SCOTT M. GALINDEZ, Appellee,       No. (Cr. Nos. 87-60, 87-158)

STEPHEN SEMPLE, Appellee           No. (Cr. No. 87-61)

WILLIAM THOMAS, Appellee,          No. (Cr. No. 87-62)

PHILLIP JOSEPH, Appellee,          No. (Cr. No. 87-63)

ELLEN THOMAS, Appellee.            No. (Cr. No. 87-64)



Appellant respectfully moves for summary reversal of the order of the District Court, the Honorable Charles R. Richey, entered on April 23, 1987 dismissing the informations in the above-captioned cases. Appellees were each charged with unlawful camping in Lafayette Park in violation of 36 C..R.F. §7.96(i).

The District Court dismissed the informations because it found that camping in Lafayette Park in connection with an anti-nuclear vigil was protected by the free exercise clause of the First Amendment, and because the government did not show that enforcement of the regulation against appellees was essential to accomplish an overriding governmental interest. Appellant's motion to reconsider was denied by the District Court on May 26, 1987, and appellant then filed a timely notice of appeal.

Appellant submits that the District Court's decision that appellees' act of camping in Lafayette Park is entitled to protection as a free exercise of religion is unsupported by the record, is analytically flawed, and ignores the Supreme Court's decision in Clark v. Community for Creative Non-Violence, [CCNV]468 U.S. 288 (1984), which recognizes the government's substantial and overriding interest in enforcing the very regulation at issue here in the face of a First Amendment claim. The merits of appellant's arguments are "so clear" that summary reversal is warranted. Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.) (per curiam), cert. denied, 449 U.S. 994 (1980); accord Ambach v. Bell, 686 F.2d 974, 979 (D.C. Cir. 1982).


At approximately 10:00 p.m. on December 21, 1986, United States Park Police Officer Peter Ward noticed appellees lying on the ground, in or under sleeping bags and blankets, near the


south sidewalk in Lafayette Park. 1/ Officer Ward watched appellees for the next four hours; during that time, appellees did not move. Shortly before 2: 30 a.m. on December 22, 1986, Officer Ward issued citations to appellees for camping in Lafayette Park in violation of 36 C. F. R. §7.96(i)(1)(1986) 2/

1/ Lafayette Park, a roughly seven acre square located across Pennsylvania Avenue from the White House, is a Memorial-core area park -- " a garden park with a . . . formal landscaping of flowers and trees, with fountains, walks and benches." Clark v. CCNV, 468 U.S. at 290 (quotations and citations omitted).

2/ The United States Department of the Interior, through the National Park Service, has been charged with responsibility for the management and maintenance of all National Parks. The National Park Service is required to

promote and regulate the use of the ... national parks ... by such means and measures as conform to the fundamental purpose of said parks . . ., which purpose is to conserve the scenery and the national and historic objects and the wildlife therein and to provide for the enjoyment of the same in such a manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. §1. The Secretary of the Interior is authorized to promulgate rules and regulations for the use and management of these parks in accordance with the purposes for which they were established. 16 U.S.C. §3, 1a-1.

Pursuant to this authority, the Secretary of the Interior has adopted regulations permitting camping in National Parks only in campgrounds designated for that purpose by the Superintendent of Public Parks. 36C.F.R. @§7.96(i). No campgrounds are -- or have been -- designated in the Memorial-core area. "Camping" is defined as

"the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. Id.

The regulation further provides:

The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaged. Id.

Notably' the regulations specifically authorize holding -- "demonstrations", "vigils", "religious services", or other "forms of conduct which involve the communication or expression of views or grievances engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd of onlookers" in Lafayette Park. 36 C.F.R. 7.96(g). A permit is not required if twenty-five persons or less are involved. 36 C.F.R. §7.96(g)(2)(i). Lafayette Park is not closed at night, and the regulations interpose no bar to an around-the-clock demonstration.





On March 10, 1987, these cases were referred to United States District Judge Charles R. Richey. On April 6, 1987, Judge Richey granted the government's motion to consolidate appellees' cases for pre-trial purposes only, and scheduled a pre-trial motions hearing for April 23, 1987.

On or about April 15, 1987, appellee William Thomas filed several pre-trial motions, including a "Motion To Proffer Evidence In Support Of A Defense Of Necessity." In that motion, Thomas argued that nuclear weapons pose "a threat of death or great bodily harm" to humanity, id. at 4, that "long-term communicative activity" is necessary to avert this threat, id., and that his actions in Lafayette Park are the only means available to him to draw "public attention" to his views and create a "substantial public effect. " Id.


Thus, Thomas concluded that he had

no reasonable alternative but to break the regulation, because his financial situation, moral responsibility, and threat of death or harm to humanity combined to leave defendant no option but to do the so-called criminal act.

