| | The concurrence, joined by another judge to comprise a majority of the panel, noted that the pastor had a winning claim on the grounds of [[strict scrutiny]] but elected to argue on other grounds: | | The concurrence, joined by another judge to comprise a majority of the panel, noted that the pastor had a winning claim on the grounds of [[strict scrutiny]] but elected to argue on other grounds: |
| | {{cquote|For decades, it has been clearly established that treating houses of worship worse than comparable secular assemblies—as the district court assumed Louisiana did here—violates the Constitution. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993); see Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66-67, 208 L. Ed. 2d 206 (2020) (applying Lukumi's disparate-treatment rule to COVID-19 regulations). Had Pastor Spell's counsel not affirmatively waived the Lukumi argument, his victory was all but assured. See United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) ("Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." (quotation omitted)); Cargill v. Garland, 57 F.4th 447, 2023 WL 119435, at *13 (5th Cir. 2023) (en banc) (noting that, unlike a forfeited argument, courts generally cannot pursue a waived argument); Essinger v. Liberty Mut. Fire Ins. Co., 534 F.3d 450, 453 (5th Cir. 2008) (clarifying that when a forfeited argument involves a legal error and the failure to consider it will result in a "miscarriage of justice" courts may pursue the argument). But oddly, Pastor Spell's counsel insisted on taking a loss.}} | | {{cquote|For decades, it has been clearly established that treating houses of worship worse than comparable secular assemblies—as the district court assumed Louisiana did here—violates the Constitution. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993); see Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66-67, 208 L. Ed. 2d 206 (2020) (applying Lukumi's disparate-treatment rule to COVID-19 regulations). Had Pastor Spell's counsel not affirmatively waived the Lukumi argument, his victory was all but assured. See United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) ("Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." (quotation omitted)); Cargill v. Garland, 57 F.4th 447, 2023 WL 119435, at *13 (5th Cir. 2023) (en banc) (noting that, unlike a forfeited argument, courts generally cannot pursue a waived argument); Essinger v. Liberty Mut. Fire Ins. Co., 534 F.3d 450, 453 (5th Cir. 2008) (clarifying that when a forfeited argument involves a legal error and the failure to consider it will result in a "miscarriage of justice" courts may pursue the argument). But oddly, Pastor Spell's counsel insisted on taking a loss.}} |
| − | Spell v. Edwards, No. 22-30075, 2023 U.S. App. LEXIS 3839, at *7 (5th Cir. Feb. 17, 2023) (Oldham and Elrod, JJ., concurring) | + | ''Spell v. Edwards'', No. 22-30075, 2023 U.S. App. LEXIS 3839, at *7 (5th Cir. Feb. 17, 2023) (Oldham and Elrod, JJ., concurring) |