Protesters at Gay Rally Lose Civil Rights Claim

CHICAGO (CN) - Christian protesters arrested for impeding pedestrian traffic at the 2006 Gay Games cannot sue the city of Chicago, the 7th Circuit ruled, finding no violations of the protesters' constitutional rights.

Volunteers for Repent America, a Christian ministry that spreads its message by engaging passerby in public places, mobilized a small group of protesters to attend the Seventh Annual Gay Games in July 2006. The Games, three days of athletic competition and cultural gatherings, included events at Soldier Field, Navy Pier and Wrigley Field.

After demonstrating around Soldier Field for two hours on Day 1, three Repent America volunteers were asked to move to a gravel area near the sidewalk to avoid disrupting traffic flow. Though immediately adjacent to traffic flow, the three claimed that their new location prohibited engaging attendees in "one-on-one presentation of the Gospel of Jesus."

The next day's event fared no better. Officers prevented five Repent America protesters from entering Navy Pier with protest signs, explaining that they could not demonstrate without a permit from the Metropolitan Pier and Exposition Authority (MPEA). Once shepherded into nearby Gateway Park, the officers continued to push protesters farther from the pier to avoid impeding traffic and made two arrests.

Closing ceremonies for the games were held at Wrigley Field. Police arrested one demonstrator for disorderly conduct after he refused to move from the street corner where he held a sign - a location officers said blocked the crosswalk.

Protesters Michael Marcavage, James Deferio, and Faith Deferio filed the suit, alleging First and 14th Amendment violations, as well as claims under the Illinois Religious Freedom Restoration Act.

They claimed that the officers' orders unconstitutionally inhibited their ability to speak and spread a religious message.

U.S. District Judge Milton Shadur rejected this claim, however, finding that the officers instructions were content-neutral regulations narrowly tailored to maintain an orderly flow of traffic. The 7th Circuit affirmed Tuesday.

"At oral argument, the plaintiffs were asked to provide whatever evidence they had of the officers' hostility toward their message; none was offered," Judge William Bauer wrote for a three-judge panel.

"This shows that the restrictions were content-neutral," he added.

"The alternate locations were within view and earshot of those traveling to the Games. We harbor no doubt that from these locations, the plaintiffs had ample opportunity to capture the attention of the Games attendees and supporters; they were only limited by their own stubborn refusal to move there."

On remand, the trial court must review Gateway Park's demonstration permitting policy, which requires groups to apply for permits at least seven days in advance and limits the frequency with which groups can submit an application. Though the policy does not specify what size groups require permits, the court expressed concern that it could be applied to an event as small as a single-person protest.

"It is worth noting that many other circuits have looked unfavorably on permit requirements for groups as small as the plaintiffs' group of five," Bauer wrote. "In addition to the Ninth Circuit, the Fourth, Fifth, Sixth, and Eighth Circuits have all found permit requirements for groups of ten and under to be either unconstitutional or constitutionally suspect. Such a powerful consensus can't be ignored.

"Absent a greater understanding of the rationale behind the MPEA's policy, we are left with the impression that the imposition of burdensome restrictions for small groups at Gateway Park might be overreaching."

Judge Daniel Hamilton dissented, holding that procedural restrictions prohibit review of the permitting policy.

"In the abstract, there might well be problems with applying the MPEA's permit requirement for demonstrations in Gateway Park," Hamilton wrote.

"The problem, as I see it, is that the constitutional question is before us not in the abstract but on a specific record of evidence and arguments that plaintiffs chose to present in the district court," he added.

"I would hold the plaintiffs responsible for their own tactical decisions and affirm the district court's judgments in all respects. By ordering a partial remand, my colleagues have taken a different approach regarding the MPEA's permit policy. There are attractive reasons for doing so. That approach gives the plaintiffs a second chance to get it right. Depending on what the evidence shows, that second chance might result in more robust protection of First Amendment rights for plaintiffs and others. The better approach, though, would be to adhere to a more orderly litigation process."

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