For an enhanced digital experience, read this story in the ezine.
In the case of Knights of Columbus Council 2616 v. Town of Fairfield, 2024 U.S. Dist. LEXIS 150374 (Conn. 8/24/2024), Plaintiff alleged the Defendant Town had violated their First Amendment rights to freedom of speech, the free exercise of religion, and to peaceably assemble for a special event in a particular public park of their choosing.
Plaintiff Knights of Columbus Council 2616 (the Knights 2616), is a local council of a national Catholic fraternal service organization, the Knights of Columbus. The Knights 2616 is located in Fairfield, Connecticut. Since 1983, the Knights 2616 has conducted an annual Christmas Vigil accompanied by a Nativity scene at one of the Town of Fairfield’s public parks. The purpose of the Christmas Vigil “is to advance the Keeping Christ in Christmas program,” which is an annual program led by the national organization of the Knights of Columbus to “encourage local councils and members to prompt their neighbors to shift from a preoccupation with materialism to the light of Christ and the spirit of giving through whatever efforts best suit the parish and community of the particular council.”
The Christmas Vigil begins on December 23 and ends on Christmas morning, December 25. During the Christmas Vigil, “one or more members of the Knights is present with the Nativity scene at all times.” The Nativity scene is composed of a “3-sided box, with small figurines of the Holy Family, angels, the magi (three kings), shepherds and livestock.” In addition, within the Nativity scene, the Knights post a 4’ x 8’ sign with six-inch letters stating, “the Nativity scene is not endorsed by the Town of Fairfield and is sponsored by the Knights of Columbus.”
Fairfield’s public parks are under the exclusive authority and control of the Parks and Recreation Commission. The Commission promulgated its own regulations concerning the use of public parks, which were administered through the Fairfield Parks and Recreation Department. The regulations provided that park properties would be made available for “Special Events,” including fairs, festivals, programs and specialty shows. The Commission published procedures on the Parks and Recreation webpage for an applicant to follow to obtain permission to hold a “Special Event” in a Fairfield public park.
Each year, Plaintiff had submitted a Special Events application to the department for a permit to host the Christmas Vigil in a Fairfield public park. Prior to 2020, and since its inception in 1983, Plaintiff had requested and “were immediately approved” to “host the Christmas Vigil at the Town Hall Green by the Director and/or Staff of the Department without requiring the Knights 2616 to appear before the Commission.”
2020 Special Event Application
In 2020, for the first time, Plaintiff applied to hold the Vigil at a different Fairfield public park, Sherman Green. Sherman Green is “located in the center of Fairfield, surrounded by restaurants and retail establishments, contains a large gazebo and is open to the sidewalks, street and to free public access.”
Plaintiff sought the change in location to Sherman Green because “holding the Christmas Vigil at Sherman Green would give it more visibility in the community, allowing the Knights to share their message to Keep Christ in Christmas more widely.” In contrast to the more visible Sherman Green, Town Hall Green was located on “a two-lane road in a quiet residential neighborhood with no traffic lights.”
COVID-19 Concerns
Around December 9, 2020, three weeks after applying for a Special Event permit, department staff informed Plaintiff the application with respect to Sherman Green was denied, citing coronavirus (COVID-19) concerns. Plaintiff, however, was “told they were allowed to continue to conduct the Christmas Vigil at the Town Hall Green.”
Perceiving the concerns about COVID-19 to be insincere, Plaintiff emailed department staff shortly thereafter seeking confirmation that “Fairfield Parks and Rec is not allowing any permits or events for the use of Sherman Green during the holiday season due to health concerns.” On December 13, 2020, Plaintiff had observed a large group gathering at Sherman Green to light a menorah.
When Plaintiff asked the town fire department chief if all events at Sherman Green were to be halted due to COVID-19-related health concerns, he indicated a menorah lighting and a Christmas vigil at Sherman Green were outdoor religious gatherings “exempt from the Governor’s executive orders regulating COVID-19.” The director of parks and recreation, however, indicated he would still recommend the Parks and Recreation Commission deny approval of Plaintiff’s requested location change of the Christmas Vigil from Town Hall Green to Sherman Green, given an earlier “backlash from residents about the Tree of Hope” display on the Sherman Green.
