State v. Spell

Decision Date13 May 2022
Docket Number2021-KK-00876
Citation339 So.3d 1125
Parties STATE of Louisiana v. Mark Anthony SPELL
CourtLouisiana Supreme Court


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.


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

Order 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:

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 jurisdiction 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 public 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 takeout, 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" was 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 imposed 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 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

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. 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 freely 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.


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, this 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 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 at 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 ...

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