La. 12/10/13), 130 So. 3d 855, 862; In re Warner, 05 -1303
(La. 4/17/09), 21 So. 3d 218, 246.
Reducing the spread of COVID-19 is a compelling government interest.
Nevertheless, the state must prove the prohibitions in Orders 30 and 33 are narrowly
tailored to serve that compelling interest. To be narrowly tailored, the law must be
the least restrictive means available to achieve the compelling state interest. See
Ashcroft v. American Civil L iberties Union, 542 U.S. 656, 666; 124 S.Ct. 2783,

16

2791; 159 L.Ed.2d 690 (2004); In re Warner, 21 So. 3d at 253. To meet this burden,
the state must do more than assert that certain risk factors are always present in
worship, or always absent from the perm itted secular activities. Tandon, 141 S.Ct.
at 1296. Instead, narrow tailoring requires the government to show measures less
restrictive of the First Amendment activity could not address its interest in reducing
the spread of COVID -19. Tandon, 141 S.Ct. at 1296-97. Where the government
permits other activities to proceed with precautions, it must show that the religious
exercise at issue is more dangerous than those activities even when the same
precautions are applied. Tandon, 141 S.Ct. at 1297 . Otherwise , precautions that
suffice for other activities suffice for religious exercise too. Id.
The state’s evidence in this case is minimal. It introduced the bills of
information for the criminal charges, the relevant executive orders, and a copy of a
federal district court opinion in a civil proceeding filed by the defendant against the
governor. No witnesses testified. This evidence fails to establish that measures less
restrictive of the First Amendment activity could not address the state’s interest in
reducing the spread of COVID-19. Specifically, the state did not show the religious
exercise at issue is more dangerous than the activities allowed by the executive
orders. See Tandon, 141 S.Ct. at 1297.
The state does not dispute this lack of evidence. Instead, it maintains a lesser
standard of scrutiny or proof should apply given the dire and uncertain circumstances
when Orders 30 and 33 were issued. The state emphasizes the orders were
promulgated “when the pandemic was . . . in its earliest, most uncertain stages, [and]
Louisiana was one of the virus hotspots.” At that time, “there was no known cure,
no universal or even widely -accepted effective treatment, and no vaccine for
COVID-19.” As a consequence, the state ar gues “greater leniency and deference”
should be afforded to state officials in the early stages of the pandemic. On this
basis, the state distinguishes the present case from Tandon and Roman Catholic

17

Diocese, which were decided “many months after [the def endant] was served the
misdemeanor summons” and allegedly under “[v]astly different circumstances.”
The state relies on language in a dissent by Justice Alito from a writ denial in
Calvary Chapel Dayton Valley v. Sisolak, ___ U.S.___; 140 S.Ct. 2603; 207 L.Ed.2d
1129 (2020), which was handed down before Tandon and Roman Catholic Diocese
were decided. In Calvary Chapel, a church challenged an executive order issued by
the governor of Nevada that limited church attendance more severely than admission
to casinos. The lower courts initially denied injunctive relief, and the Supreme Court
denied plaintiff’s writ application.
In a six-page dissent from the writ denial, Justice Alito concluded the plaintiff
was likely to succeed and was entitled to an injunction pending the appeal. In
reaching this conclusion, Justice Alito noted the order at issue was promulgated four
months into the pandemic , not at the beginning of the crises when state officials
faced uncertain circumstances and were often forced to adopt “blunt rules.” Justice
Alito explained:
For months now, States and their subdivisions have responded to the
pandemic by imposing unprecedented restrictions on personal liberty,
including the free exercise of religion. This initial response was
understandable. In times of crisis, public officials must respond quickly
and decisively to evolving and uncertain situations. At the dawn of an
emergency--and the opening days of the COVID –19 outbreak plainly
qualify--public officials may not be able to craft precisely tailored rules.
Time, information, and expertise may be in short supply, and those
responsible for enforcement may lack the resources needed to
administer rules that draw fin e distinctions. Thus, at the outset of an
emergency, it may be appropriate for courts to tolerate very blunt rules.
In general, that is what has happened thus far during the COVID –19
pandemic.

But a public health emergency does not give Governors and othe r
public officials carte blanche to disregard the Constitution for as long
as the medical problem persists. As more medical and scientific
evidence becomes available, and as States have time to craft policies in
light of that evidence, courts should expect policies that more carefully
account for constitutional rights.