Id. at 5.

On April 22, 1987, the day before the scheduled hearing, William Thomas filed an additional motion, titled "Motion to Dismiss By Reason of An Act of God, " and an attached "Declaration." In his motion and declaration, Thomas "incorporated" his necessity defense motion, id. at 1, and argued that he was required, as a result of a "chain of events" originating with an "Act of God, " to conduct a vigil against nuclear proliferation in Lafayette Park. Thomas appears to have reasoned as follows: (1) in August of 1974, he experienced a religious conversion -- an "Act of God" -- and began studying the Bible and other "holy books", Declaration at 1, 2; (2) Thomas ultimately concluded that he must abandon his material possessions, and did so, id.; (3) Thomas also came to believe that nuclear weapons pose "a clear potential to eliminate life from the Earth", id. at 3; (4) Thomas "decided to cease being an American citizen," because the United States maintained a nuclear arsenal, and left the United States, id.; (5) Thomas was "forcibly brought" back to the United States from England by unknown government "agents", id.; (6) unable to leave the United States, Thomas began his vigil in Lafayette Park because it we" his "duty" to attempt to change the government's views on nuclear arms, Motion at 1, 2; Declaration at 3; (7) camping, according to Thomas, is "expressive action" related to his vigil. Motion at 1, 3.

Thus Thomas explained:

the contested activity {expressing/camping) was executed by Thomas in an effort to perform his individual duties honestly, faithfully, and to the best of his ability, directly and proximately accruing from an Act of God which produced a chain of events, and influenced Thomas' thinking in such a manner as to preclude him from acting in any other manner while yet fulfilling his religious and moral obligations. Id. at 3. 3/

On April 23, 1987, William Thomas, Ellen Thomas, Phillip Joseph, and Stephen Semple, appeared for the pre-trial hearing before Judge Richey. Appellee Scott Galindez was absent (Tr. 5). 4/ Galindez' attorney in another case was appointed to represent him at the hearing (Tr. 11).

3/ Thomas provided perhaps the clearest summary of his thinking in yet another motion that he submitted in this case:

Since June 3, 1981 Thomas has been devoting as much of his time and energy as possible to communicating opinions with respect to the relative insanity and impracticality of genocidal weapons. Both to illustrate his sincerity, as well as to pursue personal moral perfection, Thomas has taken a vow of poverty and lives without accommodations as a symbolic statement vis-a-vis the morality of protecting an individual or natural life-style through the expedient of force and violence. So that he may be available to the general public for purposes of communication, Thomas spends as much time as possible in Lafayette Park, a traditional public forum. Response To The Government's Opposition To Defendant's Motion To Dismiss For Lack of Offense, at 2-3.


4/ Parenthetical references preceded by "Tr." refer to the transcript of the pre-trial proceedings on April 23, 1987.


All of the appellees, including Galindez through his attorney, joined in the motions filed by William Thomas (Tr. 22).

After denying several of Thomas' motions (Tr. 22-42), including his motion to proffer a necessity defense (Tr. 41-423, the Court turned to Thomas' "Motion to Dismiss By Reason Of An Act of God" (Tr. 42). The Court questioned Thomas, who was not placed under oath, as follows:

THE COURT: Your theory here is that you have engaged in this protest and were engaging in activity on the day of your arrest in the instant case because God told you to do it?

W. THOMAS: Yeah, you could say --

THE COURT: Pardon?


THE COURT: And that to have done otherwise would have been a violation of the free exercise of rights clause which all
citizens enjoy under the First Amendment, of the Bill of Rights, to the Constitution. Is that correct?

W. THOMAS: I think that is fairly accurate.

THE COURT: Fairly accurate? Is it right or not?


THE COURT: All right.

W. THOMAS: Yes. It is right.

THE COURT: Let me ask you this, Mr. Thomas: Does your act of demonstrating and protesting with these signs and whatever else you

5/ Ellen Thomas and Stephen Semple were represented at the hearing by counsel (Tr. 13, 17-18). William Thomas and Phillip Joseph, after inquiry from the Court, elected to proceed pro se (Tr. 15, 16).


do or are alleged to have done at or near the Lafayette Park at the time of your arrest in this case form a central part of your religious belief?

W. THOMAS: I believe that it is my religious belief--

THE COURT: I just ask you yes or no.

W. THOMAS: I think that is reflected in the--

THE COURT: The answer to the question is yes- --


THE COURT --or no? And your answer is yes?

W. THOMAS: Yes (Tr. 43-44).

The Court then asked each of the appellees whether they wanted the court or a jury to determine whether they were sincere in their "free exercise" claim (Tr. 45).

