In 2011, Supreme Court Justice Clarence Thomas decried "an Establishment Clause jurisprudence in shambles." Unable to come to a consensus, the Court has shifted from one theory to another, with confusing, conflicting, and sometimes bizarre results. Over the past several decades the Court has struck down school prayer (1962) and Bible reading (1963) but allowed prayer at town board meetings (2014), prohibited (1948) but later allowed (1952) released-time programs whereby children could be released from school for religious instruction, prohibited the display of the Ten Commandments in schools (1980) but in 2005 prohibited the Ten Commandments in a courthouse but on the same day allowed them on a state capitol lawn, allowed (1984) but later prohibited (1989) a public nativity display, and a host of other irreconcilable rulings.
More recently, the Court has moved away from some its more radical rulings, and now says the Establishment Clause "must be interpreted by reference to historical practices and understandings" where "the line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers." Kennedy v. Bremerton School District,142 S.Ct. 2407 at 2428 (2022). Accordingly, the Court in Kennedy held that a coach's prayer on the 50-yard line was not an establishment of religion, just as the Court held in 2019 that a 30-foot cross erected to honor World War I veterans did not violate the Establishment Clause.
These are positive developments, but the Court still needs provide a definitive answer to the question: What did the Framers mean when they wrote, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."? On May 5, 2023, the Foundation for Moral Law presented a case to the Court which could give the Justices the perfect opportunity to answer this question.
Spell v. Edwards
In 2020, Louisiana Governor John Bel Edwards responded to the COVID threat by issuing a series of executive orders which, among other things, prohibited churches from assembling with more than 10 people present. Tony Spell, Pastor of the 2,000-member Life Tabernacle Church, believed that closing his church would violate Hebrews 10:25 ("Not forsaking the assembling of ourselves together, as the manner of some is; but exhorting one another: and so much the more, as ye see the day approaching."). He therefore decided he must "obey God rather than men" (Acts 5:29) and led worship services, and thus he was changed with several misdemeanors.
Pastor Spell retained the legal services of the Foundation for Moral Law. The Foundation attorneys spoke with him at great length, and he convinced them that he was 100% sincere in his religious convictions and that he would not back down even if it meant going to jail. With the Foundation attorneys, he launched a two-pronged offensive against the charges and the Governor's orders -- one in Louisiana state court to defend against the charges, and one in federal court to fight for religious liberty.
In Louisiana State Court
In state court he argued that the Governor had exceeded his powers under the Louisiana Health Emergency Powers Act,R.S.29:760 et seq., in part because Sec. 736.D provides that "Nothing in this Chapter shall be interpreted to diminish the rights guaranteed to all persons under the Declaration of Rights of the Louisiana Constitution or the Bill of Rights of the United States Constitution." (Note: We need a similar protection in the Alabama Emergency Act! Tell your legislators!)
On May 13, 2022, the Louisiana Supreme Court ruled in favor of Pastor Spell, quashing the charges against him because the Governor had exceeded his authority in issuing the order. The Court noted that the Governor's order discriminated against churches, placing them under a 10-worshipper limit while grocery stores and liquor stores were under no similar 10-shopper limit.
As the Court said, "What defendant [Spell] seeks -- and what our Constitution ensures -- is that his religious activities be treated no differently than comparable secular activities. ...We interpret Pastor Spell's request not as one for special treatment, but for equal treatment." The State may not single out a church for discriminatory treatment without showing it has a compelling interest for doing so that cannot be achieved by less restrictive means, a standard that is called "strict scrutiny." The Court concluded, "The state's disparate treatment of religious gatherings is simply not supported by any evidence."
This was a victory for religious freedom. But Pastor Spell and the Foundation attorneys believed it did not go far enough. The First Amendment protects free exercise of religion -- not free exercise of shopping, gambling, or business. The Constitution does not place religion in an equal position with other activities; it places religion in a preferred position.
So Pastor Spell and the Foundation pursued the case further in federal court.