18

Calvary Chapel, 140 S.Ct. at 2604-05 (Alito, J., dissenting from writ denial, joined
by Thomas, J. and Kavanaugh, J.).
To be clear, Justice Alito made these observations while concluding the order
at issue likely violated the plaintiff’s religious liberties. Notably, on remand and
after Roman Catholic Diocese was decided, the court of appeal also concluded the
plaintiff would likely succeed on its claim, reversed the district court, and granted
injunctive relief to the plaintiff. See Calvary Chapel Dayton Valley v. Sisolak , 982
F.3d 1228, 1234 (9th Cir. 2020).
We agree that state officials acting on limited information early in the
pandemic may have instituted “blunt rules” that were not “precisely tailored” or
failed to “draw fine distinctions.” Calvary Chapel , 140 S.Ct. at 2605. The
application of such blunt measures, although later shown to be overly broad as more
expertise is gained, should be judged by the information available t o state officials
when the orders were issued. Reasonable reliance on an initial scientific consensus,
even if later proved to be incorrect, can be relevant in determining whether the
government action was “narrowly tailored” based on the information available at the
time.
Here, the state has not identified any such information, or lack thereof, bearing
on the decision to grant preferential treatment to secular gatherings while denying
that treatment to religious gatherings. Orders 30 and 33 expressly recognize the
“ability” and “propensity” of “the COVID -19 virus to spread via personal
interactions.” The risk of spreading the virus from personal interactions, as the orders
confirm, was well known at that time. The evidentiary record is devoid of proof that
in March of 2020 public health officials had information indicating unlimited
personal interactions at gatherings in secular venues like office buildings and
airports created less risk of virus transmission than such interactions at gatherings in
a church building. In fact, the orders do not prohibit the continuation of a pre-

19

pandemic routine of an unlimited number of co -workers gathering around a
conference table in an office building for prayer, Bible study, and worship. Those
religious exercises are prohibited only if they occur in a church building. Order 33
also allows unlimited persons to be transported to and from church but prohibit s
unlimited attendance and gathering at church. The state’s disparate treatment of
religious gatherings is simply not supported by any evidence.
It is also difficult to characterize these orders, one that allows for over 100
exemptions, as “blunt” or lacking “fine distinctions.” Both orders crafted
exemptions for a multitude of secular activities. While every exempt job is
important, the state offers no explanation for attributing less importance to the
fundamental right to exercise one’s religion. Our fundamental constitutional rights
are not so numerous to prevent their consideration when constructing restrictions.
The state must be sensitive to their possible infringement.
We further agree that early in this pandemic, state officials had to respond
quickly and decisively to an evolving and uncertain situation. In those early weeks,
authorities did not have the luxury of waiting for therapeutics, vaccines, or additional
expertise gathered from comprehensive studies or revealed by the passage of time .
It was an emergency. State officials had to act quickly and did so in an effort to
curtail one of the greatest public health emergencies ever confronted. We do not
minimize the magnitude of that challenge; nor, with the benefit of hindsight, do we
judge the effectiveness of measures undertaken early in the crisis.
Rather, we are called upon to determine whether some of those actions
violated a party’s fundamental constitutional right. “[E]ven in a pandemic, the
Constitution cannot be put away and forgotten.” Roman Catholic Diocese, 141 S.Ct.
at 68. “Government is not free to disregard the First Amendment in times of crisis.”
Roman Catholic Diocese, 141 S.Ct. at 63 (Gorsuch, J., concurring). We reject any
contention that early in a crisis, the Constitution’s protection of fundamental rights

20

must always yield to the needs of the state to respond to the crisis. A public health
emergency does not relegate the First Amendment to a proposition or allow
violations thereof to be judged on a sliding scale of constitutionality. The
infringement of the fundamental right of the free exercise of religion, whether in
times of crisis or calm, must always be strictly scrutinized by our courts. See
Tandon, 141 S.Ct. at 1296-98; Roman Catholic Diocese, 141 S.Ct. at 68.
Pandemic or not, this court cannot look the other way when the state infringes
upon a citizen’s fundamental right to exercise his religion. “All government
originates with the people, is founded on their will alone and is instituted to protect
the rights of the individual and for the good of the whole.” La. Const. art. I, §1. In
granting power to the government, our citizens not only reserved the right to freely
exercise religion, they instructed this right “be preserved inviolate by the state.” La.
Const. art. I, §1. As judges, w e have no more solemn duty than to protect the
fundamental rights reserved by the people from g overnment overreach. The
prohibitions in the executive orders at issue violate defendant’s fundamental right to
exercise religion. They do not survive strict scrutiny based on the limited evidence
in the record. They are unconstitutional as applied to defendant.
CONCLUSION
The limits on gatherings in executive order 30 JBE 2020, Section 1; and the
limits on gatherings and the stay-at-home mandate in executive order 33 JBE 2020,
Sections 2, 3, and 5 are unconstitutional as applied to the defendant. The trial court
erred in denying the motion to quash. The trial court’s judgment is reversed, and the
motion to quash is granted.
TRIAL COURT JUDGMENT REVERSED; MOTION TO QUASH
GRANTED.