Each of the appellees present, and Galindez through his attorney, indicated that they wanted the Court to decide (Tr. 46-47). 6/

Addressing all of the appellees, the Court stated its understanding that "you have put forth in your motion here a sincere belief that what you did was based on religious grounds or an Act of God. Is that correct?" William Thomas said "yes"; none of the other appellees responded. (Tr. 48).

The Court asked the prosecutor if she had a response. The prosecutor replied, "I will do the best I can, having just

6/ Phillip Joseph immediately changed his mind and informed the Court that he wanted "to have a jury decide it" (Tr. 47-48). The Court replied, "You have already waived it. It is too late" (Tr. 48).


received the motion" (Tr. 48).7 The prosecutor stated that she did not believe that appellees had proffered a legitimate defense "regardless" of the sincerity of their beliefs (Tr. 48), and that she would "object to any of these defendants being allowed to prefer their religious beliefs, again however sincere they may be, as a defense at this time, because I don't think it is appropriate" (Tr. 48-49). The Court asked the prosecutor if the government "wish[ed] to prove any governmental interest" in preventing appellees from sleeping in the park. The prosecutor replied that the government has "no interest per se in prohibiting any of these particular defendants from sleeping in the park. The government's interest is in enforcing the regulations which are designed to protect the National park lands" (Tr. 49). The prosecutor declined an opportunity to cross-examine Thomas, and the Court took a short recess (Tr. 49).

When the Court returned, it asked counsel for Semple, Ellen Thomas, and Galindez, and Joseph directly, whether their answers to the questions that it had asked William Thomas would be the "same" (Tr. 50-51). They all answered "yes" (Tr. 50-51). The Court then dismissed the informations against each appellee on the ground that their actions were protected by the free exercise clause of the First Amendment. The Court found that appellees "sincerely did what they did based upon a sincerely held religious belief, " and that the government had failed to show a

7/ The prosecutor indicated that she had received the motion, which was filed on April 22, 1987, moments before the hearing (Tr. 48).


compelling interest as to why the prohibition on camping should be enforced against these particular defendants (Tr. 51-52). In a written opinion issued later that day, the Court stated that the government ''did not contest the sincerity of defendants' beliefs or that defendants were acting at the time of their arrest pursuant to a sincerely held religious belief" (Memorandum Opinion of April 23, 1987, at 2),8 and concluded that the government's general interest in enforcing the anti-camping regulation was not sufficient to override appellees' free exercise claim (id. at 3).

On May 1, 1987, the government moved for rehearing and reconsideration. In its motion, the government noted that the prosecutor had been surprised at the Court's treatment of the motion as a free exercise claim, viewing it instead as a supplement to Thomas' motion to proffer a necessity defense. The government further noted that because of the last minute filing of the motion, it had not had a fair "opportunity to examine the relevant authorities" or otherwise respond. The government argued that rehearing and reconsideration were warranted because appellees had failed adequately to show that in camping in Lafayette Park they were acting pursuant to a religious belief or practice, and had failed to show that the prohibition on camping burdened the exercise of their religion. In addition, the government stressed that even if appellees' camping fell within

8/ The District Court's opinion of April 23, 1987, dismissing the informations, and its opinion of May 26, 1987, denying the government's motion for rehearing and reconsideration, are attached hereto.


the protection of the free exercise clause, the Supreme Court, in Clark v. Community for Creative Non-Violence [CCNV], 468 U.S. 288 (1984), had recognized the government' s substantial and overriding interest in enforcing these very anti-camping regulations in the face of a legitimate First Amendment claim.

On May 26, 1987, the Court denied the government's motion for rehearing and reconsideration. The Court stated that it had "specifically asked if the government was prepared to argue the motion and the government responded affirmatively" (Mem. Op. of May 26, 1987, at 2). 9/ The Court found that the government, by "admitting the sincerity of [appellees'] beliefs and by failing to challenge the tie between the belief and conduct," had made further inquiry by the Court "unnecessary" (id.). The Court stated that appellees had shown that "their vigil-like activities in the park were religiously based" and that they had been arrested as a result of acts which were "religiously motivated" (Id. at 5). The Court concluded that the anti-camping regulation burdened appellees in the exercise of their religion because the Court

could conceive of no way in which defendants could remain in Lafayette Park for long-term vigils without sleeping and thereby running afoul of the regulation. [Id.]

9/ The District Court is mistaken. Although government counsel could have requested additional time to respond, the Court never asked counsel if she was "prepared" to argue the motion. Nor did the prosecutor "affirmatively" state that she was prepared. Rather, in reply to the Court's inquiry as to whether the government had a "response", the prosecutor stated, "I will do the best I can, having just received the motion" (Tr. 48).


