PHILADELPHIA (CN) – Philadelphia’s plan to ban outdoor homeless-feeding programs in one of the nation’s largest city parks was put on ice this week by a federal judge.
The case, which pits freedom of expression and religious observance against a municipality’s need to regulate its homeless population and green space, challenges a city ordinance barring the distribution of free food to groups of three or more in Philadelphia’s 9200-acre Fairmount Park.
A section of that park abuts the Benjamin Franklin Parkway, a roughly mile-long diagonal boulevard that is the backbone of the city’s museum district.
At the same time, that section has become the epicenter of outdoor homeless-feeding operations, with about 30 charitable groups using the space to distribute food to the needy.
The plaintiffs, churches and church leaders who have operated near the Parkway for years, consider the area “sacred ground, a church without walls,” attorney Paul Messing told U.S. District Judge William Yohn Jr. during oral argument Thursday on his bid to preliminarily enjoin the ban.
But the city says that “sacred ground” becomes an unsanitary stretch strewn with trash and debris when the feedings finish, and worse, it has encouraged the needy to live near the Parkway, creating a “complex” community of people with drug problems, mental illness or both.
The city announced its intention to intervene last March, and the ban on feedings was initially slated to take effect June 1. The city has refrained from enforcing it until Judge Yohn sorts out the constitutional issues.
The city said in a court filing that the feeding programs should relocate to the apron of City Hall, roughly four blocks from the Parkway, because that site has adequate sanitation facilities and “there are less areas [there] to congregate, [so] those receiving food tend to walk to other areas with their food…which spreads the burden of having one large group in a concentrated area.”
But the plaintiffs, Chosen 300 Ministries, The Welcome Church, The King’s Jubilee and Philly Restart, say there’s an ulterior motive.
The ban’s true aim, they say, is to remove the homeless, considered an eyesore by some, from space near the Barnes Foundation, a celebrated art museum that recently moved from suburban Philadelphia to its new $150 million home on the tourist-heavy Parkway.
The ban, plaintiffs said in their June suit, “demonstrate[s] a determination to remove from the vicinity of the Barnes Foundation those that some view as undesirable to the public image of the City of Philadelphia.”
On Thursday, attorney Messing, for the plaintiffs, said that forcing his clients to feed the poor at a location prescribed by the city — City Hall — infringes their religious freedom because the ideal of traveling to needy populations is an essential part of their religious mission.
“The plaintiffs are fulfilling that mission and that religious observance by going to where the homeless and the hungry are,” he argued Thursday.
“The plaintiffs are engaged in the free exercise of religion. They’ve testified that their religious beliefs impel them to provide services, share food, comfort, fellowship with their homeless brethren [and that] they are called to do so where the homeless are,” Messing said Thursday.
And, he said, the feedings aren’t only a religious act, they’re an act of expression as well.
“This is expressive conduct,” he said.
The Parkway location is critical to their expression because they “believe that sharing food in a centrally located public place …serves the critical purpose of bringing widespread attention to the plight of the homeless. The programs elicit sympathy and understanding for the difficult circumstances of the homeless, and prompt some members of the public to take action on their behalf,” plaintiffs said in their suit.
The churches also fear that because many homeless people mistrust the government, moving the feedings to City Hall will result in a sharp decline in attendees.
The city’s ordinance “threatens to destroy the pastoral relationship between the plaintiffs and many of their congregants,” Messing said.
But an attorney for the city told Judge Yohn Thursday that the ban has nothing to do with religion.
“The regulation would affect any group that was engaging in this activity. It affects non-religious groups the same as it affects religious groups because it’s regulating the activity. The regulation…has nothing to say about who can or cannot be in the park space, it’s about the activity that goes on in the park space,” she said.
She said the ban isn’t content-based, and doesn’t target religious groups.
“The plaintiffs want to point out that there were picnics and others activities that are not regulated. But those other activities are not similar to this activity, not in terms of volume, frequency, trash, waste, sanitation or any of those issues are they similar to picnics and giving away free [product] samples,” she said.
And, she said, the feedings don’t even constitute speech.
“Nothing about the conduct here suggests that it was intended as speech or intended as anything other than a charitable mission. The indicia that the courts generally look to to determine speech- things like carrying signs, handing out literature, handing out pamphlets, wearing similar shirts- there was no testimony to any of that,” she said.
Addressing plaintiffs’ contention that less homeless people would attend feedings at City Hall, she said “a diminished audience does not mean that an alternative location is unacceptable.”
Judge Yohn on Thursday preliminarily enjoined the ban on homeless-feedings in Fairmount Park while he completes a full review of applicable law.”There are some very complex legal issues here,” he said.