Religious Event Opposition
Plaintiff proceeded to request the Commission to review its application and a hearing was scheduled before the Commission on December 16, 2020. On the day of the hearing, the parks and recreation director emailed the Commission chairman and at least one other commissioner, as well as the town attorney, concerning Plaintiff’s requested change of location for the Christmas Vigil to Sherman Green. The director indicated he was “not in favor of this move as I feel it stirs the pot,” stating:
We have had many adamantly opposed to anything religious on the Sherman Green in recent months (even earlier today). I feel we should leave this display on the Town Hall Green as it has been there for 30 years without incident or complaint.
At the hearing, Plaintiff made a short presentation explaining the purpose of their Christmas Vigil “to advance the Keeping Christ in Christmas program,” including the reason for the move from the Town Hall Green to Sherman Green was “an increase in visibility.” The director reiterated his opposition to Plaintiff’s application, recommending the Commission deny the application “due to his concerns about community reaction,” stating:
I don’t believe that the Sherman Green is the right place; we can look at the past year at the things that have happened on the Sherman Green with the Tree of Hope, with patriotic displays, and just how the community has reacted.
In addition, the Commission chairman stated he would not be supporting Plaintiff’s request because the “few ceremonies that have taken place at Sherman Green” were “ceremonies that take place and then everything is removed.” As characterized by the chairman, the “creche” in the Christmas Vigil was “a display that would be presented there more than a ceremony.” The chairman, however, admitted “there was a ceremonial menorah lighting on the first eve of Hanukah on December 8th and one planned for the final night.” In addition, one of the commissioners had questioned “whether the Christmas Vigil was religious in nature.”
Following this discussion, the chairman advised Plaintiff that “the Commission would not be approving the move to Sherman Green.” As a result of the application being denied, Plaintiff held the 2020 Christmas Vigil on Town Hall Green.
Health Emergency Pretext
According to the Town, “the denial of the 2020 application was a valid discretionary action by the Town to mitigate the COVID-19 public health emergency.” The federal district court acknowledged that “courts are required to uphold governmental measures to protect public health,” unless they bear “no real or substantial relation to the object of public health or are beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Moreover, in reviewing governmental actions, the court recognized the applicable standard of review “preserves the authority of the judiciary to strike down laws that use public health emergencies as a pretext for infringing individual liberties.”
Under the circumstances of this particular case, the federal district court found Plaintiff had sufficiently alleged the Defendant Town’s “stated reason for denying their 2020 application, i.e., COVID-19 concerns, was pretextual.” Despite the Defendant’s “purported public health concern,” the court noted the department had approved a different group to host a “large group gathering” on Sherman Green for an event “only four days” after Plaintiff’s application to hold the 2020 Christmas Vigil on Sherman Green was denied based upon COVID-19 concerns.
2021 Permit Application
On August 31, 2021, Plaintiff applied for permission to hold the 2021 Christmas Vigil on Sherman Green. By this time, COVID-19 restrictions on outdoor gatherings had been lifted and “Sherman Green was regularly being used for all sorts of events including outdoor concerts.” In response, the parks and recreation department forwarded the following message from the Commission chairman:
Regarding the Knights of Columbus request, nothing has changed. A primary difference between their request and other approved events is that their request is for a display and the other requests being considered and approved recently are for ceremonies. As nothing has changed, they can continue to use the town hall location without seeking new approval but…we will not hear the request for the Sherman Green again.
Restricted Event Hours
On September 22, 2021, Plaintiff wrote to the Commission contending “its actions continued to violate the constitutional rights” of the Plaintiff, in particular the “irrationality of the ceremony and display distinction.” In an October 22, 2021 meeting to consider Plaintiff’s application, the Commission chairman appeared to have abandoned his “display vs. ceremony justification,” indicating “he did not support the Christmas Vigil because it lasted too many hours and took place overnight,” stating:
[T]here were 162 events since 2019, and of those events, 157 were either in the afternoon or concluded by 8 p.m. There were never any past 9 p.m. and only four of them went longer than four hours.
The chairman further stated, “[W]e support what you are doing; we just support it at the location you were using since 1989 the Town Hall Green.”
