December 2024 – Parks & Recreation - 30

LAW REVIEW
would be presented there more
than a ceremony. " The chairman,
however, admitted " there was a
ceremonial menorah lighting on
the first eve of Hanukah on December
8th and one planned for
the final night. " In addition, one of
the commissioners had questioned
" whether the Christmas Vigil was
religious in nature. "
Following this discussion, the
chairman advised Plaintiff that " the
Commission would not be approving
the move to Sherman Green. " As
a result of the application being denied,
Plaintiff held the 2020 Christmas
Vigil on Town Hall Green.
Health Emergency Pretext
According to the Town, " the denial
of the 2020 application was
a valid discretionary action by the
Town to mitigate the COVID-19
public health emergency. " The federal
district court acknowledged
that " courts are required to uphold
governmental measures to protect
public health, " unless they bear
" no real or substantial relation to
the object of public health or are
beyond all question, a plain, palpable
invasion of rights secured by
the fundamental law. " Moreover,
in reviewing governmental actions,
the court recognized the applicable
standard of review " preserves the
authority of the judiciary to strike
down laws that use public health
emergencies as a pretext for infringing
individual liberties. "
Under the circumstances of this
particular case, the federal district
court found Plaintiff had sufficiently
alleged the Defendant Town's
" stated reason for denying their
2020 application,
i.e., COVID-19
concerns, was pretextual. " Despite
the Defendant's " purported public
health concern, " the court noted the
department had approved a different
group to host a " large group gathering "
on Sherman Green for an event
" only four days " after Plaintiff's application
to hold the 2020 Christmas
Vigil on Sherman Green was denied
based upon COVID-19 concerns.
2021 Permit Application
On August 31, 2021, Plaintiff applied
for permission to hold the
2021 Christmas Vigil on Sherman
Green. By this time, COVID-19
restrictions on outdoor gatherings
had been lifted and " Sherman
Green was regularly being used for
all sorts of events including outdoor
concerts. " In response, the
parks and recreation department
forwarded the following message
from the Commission chairman:
Regarding the Knights of Conothing
lumbus
request,
has
changed.
A primary difference
between their request and other
approved events is that their request
is for a display and the other
requests being considered and approved
recently are for ceremonies.
As nothing has changed, they can
continue to use the town hall location
without seeking new approval
but...we will not hear the request
for the Sherman Green again.
Restricted Event Hours
On September 22, 2021, Plaintiff
wrote
to
justification, " indicating " he did
not support the Christmas Vigil because
it lasted too many hours and
took place overnight, " stating:
[T]here were 162 events since
2019, and of those events, 157
were either in the afternoon or concluded
by 8 p.m. There were never
any past 9 p.m. and only four of
them went longer than four hours.
The
chairman further
stated,
" [W]e support what you are doing;
we just support it at the location
you were using since 1989 the
Town Hall Green. "
Plaintiff then inquired " whether
the Knights 2616 could be permitted
instead to leave the Nativity,
unattended, on Sherman Green on
Christmas Eve, just as other groups
with the Tree of Hope had been
allowed to leave their signs displayed
overnight and unmanned. "
The chairman rejected the request,
stating without explanation by the
Commission, that Plaintiff would
be required to " remove the Nativity
and shut down the vigil at 8 p.m.
on Christmas Eve. "
In response, Plaintiff alleged
the chairman's " justification with
respect to the hours of use was a
pretext as the Regulations do not
contain any time limitations on
the use of public parks, nor is there
any prohibition with respect
to
the Commission contending
" its actions continued to
violate the constitutional rights "
of the Plaintiff, in particular the
" irrationality of the ceremony and
display distinction. " In an October
22, 2021 meeting to consider Plaintiff's
application, the Commission
chairman appeared to have abandoned
his " display vs. ceremony
30 Parks & Recreation | DECEMBER 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
overnight use. " Moreover, Plaintiff
alleged " a review of the public
minutes from the Commission's
meetings " indicated " in the five
years prior to the Knights 2616's
Christmas Vigil applications, the
Commission did not deny a single
application to use Sherman Green
other than the Knights' Christmas
Vigil application. "
The Commission voted to deny
Plaintiff's 2021 special event ap
December 2024 – Parks & Recreation

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