The city’s policy did not expressly prohibit use of the park for religious activities or by religious groups. Instead, the city’s denial of the application was based on unchecked, arbitrary discretion – which is Constitutionally invalid.
Under the First Amendment to the United States Constitution, religious expression and speech are protected in traditional public forums such as public parks like that of Old Town Square in Fairfax. City restrictions on such freedoms are heavily scrutinized and must not discriminate against a particular viewpoint. Further, in traditional public forums, state actors cannot censor people or groups based on the content of their speech, except when there is a compelling state purpose and the restriction is both necessary and the wording narrowly tailored to achieve that purpose. Accordingly, the Supreme Court has ruled in other similar cases that in circumstances like these in which the forum is available to others and the event is open to the public, there is no Establishment Clause conflict. Additionally, in order for the state to require permits (i.e. approval) as a prerequisite for individuals or groups to engage in protected speech, it must follow very strict and objective criteria in decision making. To base such permits on vague discretion by officials making the individual decisions may be considered a prior restraint on protected speech and a violation of the First Amendment.
Fairfax City’s denial of Shepherd’s Heart’s application “was classic prior restraint, which is exactly what the Founders wanted to prevent when they drafted the First Amendment,” explained Gorman. “We used the Freedom of Information Act to get access to the city’s park policies. Even though they said it wasn’t allowed, there was nothing in writing to back it up. It was completely arbitrary.”
Gorman, feeling convinced of the Constitutional violation, contacted the Center for Religious Expression in Memphis, Tennessee who took on the case pro-bono.
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