UNITED STATES OF AMERICA, Appellant, v. SCOTT M. GALINDEZ, Appellee, No. (Cr. Nos. 87-60, 87-158) UNITED STATES OF AMERICA, Appellant, v. STEPHEN SEMPLE, Appellee No. (Cr. No. 87-61) UNITED STATES OF AMERICA, Appellant, v. WILLIAM THOMAS, Appellee, No. (Cr. No. 87-62) UNITED STATES OF AMERICA, Appellant, v. PHILLIP JOSEPH, Appellee, No. (Cr. No. 87-63) UNITED STATES OF AMERICA, Appellant, v. ELLEN THOMAS, Appellee. No. (Cr. No. 87-64)
At approximately 10:00 p.m. on December 21, 1986, United States Park Police Officer Peter Ward noticed appellees lying on the ground, in or under sleeping bags and blankets, near the
1/ Lafayette Park, a roughly seven acre square located across Pennsylvania Avenue from the White House, is a Memorial-core area park -- " a garden park with a . . . formal landscaping of flowers and trees, with fountains, walks and benches." Clark v. CCNV, 468 U.S. at 290 (quotations and citations omitted).
2/ The United States Department of the Interior, through the National Park Service, has been charged with responsibility for the management and maintenance of all National Parks. The National Park Service is required to
promote and regulate the use of the ... national parks ... by such means and measures as conform to the fundamental purpose of said parks . . ., which purpose is to conserve the scenery and the national and historic objects and the wildlife therein and to provide for the enjoyment of the same in such a manner and by such means as will leave them unimpaired for the enjoyment of future generations.
16 U.S.C. §1. The Secretary of the Interior is authorized to promulgate rules and regulations for the use and management of these parks in accordance with the purposes for which they were established. 16 U.S.C. §3, 1a-1.
"the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. Id.
The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaged. Id.
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no reasonable alternative but to break the regulation, because his financial situation, moral responsibility, and threat of death or harm to humanity combined to leave defendant no option but to do the so-called criminal act.
Id. at 5.
the contested activity {expressing/camping) was executed by Thomas in an effort to perform his individual duties honestly, faithfully, and to the best of his ability, directly and proximately accruing from an Act of God which produced a chain of events, and influenced Thomas' thinking in such a manner as to preclude him from acting in any other manner while yet fulfilling his religious and moral obligations. Id. at 3. 3/
3/ Thomas provided perhaps the clearest summary of his thinking in yet another motion that he submitted in this case:
Since June 3, 1981 Thomas has been devoting as much of his time and energy as possible to communicating opinions with respect to the relative insanity and impracticality of genocidal weapons. Both to illustrate his sincerity, as well as to pursue personal moral perfection, Thomas has taken a vow of poverty and lives without accommodations as a symbolic statement vis-a-vis the morality of protecting an individual or natural life-style through the expedient of force and violence. So that he may be available to the general public for purposes of communication, Thomas spends as much time as possible in Lafayette Park, a traditional public forum. Response To The Government's Opposition To Defendant's Motion To Dismiss For Lack of Offense, at 2-3.
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4/ Parenthetical references preceded by "Tr." refer to the transcript of the pre-trial proceedings on April 23, 1987.
THE COURT: Your theory here is that you have engaged in this protest and were engaging in activity on the day of your arrest in the instant case because God told you to do it?
W. THOMAS: Yeah, you could say --
THE COURT: Pardon?
W. THOMAS: Yes.
THE COURT: And that to have done otherwise would have been a violation of the free exercise of rights clause which all
citizens enjoy under the First Amendment, of the Bill of Rights, to the Constitution. Is that correct?W. THOMAS: I think that is fairly accurate.
THE COURT: Fairly accurate? Is it right or not?
W. THOMAS: Yes.
THE COURT: All right.
W. THOMAS: Yes. It is right.
THE COURT: Let me ask you this, Mr. Thomas: Does your act of demonstrating and protesting with these signs and whatever else you
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5/ Ellen Thomas and Stephen Semple were represented at the hearing by counsel (Tr. 13, 17-18). William Thomas and Phillip Joseph, after inquiry from the Court, elected to proceed pro se (Tr. 15, 16).
do or are alleged to have done at or near the Lafayette Park at the time of your arrest in this case form a central part of your religious belief?