SUPREME COURT OF LOUISIANA
No. 2021-KK-00876
STATE OF LOUISIANA
VS.
MARK ANTHONY SPELL
On Supervisory Writ to the 19th Judicial District Court,
Parish of East Baton Rouge
WEIMER, C.J., dissenting.
Cases such as this provoke discussion of the ever-evolving convergence of law,
politics, policy, science, societal interests, and competing constitutional
considerations.1 As a result, such cases can and often do resonate as matters of
broader significance and sweep than the narrow facts and circumstances under which
the cases arise, with multiple outside interests weighing in on the issues presented,
each side vying to be declared the victor in a contest of competing societal concerns.
In this maelstrom of competing interests, the role of the court must be kept in mind.
That role is not to declare a “winner” or “loser,” but to make reasoned, unbiased
decisions based on the application of the law to the facts before the court. Cases do
not arise and are not decided in a vacuum. Each case must be decided on the unique
facts presented. While in the process of deciding cases, courts must weigh various
considerations dictated by competing constitutional or statutory provisions; that
weighing does not occur in the absence of a factual record informing those
considerations. Such a factual record is missing in this case.
In the district court, the parties relied on legal arguments mostly devoid of a
factual context and did not submit evidence. The factual context is crucial here, as
1 Cf. Cassell v. Snyders, 990 F.3d 539, 550 (7th Cir. 2021).

this case, at its core, is really about one individual’s refusal to comply with an order
that did not allow religious services to be conducted in an unlimited capacity in an
indoor setting, at the very beginning of a global pandemic when, as suggested in
brief, contagion was running rampant and the number of infected individuals was
threatening to overwhelm the state’s healthcare system.
When the contested orders were issued, the record does not reflect (1) whether
or not there was a cure, a viable treatment, or a vaccination for the virus, (2) how
contagious the virus was, (3) who was impacted, (4) how lethal the virus was, or (5)
exactly how the virus was transmitted from one individual to another. The record
does not indicate whether indoor attendance at a church service put congregants and
others at risk of getting the virus and, in turn, spreading the virus beyond the
congregation. There is no evidence regarding the size or dimensions of the place of
worship involved. Also missing from the record is evidence as to whether the order
was necessary to protect not only the congregants, but others beyond the
congregation. Additionally, the record is devoid of evidence regarding whether
religious services could easily be held outside the church or whether doing so would
reduce the risk of infection and the subsequent spread of the virus to others beyond
the congregation. The record also does not reflect whether the order actually impacts
the establishment of religion or the exercise thereof or whether other religions
promptly pivoted to services outside of gathering congregations inside churches.
There is no record evidence indicating whether religious services and religious beliefs
were actually impacted or whether the sites were regulated solely to suppress the
disease that was spreading unabated in “super spreader events” and “community
spread events” (language first heard during the pandemic).
2

As a court of record, this court does not evaluate witnesses live and is limited
to reviewing the record created in the trial court through testimony and the
introduction of evidence.2
Timing and context are key to weighing and assessing the emergency orders
contested in this case, for as several justices of the United States Supreme Court have
cautioned, at the outset of an emergency, when time, information and expertise are
in short supply, those public officials responsible for responding to the emergency
may lack the resources needed to craft rules that draw fine distinctions, and, as a
result, it may be appropriate for courts to tolerate blunt rules of temporary duration.
Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 2603, 2604-05 (2020) (Alito,
J., dissenting from writ denial, joined by Thomas, J. and Kavanaugh, J.). Here, rather
than introduce evidence as to the timing, conditions, and circumstances that informed
the emergency orders, the parties relied on newspaper accounts referenced in briefs.3
In the absence of an evidentiary record, the majority opinion takes the position
that if any exceptions whatsoever were carved out from the orders, then strict scrutiny
is warranted, and it was the State’s burden to establish that the orders were narrowly
tailored. However, this position ignores the circumstances under which the orders
were issued and, instead, holds the emergency orders to a standard of scrutiny that has
thus far only been applied by the Supreme Court at a much later stage in the pandemic
and at a time with much greater evidentiary knowledge. See and compare, Tandon
2 “Appellate courts are courts of record and may not review evidence that is not in the appellate
record, or receive new evidence.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143 (La. 5/21/08), 983
So.2d 84, 88. Evidence not properly offered cannot be considered even if it were physically placed
in the record. See id.
3 During oral argument, the attorneys were asked if they would be willing to jointly stipulate to the
validity and efficacy of the newspaper articles. That query provoked smiles, but no stipulations were
forthcoming.
3