The Court did not explain in its opinion what religious beliefs or practices it was protecting by dismissing the informations, or why appellees' beliefs were religious. Nor did the Court mention the Supreme Court's decision in Clark v. CCNV. 10/


The District Court's decision that appellees' camping in Lafayette Park is entitled to protection as a free exercise of religion lacks adequate support in the record, is analytically flawed, and ignores the Supreme Court's decision in Clark v. CCNV.

The District Court's decision dismissing the informations in these cases was wrong in every respect. Appellees failed to satisfy their burden of showing that they were engaged in the exercise of a religion and that the prohibition on sleeping in Lafayette Park burdened their religious beliefs or practices. Furthermore, even assuming that appellees demonstrated that their activities were religiously inspired, the District Court's decision is fundamentally flawed. The Court was wrong in equating "religiously "motivated" speech with a religious observance or practice; appellees' vigil was entitled to free

10/ On May 12, 1987, after the hearing and the Court's order dismissing the informations but before the Court issued its order denying the government's motion to reconsider, William Thomas filed with the Court the "Declarations" of Phillip Joseph, Steven Semple, and Ellen Thomas. These "declarations, " which are not sworn, bear what purport to be the signatures of Joseph, Semple, and Ellen Thomas. The District Court did not refer to these declarations in its order denying the government's motion to reconsider, and it does not appear that the Court considered them. In essence, these declarations indicate that Joseph, Semple, and Ellen Thomas are followers of Jesus Christ, and that their religious beliefs require them to speak out against the "wrongs" they perceive in society, one of which is nuclear proliferation.


speech protection, not to the protection of the free exercise clause . Similarly, the Court was wrong in concluding that camping was protected as an exercise of religion, a conclusion it reached not because camping is a religious practice or ritual, but because camping made it easier for appellees to conduct their "religiously-motivated" vigil. Finally, the Court erred in ignoring the Supreme Court's decision in Clark v. CCNV, which recognizes the government's substantial and overriding interest in enforcing the prohibition on camping even in the face of a First Amendment claim.- Summary reversal of the District Court's order is plainly mandated.

A. The District Court's Decision
Lacks Adequate Support In The Record.

The free exercise clause of the First Amendment proscribes government action that impermissibly burdens religious liberty. Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963). Only religious beliefs and practices are protected by the free exercise clause. Thomas v. Review Board, 450 U.S. 707, 713 (1981) (free exercise clause "gives special protection to the free exercise of religion"); Wisconsin v. Yoder, 406 U.S. at 215-216; Sherbert v. Verner, 374 U.S. at 402 403. As the Supreme Court explained in Wisconsin v. Yoder:

"[I]f the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claim would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.


406 U.S. at 216; see Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1034 (3rd Cir. 1981) (free exercise clause "does not protect all deeply held beliefs, however 'ultimate' their ends or all consuming their means"), cert denied, 456 U.S. 908 (1982). A religious practice must be central to the claimant's religion to be entitled to First Amendment protection. See Wisconsin v. Yoder, 406 U. S. at 216, 217 (Amish practice of withdrawing children from public school after the eighth grade "fundamental" and "mandated by the Amish religion"); Sherbert v. Verner, 374 U.S. at 406 (observance of the sabbath a "cardinal principle" for Seventh Day Adventists); Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, Ohio, 699 F.2d 303, 306 (6th Cir. 1983) (practice must be "integrally related" to underlying religious beliefs).

Although a reviewing court may not inquire into the ultimate truth or falsity of a religious belief, United States v. Seeger, 380 U.S. 163, 185 (1965), it is required to determine whether a particular set of ideas constitute a religion, since "the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests." Wisconsin v. Yoder, 406 U.S. at 215-216; accord, Africa v. Commonwealth of Pennsylvania, 662 F.2d at 1030-1031; Founding Church of Scientology v. United States, 409 F.2d 1146, 1160 (D.C. Cir.) (legal system, when confronted with a free exercise claim, requires determination of whether a given group or set of beliefs is or is not


religious"), cert. denied, 396 U.S. 963 (1969). 11/ A party invoking the free exercise clause to shield himself from otherwise legitimate governmental regulation has the burden of showing that the challenged activity is religious in nature and that the challenged regulation infringes upon his religious belief or practice. Abington School District v. Schempp, 374 U.S. 203, 233 (1963) (party invoking free exercise clause as a defense has burden of demonstrating the "coercive effect of the enactment as it operates against him in the practice of his religion"); Wilson v. Block, 708 F.2d 735, 740 (D.C. Cir.) (party asserting free exercise claim has "initial burden" of proving that regulation infringes upon a religious belief or practice), cert. denied, 464 U.S. 956 (1983); Menora v. Illinois High School Association, 683 F.2d 1030, 1035 (7th Cir. 1982). Even when the government has failed to challenge a party's claim that it is engaged in the exercise of a religion, the claimant must still, at the very least, make a prima facie showing that its actions are religious in nature in order to be accorded the protection of the First Amendment. Founding Church of Scientology v. United States, 409 F.2d at 1160.

