Court Dismisses Constitutional Claims of Protestors at Gay Games

Oct 9, 2009

A federal judge from the Northern District of Illinois has granted summary judgment to the City of Chicago and other defendants, who were sued by protestors of the Gay Games, who claimed their Constitutional rights were violated when they were forced away from the flow of the traffic to make their protests.
Among the key findings by the court was the organizer’s equal treatment of other protestors in terms of where they were forced to stand.
The suit was brought by Michael Marcavage, James Deferio and Faith Deferio. The plaintiffs claimed that the City, The Metropolitan Pier and Exposition Authority and a number of City’s police personnel violated their constitutional civil rights in connection with their protest activities during Chicago’s Gay Games.
Marcavage and the Deferios were volunteers with Repent America, an evangelistic organization based in Philadelphia, Pennsylvania. Repent America’s goal is to proclaim the Gospel of Jesus Christ publicly through prayer, the display of signs, the distribution of religious literature and public.
From July 15 to July 22, 2006, Chicago was the host city for the Gay Games, an athletic and cultural event held once every four years. Marcavage and the Deferios traveled to Chicago during the Games to evangelize and preach and specifically sought to communicate to homosexuals in attendance that homosexuality is a sin. The events were held at Soldier Field, Navy Pier, and Wrigley Field.
At Soldier Field, the plaintiffs argued that the organizers forced them to move to the gravel portion of the sidewalk, rather than permitting them to occupy the paved sidewalk closer to the entrance to the Field.
The court noted that the organizer’s enforcement was “content-neutral.” Such enforcement “passes constitutional muster so long as it was narrowly tailored to serve a significant government interest and it left open ample alternative channels of communication “
The court summarized that the officers’ “directive to plaintiffs at Soldier Field was a valid time, place and manner restriction that did not run afoul of plaintiffs’ First Amendment rights.”
The plaintiffs also claimed their First Amendment rights in the case of the Navy Pier and Wrigley Field.
“But analysis defeats that contention,” wrote the court. It found again “that the policy was not a content-neutral time, manner and place regulation.”
In citing the Wrigley Field example, the court noted that the officer “directed the man protesting President Bush to leave the same corner when he stood (where the plaintiff stood). Given those facts, it can only be concluded that (the officer’s) restriction of the sidewalk was a content-neutral regulation that applied to anyone standing in that specific area, regardless of his views on homosexuality or politics.
“As such, the First Amendment analysis of the officer’s order to remain moving on the busy sidewalk follows the same path as the officer’s order at Soldier Field. For the same reasons explained there, (the officer’s) order was narrowly tailored to serve a significant government interest: the safe and orderly flow of pedestrian traffic. There can be no doubt that it left open ample alternative channels of communication, as the Deferios and other members of Repent America freely demonstrated in other areas around Wrigley Field.”
Turning to the plaintiff’s equal protection claims, associated with their activity at Soldier Field and Wrigley Field. “Under the Fourteenth Amendment’s Equal Protection Clause, no State may ‘deny to any person within its jurisdiction the equal protection of the laws.’ That of course ‘is essentially a directive that all persons similarly situated should be treated alike” (City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).
“An equal protection violation occurs only when different legal standards are arbitrarily applied to similarly situated individuals.”
“That scotches plaintiffs’ claim. No one situated similarly to Marcavage at either Soldier Field or Wrigley Field was treated differently or more favorably than he was. It has already been shown that none of the other protesters at the Games’ opening and closing ceremonies was allowed to stand at the same place where Marcavage wanted to be. To the contrary, the only protester who did attempt to stand still at the same spot as Marcavage–the political protester at Wrigley Field–was directed to move, just as Marcavage was.
“Without the identification of any similarly situated person for comparison purposes, it cannot be said that a different legal standard was arbitrarily applied to Marcavage in violation of the Fourteenth Amendment. Plaintiffs’ equal protection claims therefore fail without any need for further analysis.”
Michael Marcavage, et al. v. City Of Chicago, et al.; N.D.Ill.; No. 06 C 3858, 2009 U.S. Dist. LEXIS 61438; 7/20/09
Attorneys of Record: (for plaintiffs) Andy Robert Norman, LEAD ATTORNEY, Mauck & Baker, Chicago, IL; Jeffrey M. Schwab, Mauck & Baker, LLC, Chicago, IL. (for defendant) Bettina Getz, Daniel G. Hildebrand, Justin Bishop Grewell, Mayer Brown LLP, Chicago, IL.


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