The lower set of steps leading to the eastern entrances of the U.S. Capitol building is a “traditional public forum” open for First Amendment expressions such as prayers, a federal judge ruled on May 17.
The legal crusade started in 2021, when the Rev. Mahoney said he felt called by God to hold a prayer vigil on the 20th anniversary of the Sept. 11 terrorist attacks on the Western Front Lawn, in the shadow of the Capitol building. He applied for a permit, which is required for groups of 20 or more unless sponsored by a member of Congress.
However, the U.S. Capitol Police refused to give him a permit for the vigil, citing heightened security concerns in the aftermath of the Jan. 6, 2021, breach of the building complex.
The rejection of his application prompted the clergyman to bring a series of challenges in the ensuing years. The Capitol Police, he argued in his complaints, engaged in viewpoint discrimination by turning down his request while allowing multiple other demonstrations to proceed.
For example, the Rev. Mahoney said, Capitol Police issued a permit for the nonprofit American Conservative Union to hold a 300-person rally on the West Front Lawn on July 21, 2021. That rally was organized to call on the Biden Administration to take action “against the oppressive communist dictatorship in Cuba.”
Moreover, Rep. Cori Bush (D-Mo.) was allowed to hold a large demonstration on the eastern steps in front of the House of Representatives in August 2021 to urge President Joe Biden to extend the residential eviction moratorium, which was first implemented in the wake of COVID-19 pandemic.
“The Eastern steps in front of the House of Representatives is closer to the Capitol Building than the Western Front Lawn, and the demonstration was attended by scores of people during both day and night,” the Rev. Mahoney’s initial complaint reads.
Chief Judge Boasberg, who ruled in 2021 that the Capitol Police acted reasonably by keeping the West Front Lawn closed to the Rev. Mahoney, now agreed that law enforcement has no authority to also stop the clergyman from praying on the eastern steps—at least the bottom portion of them.
“Like the sidewalks immediately next to them, the steps are continually open, often uncongested, and a place where people may enjoy the open air or the company of friends and neighbors,” the Obama-appointed judge’s ruling reads. “More importantly, these steps and others like them have historically been used for purposes of assembly and discussing public questions.”
“In light of all this, the Court ultimately agrees with Plaintiff that at least the lower portion of the Eastern Steps on which he wishes to demonstrate are the kind of public property that has been historically associated with the exercise of First Amendment rights.”
In effect, the ruling means that the Capitol Police will not be able to restrict the Rev. Mahoney or his followers from exercising their First Amendment rights, including praying, gathering, assembling, and protesting, on those steps and the adjoining sidewalks.
“As before, he wants to engage in these activities on specific days such as Good Friday, Thanksgiving, and Christmas and plans to do so not just this year but every subsequent year for the foreseeable future,” the judge wrote.
The Center of American Liberty, a nonprofit civil rights group advocating on the Rev. Mahoney’s behalf, celebrated the victory over the restrictions the Capitol Police had placed on the Capitol Grounds since the Jan. 6 breach.
“Today’s ruling from the court smashes that stranglehold, ensuring that every American—regardless of whether they have a member of Congress in their pocket—can exercise their right to free speech on the U.S. Capitol Grounds,” the organization said on its website.
“Today is a new day for demonstrations and free expression on the U.S. Capitol Grounds.”