W. THOMAS: I believe that it is my religious belief--
THE COURT: I just ask you yes or no.
W. THOMAS: I think that is reflected in the--
THE COURT: The answer to the question is yes- --
W. THOMAS: Yes.
THE COURT --or no? And your answer is yes?
W. THOMAS: Yes (Tr. 43-44).
6/ Phillip Joseph immediately changed his mind and informed the Court that he wanted "to have a jury decide it" (Tr. 47-48). The Court replied, "You have already waived it. It is too late" (Tr. 48).
7/ The prosecutor indicated that she had received the motion, which was filed on April 22, 1987, moments before the hearing (Tr. 48).
8/ The District Court's opinion of April 23, 1987, dismissing the informations, and its opinion of May 26, 1987, denying the government's motion for rehearing and reconsideration, are attached hereto.
the protection of the free exercise clause, the Supreme Court, in Clark v. Community for Creative Non-Violence [CCNV], 468 U.S. 288 (1984), had recognized the government' s substantial and overriding interest in enforcing these very anti-camping regulations in the face of a legitimate First Amendment claim.
could conceive of no way in which defendants could remain in Lafayette Park for long-term vigils without sleeping and thereby running afoul of the regulation. [Id.]
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9/ The District Court is mistaken. Although government counsel could have requested additional time to respond, the Court never asked counsel if she was "prepared" to argue the motion. Nor did the prosecutor "affirmatively" state that she was prepared. Rather, in reply to the Court's inquiry as to whether the government had a "response", the prosecutor stated, "I will do the best I can, having just received the motion" (Tr. 48).
10/ On May 12, 1987, after the hearing and the Court's order dismissing the informations but before the Court issued its order denying the government's motion to reconsider, William Thomas filed with the Court the "Declarations" of Phillip Joseph, Steven Semple, and Ellen Thomas. These "declarations, " which are not sworn, bear what purport to be the signatures of Joseph, Semple, and Ellen Thomas. The District Court did not refer to these declarations in its order denying the government's motion to reconsider, and it does not appear that the Court considered them. In essence, these declarations indicate that Joseph, Semple, and Ellen Thomas are followers of Jesus Christ, and that their religious beliefs require them to speak out against the "wrongs" they perceive in society, one of which is nuclear proliferation.
A. The District Court's Decision
Lacks Adequate Support In The Record.
"[I]f the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claim would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.
406 U.S. at 216; see Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1034 (3rd Cir. 1981) (free exercise clause "does not protect all deeply held beliefs, however 'ultimate' their ends or all consuming their means"), cert denied, 456 U.S. 908 (1982). A religious practice must be central to the claimant's religion to be entitled to First Amendment protection. See Wisconsin v. Yoder, 406 U. S. at 216, 217 (Amish practice of withdrawing children from public school after the eighth grade "fundamental" and "mandated by the Amish religion"); Sherbert v. Verner, 374 U.S. at 406 (observance of the sabbath a "cardinal principle" for Seventh Day Adventists); Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, Ohio, 699 F.2d 303, 306 (6th Cir. 1983) (practice must be "integrally related" to underlying religious beliefs).
religious"), cert. denied, 396 U.S. 963 (1969). 11/ A
party invoking the free exercise clause to shield himself from
otherwise legitimate governmental regulation has the burden of
showing that the challenged activity is religious in nature and
that the challenged regulation infringes upon his religious belief
or practice. Abington School District v. Schempp, 374 U.S.
203, 233 (1963) (party invoking free exercise clause as a defense
has burden of demonstrating the "coercive effect of the enactment
as it operates against him in the practice of his religion");
Wilson v. Block, 708 F.2d 735, 740 (D.C. Cir.) (party asserting
free exercise claim has "initial burden" of proving
that regulation infringes upon a religious belief or practice),
cert. denied, 464 U.S. 956 (1983); Menora v. Illinois
High School Association, 683 F.2d 1030, 1035 (7th Cir. 1982).
Even when the government has failed to challenge a party's claim
that it is engaged in the exercise of a religion, the claimant
must still, at the very least, make a prima facie showing that
its actions are religious in nature in order to be accorded the
protection of the First Amendment. Founding Church of Scientology
v. United States, 409 F.2d at 1160.