11/ The task of defining religion for First Amendment purposes has been the subject of much scholarly debate. See, e.g., Note, Developments In The Law -- Religion And The State, 100 Harv. L. Rev. 1607 (1987); Greenawalt, Religion As A Concept In Constitutional Law, 72 Cal. L. Rev. 753 (1984); Note, Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056 (1978); Boyan, Defining Religion in Operational and Institutional Terms, 116 Pa. L. Rev. 479 ( 1968) . These commentators agree, however, that the free exercise clause requires courts, as a threshold matter, to determine whether a particular claim is religious in nature .


Here, the record fails to support the District Court's conclusion that appellees were each engaged in the exercise of a religion, or that the anti-camping regulation burdened their religious activities. Only William Thomas testified at the hearing, and his unsworn testimony consisted of a series of qualified "yeses" to leading and conclusory questions posed by the Court. Indeed, when Thomas attempted to explain his answers, the Court stopped him, demanding only a yes or no response. Even in the light most favorable to appellees, Thomas' testimony amounted only to a conclusory assertion that his activities in Lafayette Park -- "demonstrating and protesting with these signs and whatever else you do or are alleged to have done", as the Court put it -- were motivated by his sincere religious beliefs. 12/ Ellen Thomas, Stephen Semple and Phillip Joseph, said nothing at the hearing, other than to join in Thomas' motion, affirm that their beliefs were sincere, and adopt Thomas' answers as their own. Scott Galindez, who was not even present at the hearing, joined in Thomas' motion and answers and affirmed his sincerity through his attorney, who the Court presumably viewed as capable of representing what Galindez would have said had he been present, on an issue first raised on the day of the hearing and on which Galindez' counsel could not conceivably have

12/ Notably, as the government pointed out in its motion for rehearing and reconsideration, William Thomas has been convicted of camping in Lafayette Park on several prior occasions without interposing a free exercise defense. For Thomas now to assert that he violated the anti-camping regulation because of an "Act of God" that occurred in 1974, strains credulity.


consulted with her client. This does not constitute a sufficient showing of an exercise of a religion.

Certainly, a mere conclusory assertion as to the religious nature of one's beliefs is not sufficient to warrant the protection of the free exercise clause. See Welsh v. United States, 398 U.S. 333, 341 (1970) (court determines that conscientious objector applicant's beliefs were religious despite claimant's assertion that they were not); Africa v. Commonwealth of Pennsylvania, 662 F.2d at 1036-1037 (rejecting defendant's claim that the Philadelphia-based MOVE organization is a religion); United States v. Kuch, 288 F.Supp. 439 (D.D.C. 1968) (rejecting defendant's claim that the "Neo-American church" is a religion). Nor did the prosecutor "admit" at the hearing that appellees were engaged in a religious practice, as the Court stated in denying the government's motion to reconsider. True, the prosecutor declined an opportunity to question appellees concerning their beliefs, and argued that appellees' beliefs, "regardless" of their sincerity, were not a defense to the camping prohibition. However, that was obviously because the prosecutor was caught off-guard by the late filing of Thomas' motion and did not read it as asserting a free exercise claim. Notably, the government attempted to correct any error on its part by moving for rehearing and reconsideration. me Court denied the government such an opportunity, erroneously stating that the government had affirmatively indicated at that hearing that it was prepared to respond. Regardless of the government's failings, however, this Court's decision in Founding Church of


Scientology v. United States, makes clear that even when the government does not contest a party's assertion that its activities are religious, the claimant must still establish a prima facie case that it is engaged in the exercise of a religion in order to be accorded First Amendment protection. 409 F.2d at 1160.

In Founding Church of Scientology, this Court concluded that the Church of Scientology had made such a showing by introducing evidence concerning its writings, theology, organization and clergy. Id. Here, in contrast, appellees proffered nothing at the hearing concerning their "religion." Appellees did not explain what their religious beliefs were, or why their beliefs were religious -- rather than secular -- in nature. Nor did appellees present any evidence of their religion's belief-system, rituals, or structure. See Africa v. Commonwealth of Pennsylvania, 662 F.2d at 1031-1033 (discussing factors relevant in determining whether a set of beliefs are religious); Founding Church of Scientology v. United States, 409 F.2d at 1160 (religions are characterized by an adherence to and promotion of certain "underlying theories of man's nature or his place in the Universe"). Indeed, appellees' beliefs, as best they can be gleaned from an inadequate record, appear to be fundamentally political -- appellees are opposed to the use and proliferation of nuclear weapons.

