WASHINGTON (CN) — The D.C. Circuit refused for the second year in a row to green-light a Good Friday prayer vigil organized by a Presbyterian reverend and involving no member of Congress so that he might get around capacity limits.
The three-judge panel issued the decision unanimously this morning, a day observed on the Christian calendar as Good Friday, to commemorate the crucifixion of Jesus Christ.
While the Rev. Patrick Mahoney wanted an injunction against the 19-person limit that the U.S. Capitol Police Board has imposed for events held on Capitol grounds in the aftermath of the insurrection that occurred on Jan. 6, 2021, the court affirmed Friday that the rule does not trample the First Amendment.
Mahoney wanted an injunction without even making a showing that he intended to have 20 or more people at the vigil on the West Lawn of the Capitol, or that the event he held every year prior to the Jan. 6, 2021, riot would draw such a crowd.
“On the other hand, the government’s security concern in limiting in advance the number of persons involved in demonstration activity in close proximity to the Capitol, and not being subject to last minute requirements or adjustments, is a weighty one,” says the unsigned ruling, which comes two days before Easter Sunday in the church calendar.
U.S. Circuit Judges David Tatel, a Clinton appointee, and Patricia Millett and Cornelia T.L. Pillard, both Obama appointees, were on the panel.
Mahoney also sought to hold the Good Friday vigil last year, but the board denied his request. And when he filed suit, U.S. District Judge James Boasberg sided with the board's reasoning that the government had a compelling interest to keep the area off limits to the public in light of the insurrection.
Unsatisfied with the outcome, Mahoney submitted a permit application for a large prayer vigil on the West Front Lawn of the Capitol on Sept. 11, 2021. The board again denied the application and again the reverend sued, which resulted in the board clarifying that he could hold the vigil on the West Front Lawn, so long as there were fewer than 20 participants. And if he wanted a larger crowd, the board said he could conduct the vigil at a nearby area still within the Capitol grounds.
Still unhappy, Mahoney submitted yet another permit application to hold a prayer vigil on Friday, April 15, 2022, with 25 participants. The board denied the application, and he filed a similar suit “seeking to shore up potential shortcomings in his prior action,” Boasberg wrote in his opinion denying Mahoney’s motion for preliminary injunction.
Millett wrote Friday in a concurring statement that the judgment in the case might not be the last because of the police board’s exception to the rule for demonstrations involving by members of Congress.
“Although the Government assuredly has a compelling interest in the security of the Capitol Building, it has done little to show that limiting permits to those speakers whose message has been given a thumbs up by a government official is narrowly tailored to its security rationale,” he wrote.
The problem is not that Mahoney did not seek approval or sponsorship for the vigil from a member of Congress, rather, he said the requirement itself is “constitutionally suspect.”
Selectively permitting speech — solely because a governmental actor approves it — is not even “remotely content neutral,” he said.
Millet emphasized that “the outcome in this case may well change depending on how the record develops on remand and how the contours of this sponsorship exception are fleshed out."
Over a decade ago, the D.C. Circuit also rejected Mahoney’s challenge to a law that prohibits protesters from writing with chalk on the street in front of the White House.
Courthouse News sent email requests for comment on Friday to Mahoney's attorney, Joshua Dixon, and U.S. Attorney Kenneth Adebonojo. They did not respond by press time.
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