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11/ The task of defining religion for First Amendment purposes has been the subject of much scholarly debate. See, e.g., Note, Developments In The Law -- Religion And The State, 100 Harv. L. Rev. 1607 (1987); Greenawalt, Religion As A Concept In Constitutional Law, 72 Cal. L. Rev. 753 (1984); Note, Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056 (1978); Boyan, Defining Religion in Operational and Institutional Terms, 116 Pa. L. Rev. 479 ( 1968) . These commentators agree, however, that the free exercise clause requires courts, as a threshold matter, to determine whether a particular claim is religious in nature .
12/ Notably, as the government pointed out in its motion for rehearing and reconsideration, William Thomas has been convicted of camping in Lafayette Park on several prior occasions without interposing a free exercise defense. For Thomas now to assert that he violated the anti-camping regulation because of an "Act of God" that occurred in 1974, strains credulity.
consulted with her client. This does not constitute a sufficient showing of an exercise of a religion.
Scientology v. United States, makes clear that even when the government does not contest a party's assertion that its activities are religious, the claimant must still establish a prima facie case that it is engaged in the exercise of a religion in order to be accorded First Amendment protection. 409 F.2d at 1160.
Lafayette Park. Notably, appellees have not claimed that camping in the park is part of their religion. Nor did the District Court find that camping is a religious belief or practice. This is scarcely surprising, since sleeping on the ground in sleeping bags has no obvious religious significance. Although the act of sleeping outdoors might, in conjunction with a religiously dictated vow of poverty, have some conceivable religious connotation, no such showing has been made here. Nor did appellees explain at the hearing how their anti-nuclear vigil amounted to a religious observance, or why their anti-nuclear views constituted a religion.
v. Block illustrates this point. In Wilson, Navajo and Hopi Indian tribes challenged, on free exercise grounds, the decision of the United States Forest Service to permit private interests to develop a ski area on a small portion of the San Francisco Peaks in the Coconino National Forest, near Flagstaff, Arizona. See 708 F.2d at 738. The Indian tribes presented evidence of their belief that the San Francisco Peaks are sacred mountains -the residence of their deities and spiritual emissaries, the site of their religious ceremonies and shrines, and the source of herbs, plants, and animals used in their religious observances. Id. This Court found that the Indians had established that their beliefs were religious in nature and that the Peaks had a special religious significance to them because their religion was "site specific." Id. at 742. However, the Court concluded that the Indians had failed to show that the ski development would burden the exercise of their religion because they had not established that the small portion of the Peaks scheduled to be developed was "indispensable" to the practice of their religious beliefs. Id. at 744.
B. The District Court's Analysis is Fundamentally Flawed.
13/ That much political speech is inspired by religious beliefs is obvious from the free speech cases that have confronted the courts . See, e g ., Concerned Jewish Youth v. McGuire, 621 F.2d 471 (2d Cir. 1980) (plight of Soviet Jewry), cert. denied, 450 U. S. 913 ( 1981 ); A Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975) (anti-war). Indeed, CCNV, as this Court recognized in CCNV v. Watt, is a "religious association. " See 703 F.2d 586, 608 (D.C. Cir. 1983) (Wilkey J., dissenting), rev'd, 468 U. S. 288 ( 1984) . Much of CCNV's speech, therefore, including that taking the form of camping in Lafayette Park, is religiously inspired. See p. 26 n. 16 infra.
14/ The Court found that the prohibition on camping in Lafayette
Park burdened appellees religion because it could
conceive of no way in which defendants could remain in Lafayette Park for long-term vigils without sleeping and thereby running afoul of the regulation.
(Mem. Op. of May 26, 1987, at 5).
C. The Supreme Court's Decision in Clark v. CCNV Requires Reversal of the District Court's Order.
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sleep in the tents, relying on the Park Service's anti-camping regulations. 468 U.S. at 291-292. The demonstrators challenged the sleeping ban, and the Supreme Court upheld the regulations as a valid time, place, and manner restriction, and as a lawful restriction on symbolic speech. Id. at 294-299. Assuming, without deciding, that sleeping was expressive conduct entitled to some first Amendment protection in the context of a demonstration designed to draw attention to the plight of the homeless, id. at 293, the Court found that the government had an overriding interest in "conserving park property, an interest that is plainly served by, and requires for its implementation, measures such as the proscription of sleeping that are designed to limit the wear and tear on park properties." Id. at 299. The Supreme Court expressly recognized the government's
substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence. To permit camping -- using these areas as living accommodations --would be totally inimical to these purposes....