Not only did appellees fail to prove that their beliefs were religious in nature, they failed to demonstrate any connection between those beliefs and their activities in


Lafayette Park. Notably, appellees have not claimed that camping in the park is part of their religion. Nor did the District Court find that camping is a religious belief or practice. This is scarcely surprising, since sleeping on the ground in sleeping bags has no obvious religious significance. Although the act of sleeping outdoors might, in conjunction with a religiously dictated vow of poverty, have some conceivable religious connotation, no such showing has been made here. Nor did appellees explain at the hearing how their anti-nuclear vigil amounted to a religious observance, or why their anti-nuclear views constituted a religion.

Moreover, even assuming that an anti-nuclear vigil, or sleeping on the ground, might be viewed as religious acts, it is inconceivable that Lafayette Park has a special religious significance to appellees, requiring them, as part of their religion, to camp or protest there. Obviously, the only significance of Lafayette Park to appellees is in terms of the communication of their anti-nuclear views. But that is not a religious significance, it is a freedom of speech significance, which the Supreme Court in Clark v. CCNV has already held is far outweighed by the substantial government interest in preserving and protecting Lafayette Park. See discussion infra, at 23-27.

Because no connection has been shown between appellees' beliefs, even if religious, and appellees' activities in Lafayette Park, there is no basis for the District Court's conclusion that appellees' religious practices have been burdened by the prohibition on camping. This Court's decision in Wilson


v. Block illustrates this point. In Wilson, Navajo and Hopi Indian tribes challenged, on free exercise grounds, the decision of the United States Forest Service to permit private interests to develop a ski area on a small portion of the San Francisco Peaks in the Coconino National Forest, near Flagstaff, Arizona. See 708 F.2d at 738. The Indian tribes presented evidence of their belief that the San Francisco Peaks are sacred mountains -the residence of their deities and spiritual emissaries, the site of their religious ceremonies and shrines, and the source of herbs, plants, and animals used in their religious observances. Id. This Court found that the Indians had established that their beliefs were religious in nature and that the Peaks had a special religious significance to them because their religion was "site specific." Id. at 742. However, the Court concluded that the Indians had failed to show that the ski development would burden the exercise of their religion because they had not established that the small portion of the Peaks scheduled to be developed was "indispensable" to the practice of their religious beliefs. Id. at 744.

In this case, it defies imagination to believe that appellees' religion is "site-specific", or that appellees cannot practice their "religion" some place other than Lafayette Park. Appellees have thus failed to show that either camping or their anti-nuclear vigil, and Lafayette Park itself, have any religious significance to them. Hence, they have not demonstrated any burden on their "religion" .

B. The District Court's Analysis is Fundamentally Flawed.


Despite this lack of evidence, the District Court concluded that appellees' camping deserved free exercise protection because their anti-nuclear vigil was "religiously motivated." This analysis, by its own terms, is fundamentally flawed. To begin with, even assuming that appellees' vigil was inspired by their religious beliefs, the Court was plainly wrong in equating religiously motivated speech with a religious practice or observance. Many of the major issues of the day can be viewed as having a religious base or motivation. For example, speakers praising or denouncing abortion, prayer in school, the death penalty, aid for the homeless, or the use of military force, might all justifiably point to an ultimately religious source for their viewpoints and conduct. 13/ Yet such a motivation, without more, does not transform such speech into a religious practice or observance. Indeed, to do so would be to trivialize the free exercise clause, which "gives special protection to the exercise of religion". Thomas v. Review Board, 450 U. S. at 713. Appellees' anti-nuclear vigil, while entitled to protection as an exercise of speech, is not entitled to protection as an exercise of religion.

13/ That much political speech is inspired by religious beliefs is obvious from the free speech cases that have confronted the courts . See, e g ., Concerned Jewish Youth v. McGuire, 621 F.2d 471 (2d Cir. 1980) (plight of Soviet Jewry), cert. denied, 450 U. S. 913 ( 1981 ); A Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975) (anti-war). Indeed, CCNV, as this Court recognized in CCNV v. Watt, is a "religious association. " See 703 F.2d 586, 608 (D.C. Cir. 1983) (Wilkey J., dissenting), rev'd, 468 U. S. 288 ( 1984) . Much of CCNV's speech, therefore, including that taking the form of camping in Lafayette Park, is religiously inspired. See p. 26 n. 16 infra.