Plaintiff then inquired “whether the Knights 2616 could be permitted instead to leave the Nativity, unattended, on Sherman Green on Christmas Eve, just as other groups with the Tree of Hope had been allowed to leave their signs displayed overnight and unmanned.” The chairman rejected the request, stating without explanation by the Commission, that Plaintiff would be required to “remove the Nativity and shut down the vigil at 8 p.m. on Christmas Eve.”
In response, Plaintiff alleged the chairman’s “justification with respect to the hours of use was a pretext as the Regulations do not contain any time limitations on the use of public parks, nor is there any prohibition with respect to overnight use.” Moreover, Plaintiff alleged “a review of the public minutes from the Commission’s meetings” indicated “in the five years prior to the Knights 2616’s Christmas Vigil applications, the Commission did not deny a single application to use Sherman Green other than the Knights’ Christmas Vigil application.”
The Commission voted to deny Plaintiff’s 2021 special event application with respect to Sherman Green, but approved Plaintiff’s application to “hold the Christmas Vigil at Town Hall Green, which was also for overnight use and the same extended period of time.”
2022 Permit Approval
Subsequent to filing its lawsuit in federal district court, Plaintiff submitted an application to hold its 2022 Christmas Vigil on the Sherman Green. This application was heard at the Commission’s December 21, 2022 meeting. Following discussion, Plaintiff’s request to move to the Christmas Vigil to Sherman Green was approved by a vote of 7-1, with one abstention.
First Amendment Claim
Under the circumstances of this case, the issue before the federal district court was whether the denial of Plaintiff’s applications constituted a violation of a First Amendment right to freedom of speech and peaceful assembly. As characterized by the court, public parks, like Sherman Green, are the “quintessential public forums” in which “the government’s authority to regulate speech or expressive conduct...is sharply circumscribed”:
The classic examples of traditional public fora are streets, sidewalks, and parks, which are properties that have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.
The court further noted a “prior restraint on speech, i.e., any regulation that gives public officials the power to deny use of a forum in advance of actual expression,” including “a requirement that a permit be obtained in advance of the proposed speech or conduct” is “not unconstitutional per se, but it “bears a heavy presumption against its constitutional validity.”
Permitting Scheme
In addition, to be considered constitutional under the First Amendment, the federal district court acknowledged a permitting scheme “may not delegate overly broad licensing discretion to a government official and must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.”
In this particular instance, the federal district court found denial of Plaintiff’s applications was based upon “constitutionally impermissible reasons,” which had been “enabled by a permitting scheme that grants the Commission unbridled discretion in considering applications for Special Event permits”:
The Special Events Permitting Scheme does not satisfy the requirement that it contain adequate standards to guide the official’s decision. It contains no criteria, restraints, temporal limits, or guidelines to which the Commission must adhere when ruling on an application. Nor does it contain a method to appeal the Commission’s determination or require that the Commission furnish justifications for its decisions with respect to applications for Special Events Permits.
Content-Based Application Denial
In this case, Plaintiff had alleged the Defendant Town’s actions in denying permission to hold the Christmas Vigil on the Sherman Green were “content based.” In so doing, Plaintiff argued the Special Events Permitting Scheme had been applied in a manner, which “distinguished favored speech from disfavored speech on the basis of the ideas or views expressed.” In particular, Plaintiff alleged “the Commission permitted other groups to use Sherman Green in a manner that was inconsistent with the reasons the Commission gave for denying the Plaintiff’ applications”:
[A]nother religious group was granted permission to host a large group gathering on Sherman Green around the same time the Plaintiff[s] were denied permission to hold the Christmas Vigil on Sherman Green purportedly due to concerns related to COVID-19….
[O]ther groups were granted permission to set up temporary ice rinks overnight for three days at a time, or allowed to leave signs unattended and overnight for extended periods of time on Sherman Green, while a Commissioner opposed the Plaintiff permit application because the Christmas Vigil was too many hours and took place overnight.
The federal district court acknowledged “strict scrutiny” judicial review would be appliable in determining the constitutionality of a regulation that “restricts expression on the basis of its content.” Strict scrutiny judicial review would require the Defendant Town to show that the permitting scheme restriction “serves a compelling governmental interest, is necessary to serve the asserted compelling interest, is precisely tailored to serve that interest, and is the least restrictive means readily available for that purpose.”