In the U.S. Supreme Court
On May 5, 2023, having argued these issues in the Federal District Court and the Fifth Circuit, Pastor Spell filed a petition for writ of certiorari with the United States Supreme Court. In this petition, they noted that the Justices are now seeking the Framers' intent concerning religious freedom, and we need to remember that the Framers grew up in the shadow of the Reformation and viewed Church and State as two distinct kingdoms or jurisdictions.. To find the Framers’ intent, we need to look to the Reformation and the Bible.
They understood separation of church and state -- which is a proper concept, despite the Left's distortion of it into hostility toward religion --as a jurisdictional separation. Even in Old Testament Israel, the kings came out of the Tribe of Judah while the priests came out of the Tribe of Levi -- separate offices, separate jurisdictions, but both derived their authority from God and both were subject to the Law of God. And Jesus Christ strengthened the principle in his response to the Pharisees (Matthew 22:21). As Lord Acton noted,
When Christ said: "Render unto Caesar the things that are Caesar's, and unto God the things that are God's," those words, spoken on His last visit to the Temple, three days before His death, He gave to the civil power, under the protection of conscience, a sacredness it had never enjoyed, and bounds it had never acknowledged; and they were the repudiation of absolutism and the inauguration of freedom.
Augustine recognized these two kingdoms in his Civitas Dei, which, Luther said, "set the very course of Western Civilization." Luther himself said of Church and State,
...these two kingdoms must be sharply distinguished, and both be permitted to remain; the one to produce piety, the other to bring about external peace and prevent evil deeds; neither is sufficient in the world without the other.
Calvin's views of Church and State were similar to those of Luther.
Understood against this jurisdictional backdrop, Jefferson's 1804 letter to the Danbury Baptists in which he spoke of a "wall of separation between church and state," and Madison's Memorial and Remonstrance Against Religious Assessments (1785) in which he declared that Christianity is "the Religion which we believe to be of divine origin" that enjoys the "patronage of its Author" and therefore does not need the aid of the State, start to make sense.
So what has this to do with a Governor’s order to close churches? Simply this: Imagine, for a moment that Pastor Spell had issued an order closing all state offices during the pandemic. People would stare with open-mouthed astonishment, wondering, where does he think he gets the authority to close state offices? And here's the point: The State has no more authority to close churches, than the Church has to close State offices. It's a matter of jurisdiction.
A Closing Word
We're realistic. We recognize that the Supreme Court receives more than 10,000 certiorari petitions every year, and they can only hear about 100. Mathematically, the odds of this petition being granted are about 1%. But we hope the Justices will recognize the importance of the issues we have raised. Whatever they do with this petition, the issue of jurisdiction will not go away. In times past, State officials would not have considered closing churches. On July 3, 1849, in the face of a cholera epidemic, President Zachary Taylor proclaimed a "Day of Fasting, Humiliation, and Prayer":
At a season when the providence of God has manifested itself in the visitation of a fearful pestilence, which is spreading itself throughout the land, it is fitting that a people, whose reliance has ever been in his protection, should humble themselves before his throne; and, while acknowledging past transgressions, ask a continuance of the Divine mercy.
It is, therefore, earnestly recommended that the first Friday in August be observed throughout the United States as a day of Fasting, Humiliation, and Prayer. All business will be suspended in the various branches of the public service on that day; and it is recommended to persons of all religious denominations to abstain, as far as practicable, from secular occupations, and to assemble in their respective places of Public Worship, to acknowledge the infinite goodness which has watched over our existence as a nation, and so long crowned us with manifold blessings; and to implore the Almighty, in his own good time, to stay the destroying hand now lifted against us.
Things were different then. People knew that God is real, His wrath is real, and His saving grace is real. And they knew He answers prayer.
Rather than closing the churches, they wanted the churches open, and they wanted the people of God to pray to Him to implore His intervention.
Is that what's been missing during the COVID pandemic?