The Eleventh Circuit sees neither a free speech nor a free exercise
problem with time, place, and frequency restrictions on public
feedings in traditional public fora. First Vagabonds Church of God v.
City of Orlando, 638 F.3d 756 (11th Cir. 2011) (en banc) (assuming
without deciding that feeding is expressive conduct, restriction
upheld under O'Brien), reinstating First Vagabonds Church of God v.
City of Orlando, 610 F.3d 1274, 1285-1292 (11th Cir. 2010) (public
feeding restrictions are generally applicable laws that do not violate
the free exercise clause, applying Smith, or Florida's RFRA).
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting James Edward Maule <ma...@law.villanova.edu>:
The city (in particular, the mayor) argue that operating the feeding
stations on the parkway "could rob homeless people of dignity,
spread food-borne disease, and degrade the park with trash and human
waste." The religious organizations claim that this is a red
herring because they have been certified after taking the city's
food-sanitation course, and clean the area. They claim that the city
is trying to take over the feeding by funneling the homeless into
inside operations run by the city, but point out that the city lacks
the necessary facilities to handle all of the homeless. The city
responded with a proposal for a temporary transition, letting the
organizations do outside feedings in the city hall plaza. The
religious organizations reply that the feedings need to take place
where the homeless live, and that this is a matter of religious
principle for them.
Others - including commentators not connected with the organizations
- claim that the entire issue is a desire by the city to move the
homeless people who live on the parkway to other locations. The
parkway, for those not familiar with the city, is one of two grand
avenues of culture, with the Art Museum at the head, the Franklin
Institute, the newly relocated Barnes Art Museum, several other
museums, the Roman Catholic cathedral, etc, gracing the parkway (the
other avenue is the Avenue of the Arts - Broad Street - with
concert halls and some other institutions). In his testimony, the
mayor denied that the relocation of the Barnes was a factor,
claiming that his goal to end homelessness has existed for decades,
and that feeding the homeless doesn't end homelessness but perhaps
even enables it. During his testimony, to quote the article,
"Nutter testified somberly and described his opposition to feeding
homeless people in public in religious terms, as 'a calling.' "
That seems to infuse the case with the additional question of
whether the mayor is injecting HIS theological beliefs (about how
to deal with homelessness) into the dispute. That opens up
interesting questions about dealing with the private theological
beliefs of a public official that color or even morph into the
official's political positions. Are they protected? Are they
relevant to the issue?
It's unclear how the city's health and safety concerns are
alleviated by moving the feeding areas from the parkway to city hall
plaza. The only difference is that it relieves the parkway of trash
and waste, but city officials testified that their goal was not to
remove the homeless from the parkway.
According to another article, a pastor of one of the organizations
explained in her testimony that the congregation holds worship
services at the location where they subsequently feed the homeless.
The ordinance bans feeding, not worship. But what if the feeding is
considered by the religious organization to be part of worship? (I
don't know if it so thinks or believes, and it doesn't appear as
though that question was asked or answered.)
In some respects, the case seems to involve a variety of contested
factual questions. What is the city's goal and purpose? Is it really
trying to regulate public health or is it trying to accomplish
something else? Is there less risk of food contamination if the
feedings occur at city hall plaza rather than the parkway? How does
moving the feeding locations improve the dignity of the homeless?
That would suggest the case is one that turns on the facts.
Yet the U.S. District Judge hearing the case said, when setting oral
argument for tomorrow, "This may be a little more complex than it
seemed before." But that doesn't necessarily mean it's more
challenging than a final exam question in a First Amendment course.
Jim Maule
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman,
Paul <paul.finkel...@albanylaw.edu>
Sent: Wednesday, July 11, 2012 10:40 AM
To: Law & Religion issues for Law Academics
Subject: RE: Ban on Feeding Homeless
Is this a standard, time, place, manner restriction with pretty
standard "police powers" to regulate public health?
Would the church members be allowed to hold a public march on the
same parkway, or leaflet cars on the parkway?
This story almost sounds like some final exam question in a First
Amendment course.
----------------------
Paul Finkelman
President William McKinley Distinguished Professor of Law and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, NY 12208-3494
518-445-3386 (o)
518-445-3363 (f)
www.paulfinkelman.com
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James
Edward Maule
Sent: Wednesday, July 11, 2012 10:35 AM
To: Law & Religion issues for Law Academics
Subject: Ban on Feeding Homeless
For those not picking up on Philadelphia area stories, this might be
of interest, perhaps especially to those researching and writing in
the area.
For some time, religious and other organizations have been feeding
homeless people at outdoor sites in Philadelphia. Citing public
health and other concerns, the city banned the practice. The
religious organizations have challenged the ban, claiming that it
violates their (and their members') First Amendment free exercise
rights ("What they will not compromise on, however, is what they
described as a God-directed mission to minister to the needs of
homeless people where they live - on the parkway.")
Yesterday testimony concluded, and oral argument will now take
place. Enforcement of the ban has been stayed pending the litigation.
http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_part_of_plan_to_end_homelessness.html
Jim Maule
Professor of Law
Villanova University School of Law
ma...@law.villanova.edu
http://vls.law.villanova.edu/prof/maule
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