In this case, the federal district court found the Defendant Town had offered “no arguments as to why their actions under the Special Events Permitting Scheme survive strict scrutiny.” The court, therefore, denied Defendant’s motion to dismiss Plaintiff’s claims that the Town had violated its First Amendment right to freedom of speech and right to peaceably assemble.
Free Exercise of Religion
Plaintiff also had alleged that the Defendant Town had violated the First Amendment right to the free exercise of religion. As described by the federal district court, to be considered constitutional under the Free Exercise Clause of the First Amendment, a law that, incidentally, “sometimes burdens “the external practice of religion” must be “neutral and generally applicable.” On the other hand, the court noted a law is “not neutral if it explicitly singles out a religious practice or targets religious conduct for distinctive treatment”:
A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions, or if it prohibits religious conduct while permitting way.
Accordingly, the court held “the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Plaintiff’s religious beliefs”:
Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature…. The Free Exercise Clause bars even subtle departures from ‘neutrality’ on matters of religion….
Factors relevant to the assessment of governmental neutrality include the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision-making body.
Since the Town’s permitting scheme contained “no criteria, restraints, or guidelines to which the Commission must adhere when ruling on an application,” the federal district court found this “lack of standards” created “a mechanism for individualized exemptions where secularly motivated conduct could be impermissibly favored over religiously motivated conduct.”
As a result, the federal district court held Plaintiff had “alleged facts sufficient to show that the defendants’ treatment of the Plaintiff’s applications violated the Free Exercise Clause because the Special Events Permitting Scheme was not applied in a way that was neutral and respectful.” In particular, the court noted, during the 2020 application hearing, one of the commissioners had explicitly questioned “whether the Christmas Vigil was religious in nature.” In the opinion of the federal district court, such comments “could be understood as members of the Commission engaging in the impermissible practice of evaluating the religious significance of the Plaintiff’s claimed religious practice.”
The federal district court, therefore, denied the Defendant Town’s motion to dismiss Plaintiff’s claim based upon an alleged violation of the First Amendment right to the free exercise of religion.
Case Moot?
Since the 2022 application was ultimately approved, Defendant had argued Plaintiff’s claims were moot and the lawsuit should be dismissed because the underlying controversy had been effectively resolved.
As described by the federal district court, a “case becomes moot” under the U.S. Constitution “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” The court, however, noted “a defendant’s voluntary cessation of allegedly illegal conduct is generally not enough to render a case moot”:
Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.
Accordingly, the federal district court would find this case to be moot and dismiss Plaintiff’s lawsuit courts only “after a defendant voluntarily discontinues challenged conduct” under the following circumstances:
(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.
In this particular case, the federal district court found Defendant had failed to show that it was “absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Moreover, the federal district court would “view voluntary cessation of challenged conduct with particular skepticism where it appears to track the development of the litigation” pursued by Plaintiff:
After denying the Plaintiff’s applications for a Special Event Permit for two years, the Commission voted to approve the Plaintiff’s application for the first time seven days after the Plaintiff filed suit. Of note, several of the Commissioner’s referred to the lawsuit during the discussion that preceded the vote approving the Plaintiff’s application. Most notably, one of the Commissioners stated… “It’s upsetting that, because you didn’t like the outcome, and it’s clear to me that you’re not following the rules, you brought a lawsuit into the mix to get your way.”
In the opinion of the court, approval of Plaintiff’s application in 2022 was, therefore, insufficient to assure that the alleged practice of denying the Plaintiff’s applications for constitutionally impermissible reasons would not recur in the future. In particular, the court noted the Defendant continued to “defend the legality of their actions” and, moreover, it was “not clear why they would necessarily refrain from resuming these actions in the future.”
As a result, the federal district court held Plaintiff’s claims were “not moot” and denied the motion to dismiss the lawsuit.
Conclusion
The federal district court, therefore, denied Defendant’s motion to dismiss Plaintiff’s lawsuit and ordered this case to proceed for further trial proceedings to fully consider Plaintiff’s First Amendment claims against the Defendant Town of Fairfield.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Emeritus Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Archive of articles (1982 to present).