Id. at 296.
state fair except from licensed locations upheld as a valid
time, place, and manner restriction despite its burden on the
Krishnas' practice of Sankirtan, a religious ritual that enjoins
Krishnas to distribute and sell religious literature in public
places); Cox v. New Hampshire, 312 U.S. 569, 573, 578 (1941)
(ordinance forbidding street parades without a license upheld
as a legitimate time, place, and manner restriction in the face
of claim by Jehovah's Witnesses that such parades are "one
of their ways of worship"); Cantwell v. Connecticut,
310 U.S. 296, 304 (1940) (state may regulate the time, place,
and manner of the dissemination of religious views); Brandon
v. Board of Education of the Guilderland Central School District,
635 F.2d 971, 980 (2d Cir. 1980)("the expression of religious
points of view, and even the performance of religious rituals,
is permissible in parks and streets when subject to reasonable
time, place, and manner regulations"), cert. denied,
454 U.S. 1123 (1981). 15/ As the
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15/ Of course, "religiously motivated" speech, as opposed to "politically motivated" speech, is not entitled to any extra First Amendment protection. As the Supreme Court noted in Heffron v. International Society for Krishna Consciousness, supra, "religious organizations do not
enjoy rights to communicate, distribute, and solicit on the fairgrounds superior to those of other organizations having social, political, or other ideological messages to proselytize."
452 U. S. at 652-653 . See also Prince v. Massachusetts, 321 U.S. 158, 164 (1944) ("it may be doubted that any of the great liberties insured by the First Article can be given a higher place than the others. All have a preferred position in our basic scheme.") Furthermore, because appellees were engaged, at most, in "religiously-motivated" speech, it is unnecessary to determine whether the anti-camping regulation serves the type of "compelling" interest required when government action has a coercive effect on the exercise of a religion, "putting pressure on an adherent to modify his behavior and violate his beliefs." Hobbie v. Unemployment Appeals Commission of Florida, 107 S. Ct. 1046, 1048 (1987). See, e.g., United States v. Lee, 455 U.S. 252 (1982); Thomas v. Review Board, supra. However, the government submits that the Supreme Court's decision in Clark v. CCNV, recognizing the substantial interests served by the anti-camping regulation, plainly indicates that the regulation satisfies even a higher, "compelling" interest standard of review.
Supreme Court found in Clark v. CCNV, the regulations prohibiting camping in Lafayette Park are an appropriate time, place, and manner restriction:
focus on the government's "substantial interest in maintaining the parks in the heart of our Capital in an attractive manner", they are "content-neutral", they "narrowly tailored," and they leave open ample alternative channels for communication. 468 U. S. at 295. 16/
16/ The parallel between Clark v. CCNV and the instant case is especially striking since CCNV, as this Court has observed, is a "religious association", see CCNV v. Watt, 703 F. 2d at 608 (D. C. Cir.)(Wilkey J., dissenting), rev'd, 468 U.S. 288 (1984), which previously has sought access to memorial-core area parks to engage in expressive activity on free exercise grounds. See Community For Creative Non-Violence v. Hodel, 623 F. Supp. 528, 530 (D. D.C. 1985).
cannot be assessed by inquiring into the effect of granting an exemption from the regulatory prohibition to one group. 452 U.S. at 652-653. Any regulation can be made to seem unnecessary if the inquiry is focused only on the government's interest in not making an exception in the particular case at hand. See, e.g., United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 135 (1981) (Brennan, J. concurring). This principle holds true even when the government regulation directly burdens the free exercise of religion. See United States v. Lee, 455 U.S. at 259-260 (upholding refusal to grant Amish an exemption from social security taxes, even though their religion prohibits the payments of such taxes, because of difficulty in administering social security system if religious exemptions are allowed).
Joseph E. DIGENOVA
United States AttorneyRoyce C. LAMBERTH
Assistant United States Attorney(signed)
MICHAEL J. RYAN
Assistant United States Attorney(signed)
JOHN D. BATES
Assistant United States Attorney(signed)
CURTIS E. HALL
Assistant United States Attorney
(signed John D. Bates)
JOHN D. BATES, D.C. Bar #934927
Assistant United States Attorney
Judiciary Center Building
555 4th Street N.W. Room 4126
Washington, D.C. 20001
202 272-9195