v. Newsom, 141 S.Ct. 1294 (2021); Roman Catholic Diocese of Brooklyn, New
York v. Cuomo, 141 S.Ct. 63 (2020).4
Such strict scrutiny is, in my view, not warranted here, especially when there
is no evidence establishing whether religious worship, religious practices, and the
exercise thereof were actually impacted if moved to either virtual or outdoors
services, as other churches did.
Similarly, in furtherance of the argument that the emergency orders were not
neutral and of general applicability so as to require a strict scrutiny analysis, no
evidence as to the capacity of the defendant’s church and the particular activities
conducted therein and as to the capacities and activities permitted at the essential
businesses that were excluded from the emergency orders was introduced. Rather,
arguments that secular activities were treated more favorably was just that–arguments
void of any factual support.5
4 The emergency orders at issue in his case were issued in March of 2020. By contrast, the
challenged order in Roman Catholic Diocese was issued in October 2020, and an extensive
evidentiary record was developed in that case. Roman Catholic Diocese of Brooklyn, New York
v. Cuomo, 495 F.Supp.3d 118 (E.D. NY 10/16/20). Similarly, the orders in Tandon arose during
the “third wave” of Covid to hit California, and the challenge lodged was to portions of orders in
effect as of March 30, 2021. Tandon v. Newsom, 517 F.Supp.3d 922 (N.D. Cal. 2/5/21).
5 The primary function of government is to provide for the general welfare and protection of its
citizens. Freedoms related to religion, speech, press, assembly, and to petition the government for
redress of grievances are enshrined in the very first amendment to the United State Constitution (see
U.S. Const. amend. I) and are precious and fundamental to the foundation and continued viability
of this nation. The Louisiana Constitution has similar protections. See La. Const. art. I, §§ 7-9. The
preamble of the Louisiana Constitution recognizes:
We, the people of Louisiana, grateful ... for the ... religious liberties we enjoy,
and desiring to protect individual rights to life, liberty, and property ... [and] promote
the health, safety, education, and welfare of the people ....
Therefore, the government is charged with balancing the need to protect the general welfare and
health of citizens, while preserving those precious freedoms addressed in this case. However,
constitutional rights are not absolute, as indicated by U.S. Supreme Court Justice Oliver Wendell
Homes, Jr., who stated: “free speech would not protect a man falsely shouting fire in a theater and
causing a panic.” Schenck v. U.S., 249 U.S. 47, 52 (1919). A similar adage reflects that
constitutional rights are not absolute: “Your liberty to swing your fist ends just where my nose
begins.” The fact the virus is spread through respiratory droplets that enter the body when breathing,
makes the quote particularly apropos. Although variously attributed to “quote magnets” such as
4

As demonstrated, the proper application of the law is contingent on facts that
are missing from this record, necessitating, in the interests of justice, a remand to
allow the parties to develop a factual record in the district court. Until the facts are
developed, the law cannot be accurately applied.
In sum, the resolution of this matter transcends the case immediately before the
court and requires the difficult balancing of the authority of the executive branch to
take steps to protect the public at the outset of an unpredictable and novel virus that
quickly spread throughout the world, causing death and disability, against the impact
on religious freedom to gather inside a church for services. In striking this balance,
all relevant facts as existed at that time must be evaluated, without the clarity that
hindsight and present-day circumstances provide.
Thus, I very respectfully dissent and would remand this matter to the district
court for the introduction of evidence.
Holmes, John Stuart Mill, or Abraham Lincoln, others attribute the quote to those promoting
Prohibition. See quoteinvestigator.com. Although citizens are generally free to live as they please,
their actions cannot adversely impact others.
5

