ST. LOUIS (CN) — A city ordinance preventing a St. Louis pastor and his associate from passing out bologna sandwiches instead of granola bars to homeless people violates their constitutional rights, the religious leaders argued before the Eighth Circuit on Thursday morning.
“There are three elements to the appellants' religious practice, each of which has been spelled out in the record,” their attorney David Roland of the Freedom Center of Missouri told the three-judge panel. “First, they believe they have a religious obligation to seek out hungry people wherever they might be. They believe that they cannot expect people in need to come to them. This is important … the ordinance does in fact prohibit them from going from one place to another if they are operating under a permit.”
City counselor Abby Duncan contested that assertion.
“Nonperishable food or non-potentially hazardous food can be distributed at any time,” Duncan said. “There's no permit that is required for that. And that's a key distinction as to why plaintiffs cannot demonstrate substantial burden because it does not apply to all foods. It applies to potentially hazardous food.”
In January 2019, Pastor Raymond Redlich and his associate, Chris Ohnimus, filed a federal lawsuit against St. Louis claiming their First and 14th Amendment rights were violated after being cited by city officials for feeding the homeless without a permit.
U.S. Magistrate Judge Nanette A. Baker dismissed the case last year, prompting the appeal to the St. Louis-based Eighth Circuit. In a 42-page opinion, Baker found that Redlich and Ohnimus did not prove that their fundamental right to association was at issue.
Duncan framed Baker’s finding at the center of her argument on behalf of the city Thursday.
“When it comes to demonstrating substantial burden, plaintiffs must show that it is inherent in their religion and a substantial burden not to distribute potentially hazardous foods and I think that's where the rub comes,” Duncan said.
The city attorney used previous freedom of expression cases such as those involving burning an American Flag, burning drafts cards and marching in a parade as examples to show how the plaintiffs’ arguments fall short.
“In the analysis the courts are really focused on what does an observer from the outside perceive and it's not just what the intent of the message is, but it's what the observer would understand from that conduct,” Duncan said. “And in this case, the plaintiffs admitted as much that if someone were to walk by and see them ministering to the homeless by way of giving them food, that passersby would not understand that that was a religious message being communicated.”
Roland said the passersby are not the target of his clients’ message.
“I guarantee the homeless people receiving the food see the message,” Roland told the three-judge panel. “I believe that the message is conveyed regardless of whether there's speech added to it, but in this situation, there is frequently speech added to it.”
U.S. Circuit Judge James B. Loken, a George H. W. Bush appointee, asked Roland why his clients couldn’t just pass out peanut butter and jelly sandwiches.
“The third element [of the appellants’ religious practice] is that they need to provide a nutritionally balanced meal that is similar to what ordinary people would eat,” Roland said. “That's part of respecting the dignity of the person that they're serving.”
U.S. Circuit Judge Jane Kelly, a Barack Obama appointee, pushed the issue of serving peanut butter sandwiches and granola bars.
“If they just have peanut butter sandwiches and granola bars, they might be able to provide those in one fixed location, but they could not do so immediately and they could not do so by moving from one place to another,” Roland said. “If they went from one place to another then they will be acting as a mobile food establishment.”
U.S. District Judge Kate M. Menendez, a Joe Biden appointee sitting by designation from the District of Minnesota, questioned Duncan about that aspect of the law.
Duncan said the ordinance does not include a mobility restriction if the food is nonperishable.
“The city has demonstrated in their record of real need for this ordinance,” Duncan said. “There has been city homeless who have fallen ill to foodborne illness because of illegally distributed food.”
The court took the case under advisement. A decision is expected later this year.
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