December 2024 – Parks & Recreation - 32

LAW REVIEW
Content-Based Application
Denial
In this case, Plaintiff had alleged
the Defendant Town's actions in
denying permission to hold the
Christmas Vigil on the Sherman
Green were " content based. " In
so doing, Plaintiff argued the Special
Events Permitting Scheme had
been applied in a manner, which
" distinguished favored speech from
disfavored speech on the basis of the
ideas or views expressed. " In particular,
Plaintiff alleged " the Commission
permitted other groups to use
Sherman Green in a manner that
was inconsistent with the reasons
the Commission gave for denying
the Plaintiff' applications " :
[A]nother religious group was
granted permission to host a large
group gathering on Sherman
Green around the same time the
Plaintiff[s] were denied permission
to hold the Christmas Vigil on
Sherman Green purportedly due to
concerns related to COVID-19....
[O]ther groups were granted
permission to set up temporary ice
rinks overnight for three days at a
time, or allowed to leave signs unattended
and overnight for extended
periods of time on Sherman
Green, while a Commissioner opposed
the Plaintiff permit application
because the Christmas Vigil
was too many hours and took
place overnight.
The federal district court acknowledged
" strict scrutiny " judicial
review would be appliable in determining
the constitutionality of a
regulation that " restricts expression
on the basis of its content. " Strict
scrutiny judicial review would require
the Defendant Town to show
that the permitting scheme restriction
" serves a compelling governmental
interest, is necessary to serve
the asserted compelling interest, is
precisely tailored to serve that interest,
and is the least restrictive means
readily available for that purpose. "
In this case, the federal district
court found the Defendant Town
had offered " no arguments as to
why their actions under the Special
Events Permitting Scheme survive
strict scrutiny. " The court, therefore,
denied Defendant's motion to
dismiss Plaintiff's claims that the
Town had violated its First Amendment
right to freedom of speech
and right to peaceably assemble.
Free Exercise of Religion
Plaintiff also had alleged that the
Defendant Town had violated the
First Amendment right to the free
exercise of religion. As described
by the federal district court, to be
considered constitutional under the
Free Exercise Clause of the First
Amendment, a law that, incidentally,
" sometimes burdens " the external
practice of religion " must be
" neutral and generally applicable. "
On the other hand, the court noted
a law is " not neutral if it explicitly
singles out a religious practice or
targets religious conduct for distinctive
treatment " :
A law is not generally applicable
if it invites the government to
consider the particular reasons for
a person's conduct by providing a
mechanism for individualized exemptions,
or if it prohibits religious
conduct while permitting way.
Accordingly, the court held " the
Commission was obliged under the
Free Exercise Clause to proceed in a
manner neutral toward and tolerant
of Plaintiff's religious beliefs " :
Government fails to act neutrally
when it proceeds in a manner intol32
Parks & Recreation | DECEMBER 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
erant of religious beliefs or restricts
practices because of their religious
nature.... The Free Exercise Clause
bars even subtle departures from
'neutrality' on matters of religion....
Factors relevant to the assessment
of governmental neutrality include
the historical background of the decision
under challenge, the specific
series of events leading to the enactment
or official policy in question,
and the legislative or administrative
history, including contemporaneous
statements made by members of the
decision-making body.
Since
the Town's
permitting
scheme contained " no criteria, restraints,
or guidelines to which the
Commission must adhere when
ruling on an application, " the federal
district court found this " lack
of standards " created " a mechanism
for individualized exemptions
where secularly motivated
conduct could be impermissibly
favored over religiously motivated
conduct. "
As a result, the federal district
court held Plaintiff had " alleged
facts
sufficient to show that the
defendants' treatment of the Plaintiff's
applications violated the Free
Exercise Clause because the Special
Events Permitting Scheme was not
applied in a way that was neutral
and respectful. " In particular, the
court noted, during the 2020 application
hearing, one of the commissioners
had explicitly questioned
" whether the Christmas Vigil was
religious in nature. " In the opinion
of the federal district court, such
comments " could be understood as
members of the Commission engaging
in the impermissible practice
of evaluating the religious significance
of the Plaintiff's claimed
religious practice. "
December 2024 – Parks & Recreation

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