1
S
UPREME COURT OF LOUISIANA
No
. 2021-KK-00876
S
TATE OF LOUISIANA
VS.
MARK ANTHONY SPELL
O
n Supervisory Writ to the 19th Judicial District Court, Parish of East Baton
Rouge
C
richton, J., additionally concurs and assigns reasons:
I
agree with the majority finding that the emergency proclamations were not
narrowly tailored sufficient to survive the strict scrutiny standard applicable to the
state’s restrictions on defendant’s free exercise of religion. I write separately to
highlight that while the issue presented is substantial and thus warrants this Court’s
attention, a better -developed record would have aided our review of this matter
significantly. Instead, the Court was required to take judicial notice of key issues
before us, including whether the state’s interest was compelling. Weaver v. United
States, 298 F.2d 496, 498 (5th Cir. 1962) (“Judicial notice may be taken of facts
known at once with certainty by all the reasonably intelligent people in the
community without the need of resorting to any evidential data at
all. Judicial notice may be taken without request by a party of such facts as are so
generally known or of such common notoriety with in the territorial jurisdiction of
the court that they cannot reasonably be the subject of dispute.”).
To be clear, both issues of law and fact are appropriate for a district court’s
review of a motion to quash. La. C.Cr.P. art. 537 (“All issues, whether of law or
fact, that arise on a motion to quash shall be tried by the court without a jury.”)
(emphasis added). Where the constitutionality of a statute is challenged in a motion
to quash, the parties may be required, as here, to present evidence to challen ge or

2

defend its validity . The state failed to meet its burden in this case, which was
recently enunciated by the Supreme Court in a matter involving restrictions on
religious exercise related to the COVID-19 pandemic as follows:
[T]he government has the burden to establish that the challenged law
satisfies strict scrutiny. To do so in this context, it must do more than
assert that certain risk factors “are always present in worship, or always
absent from the other secular activities” the government may
allow. South Bay United Pentecostal Church v. Newsom, 592 U. S. ––
––, ––––, 141 S.Ct. 716, 718, ––– L.Ed.2d –––– (2021) (statement of
GORSUCH, J.); id., at –––– , 141 S.Ct., at 717(BARRETT, J.,
concurring). Instead, narrow tailoring requires the government to
show that measures less restrictive of the First Amendment activity
could not address its interest in reducing the spread of COVID. Where
the government permits other activities to proceed with precautions, it
must show that the religious exercise at issue is more dangerous than
those activities even when the same precautions are applied.
Otherwise, precautions that suffice for other activities suffice for
religious exercise too. Roman Catholic Diocese, 592 U. S., at –––– – –
–––, 141 S.Ct., at 69 -70; South Bay, 592 U. S., at ––––, 141 S.Ct., at
719 (statement of GORSUCH, J.)

Tandon v. Newsom, 141 S. Ct. 1294, 1296–97, 209 L. Ed. 2d 355 (2021) (emphasis
added). Not only did the state fail to meet this burden, but the Supreme Court has
explained that there are “many other less restrictive rules” than restrictions where,
as here, the government limits the number of persons who may worship without
consideration of the space in which they gather:
[T]here are many other less restrictive rules that could be adopted to
minimize the risk to those attending religious services. Among other
things, the maximum attendance at a religious service could be tied
to the size of the church or synagogue. Almost all of the 26 Diocese
churches immediately affected by the Executive Order can seat at least
500 people, about 14 can accommodate at least 700, and 2 can seat over
1,000. Similarly, Agudath Israel of Kew Garden Hills can seat up to
400. It is hard to believe that admitting more than 10 people to a 1,000–
seat church or 400–seat synagogue would create a more serious health
risk than the many other activities that the State allows.

Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67, 208 L. Ed . 2d 206
(2020) (emphasis added). It is undisputed (and, again, judicial notice may be taken
of the fact) that the capacity of defendant’s church permits hundreds of people to
gather outside of the pandemic restrictions. T he state has failed to show that its

3

compelling interest to be achieved through the emergency orders, which limit
gatherings to 10 or 50, respectively, could not be achieved through less restrictive
means such as tying the gathering limitations to defendant’s church capacity.
Lawyers in every case should take extra care in perfecting and protecting the
trial court record, regardless of the pre -trial posture of a certain motion, with
competent evidence and documents identified, introduced, and admitted by the trial
court. An appellate court is a court of record; the lawyers should develop the factual
record at the trial level such that the appellate court, which is not an evidence taking
court, has all that it needs to make a meaningful decision. As correctly reasoned by
the majority, it was the State’s burden to prove the constitutionality of the
Governor’s orders. While I note the foregoing concerns respecting the failure of both
parties’ counsel to develop the record, I agree the state ultimately failed to meet its
burden to prove the emergency proclamations infringed on defendant’s religious
liberty with the least restrictive means. Accordingly, I additionally concur in the
reversal of the lower courts’ rulings.