Similarly, the District Court was wrong in concluding that enforcement of the anti-camping regulation impermissibly burdened appellees' religion, a conclusion it reached not because camping was a religious practice, but because sleeping in the park facilitated appellees' vigil. 14/ The First Amendment "protects facilitative activity only insofar as its restriction imposes burdens on expression itself. " White House Vigil for the ERA Committee v. Clark, 746 F. 2d 1518, 1540 (D. C. Cir. 1984) . Plainly, the anti-camping regulation does not burden the expression or exercise of appellees' religion. Sleeping in Lafayette Park has no religious significance per se. Indeed, appellees cannot communicate their religious views or practice their religion while asleep. Nor does requiring appellees to sleep some place other than Lafayette Park prohibit them from returning to the park and practicing their religion once awake.

Granted, sleeping in the park might be more convenient for appellees, but the First Amendment does not require the public to furnish demonstrators with facilities and support services designed to maximize the effectiveness of their protest. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. at 647 (government not required to furnish demonstrators with conveniences); Adderly v. Florida, 385 U.S. 39, 48 (1966).

14/ The Court found that the prohibition on camping in Lafayette
Park burdened appellees religion because it could

conceive of no way in which defendants could remain in Lafayette Park for long-term vigils without sleeping and thereby running afoul of the regulation.

(Mem. Op. of May 26, 1987, at 5).


Indeed, this Court, in Vietnam Veterans Against the War v. Morton, 506 F.2d 53 (D.C. Cir. 1974), expressly found that the First Amendment does not require that demonstrators be allowed to camp in Memorial-core area parks simply because camping might make the expression of their views easier or more effective. 506 F.2d at 58 n.14. Nor, of course, can the District Court's analysis be limited to camping. By the District Court's reasoning, other facilitative conduct that might assist appellees in conducting their vigil -- such as cooking meals, erecting shelters, or digging latrines -- would also be constitutionally protected as a free exercise of religion. The First Amendment does not require or countenance such an absurd result . The District Court's finding that appellees were engaged in the practice of a religion and that the anti-camping regulation burdened that religion, is wrong in every respect.

C. The Supreme Court's Decision in Clark v. CCNV Requires Reversal of the District Court's Order.

Finally, the District Court erred in inexplicably ignoring the Supreme Court's decision in Clark v. CCNV, which clearly recognizes the government's substantial and overriding interest in enforcing the prohibition on camping in Lafayette Park even in the face of an otherwise legitimate First Amendment claim. In Clark v. CCNV, demonstrators seeking to draw attention to the plight of the homeless sought to erect symbolic tent cities in Lafayette Park and the Mall, and to have demonstrators sleep in the tents. The National Park Service granted the demonstrators permission to erect the tent cities, but denied their request to


sleep in the tents, relying on the Park Service's anti-camping regulations. 468 U.S. at 291-292. The demonstrators challenged the sleeping ban, and the Supreme Court upheld the regulations as a valid time, place, and manner restriction, and as a lawful restriction on symbolic speech. Id. at 294-299. Assuming, without deciding, that sleeping was expressive conduct entitled to some first Amendment protection in the context of a demonstration designed to draw attention to the plight of the homeless, id. at 293, the Court found that the government had an overriding interest in "conserving park property, an interest that is plainly served by, and requires for its implementation, measures such as the proscription of sleeping that are designed to limit the wear and tear on park properties." Id. at 299. The Supreme Court expressly recognized the government's

substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence. To permit camping -- using these areas as living accommodations --would be totally inimical to these purposes....

Id. at 296.

To the extent that appellees have advanced a legitimate free exercise concern, it is that their anti-nuclear vigil is a form of religious expression. However, religious expression, like all expressive conduct, is subject to legitimate time, place, and manner restrictions. See, e.g., Heffron v. International Society for Krishna Consciousness, 452 U. S. at 648-655 ( "booth rule" prohibiting groups from selling or distributing merchandise at


state fair except from licensed locations upheld as a valid time, place, and manner restriction despite its burden on the Krishnas' practice of Sankirtan, a religious ritual that enjoins Krishnas to distribute and sell religious literature in public places); Cox v. New Hampshire, 312 U.S. 569, 573, 578 (1941) (ordinance forbidding street parades without a license upheld as a legitimate time, place, and manner restriction in the face of claim by Jehovah's Witnesses that such parades are "one of their ways of worship"); Cantwell v. Connecticut, 310 U.S. 296, 304 (1940) (state may regulate the time, place, and manner of the dissemination of religious views); Brandon v. Board of Education of the Guilderland Central School District, 635 F.2d 971, 980 (2d Cir. 1980)("the expression of religious points of view, and even the performance of religious rituals, is permissible in parks and streets when subject to reasonable time, place, and manner regulations"), cert. denied, 454 U.S. 1123 (1981). 15/ As the

15/ Of course, "religiously motivated" speech, as opposed to "politically motivated" speech, is not entitled to any extra First Amendment protection. As the Supreme Court noted in Heffron v. International Society for Krishna Consciousness, supra, "religious organizations do not

enjoy rights to communicate, distribute, and solicit on the fairgrounds superior to those of other organizations having social, political, or other ideological messages to proselytize."

452 U. S. at 652-653 . See also Prince v. Massachusetts, 321 U.S. 158, 164 (1944) ("it may be doubted that any of the great liberties insured by the First Article can be given a higher place than the others. All have a preferred position in our basic scheme.") Furthermore, because appellees were engaged, at most, in "religiously-motivated" speech, it is unnecessary to determine whether the anti-camping regulation serves the type of "compelling" interest required when government action has a coercive effect on the exercise of a religion, "putting pressure on an adherent to modify his behavior and violate his beliefs." Hobbie v. Unemployment Appeals Commission of Florida, 107 S. Ct. 1046, 1048 (1987). See, e.g., United States v. Lee, 455 U.S. 252 (1982); Thomas v. Review Board, supra. However, the government submits that the Supreme Court's decision in Clark v. CCNV, recognizing the substantial interests served by the anti-camping regulation, plainly indicates that the regulation satisfies even a higher, "compelling" interest standard of review.


Supreme Court found in Clark v. CCNV, the regulations prohibiting camping in Lafayette Park are an appropriate time, place, and manner restriction:

focus on the government's "substantial interest in maintaining the parks in the heart of our Capital in an attractive manner", they are "content-neutral", they "narrowly tailored," and they leave open ample alternative channels for communication. 468 U. S. at 295. 16/

The District Court's view that the government was required to show that it had a special interest in enforcing the regulations against these particular appellees in order to defeat their claim has been specifically rejected by the Supreme Court in Clark and other cases. See Clark v. CCNV, 468 U.S. at 296-297 ("the validity of this regulation need not be judged solely by reference to the demonstration at hand"). As the Court explained in Heffron v. International Society For Krishna Consciousness the justification for a regulation of general applicability

16/ The parallel between Clark v. CCNV and the instant case is especially striking since CCNV, as this Court has observed, is a "religious association", see CCNV v. Watt, 703 F. 2d at 608 (D. C. Cir.)(Wilkey J., dissenting), rev'd, 468 U.S. 288 (1984), which previously has sought access to memorial-core area parks to engage in expressive activity on free exercise grounds. See Community For Creative Non-Violence v. Hodel, 623 F. Supp. 528, 530 (D. D.C. 1985).


cannot be assessed by inquiring into the effect of granting an exemption from the regulatory prohibition to one group. 452 U.S. at 652-653. Any regulation can be made to seem unnecessary if the inquiry is focused only on the government's interest in not making an exception in the particular case at hand. See, e.g., United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 135 (1981) (Brennan, J. concurring). This principle holds true even when the government regulation directly burdens the free exercise of religion. See United States v. Lee, 455 U.S. at 259-260 (upholding refusal to grant Amish an exemption from social security taxes, even though their religion prohibits the payments of such taxes, because of difficulty in administering social security system if religious exemptions are allowed).

Thus, in what is at most a time, place, and manner case, the First Amendment does not require granting appellees a special exemption from the prohibition on camping in Lafayette Park, nor could any intelligent exception be carved out. Hence, even if appellees were engaged in the exercise of a religion, the government's substantial interest in maintaining Lafayette Park in "an attractive and intact condition," Clark v. CCNV, 468 U.S. at 296, overrides their free exercise claims and warrants enforcement of the anti-camping regulation.


WHEREFORE, appellant respectfully submits that the orders of the District Court should be reversed and the informations reinstated.

United States Attorney

Assistant United States Attorney

Assistant United States Attorney

Assistant United States Attorney

Assistant United States Attorney



I HEREBY CERTIFY that service of the foregoing Motion For Summary Reversal has been made by mailing a copy thereof, postage prepaid, this 21st day of July, 1987, to William Thomas, 1440 N. Street' N.W., #410, Washington, D.C.; Phillip Joseph' P.O. Box 27217, Washington, D.C.; Robert M. Hurley, Esquire, attorney for Ellen Thomas, 25 E Street, N.W., Washington, D.C. 20001; Mona Asiner, Esquire, attorney for Scott Galindez, 1717 K Street, N.W., #1200, Washington, D.C. 20036; and Stephen Semple, P.O. Box 2717, Washington, D.C.

(signed John D. Bates)
JOHN D. BATES, D.C. Bar #934927
Assistant United States Attorney
Judiciary Center Building
555 4th Street N.W. Room 4126
Washington, D.C. 20001
202 272-9195