The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment, and plaintiff's motion for summary judgment. Plaintiff, Reverend Pierre Bynum, alleges that the United States Capitol Police prohibited him from praying in the United States Capitol in violation of the Free Speech and Free Exercise Clauses of the First Amendment, the Due Process Clause of the Fifth Amendment, and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb. Reverend Bynum seeks an injunction against further enforcement of the policy and practice of treating prayer as a form of prohibited demonstration in the Capitol. Upon consideration of the parties' cross motions for summary judgment, their supplemental memoranda, and the oral argument presented by counsel, the Court concludes that plaintiff's motion for summary judgment should be granted and defendants' motion to dismiss or for summary judgment should be denied.
Each week, an estimated 500 private and guided group tours traverse the United States Capitol, reflecting on the historic significance of such areas as the Rotunda, the Washington cornerstone, Statuary Hall and the old Supreme Court chambers. Defendants' Statement of Material Facts About Which There is No Genuine Issue ("Defs.' Statement of Undisputed Facts") ¶ 2. In any given year, the United States Capitol welcomes over 1.5 million visitors.
Unlike the grounds surrounding the Capitol, which historically have been the site of numerous demonstrations, there has been a ban on demonstrations inside the Capitol since 1946 when Congress decreed: "It shall be unlawful for any person or group of persons willfully and knowingly -- . . . to parade, demonstrate, or picket within any of the Capitol Buildings." 40 U.S.C. § 193f(b)(7). The United States Capitol Police are responsible for enforcing this ban. 40 U.S.C. § 212a. Believing that the Capitol Police needed guidance in determining what behavior constitutes a "demonstration," the United States Capitol Police Board issued a regulation that interprets "demonstration activity" to include:
parading, picketing, speechmaking, holding vigils, sit-ins, or other expressive conduct that convey[s] a message supporting or opposing a point of view or has the intent, effect or propensity to attract a crowd of onlookers, but does not include merely wearing Tee shirts, buttons or other similar articles of apparel that convey a message. Traffic Regulations for the Capitol Grounds § 158; see Declaration of Inspector Christopher M. McGaffin ("McGaffin Decl.") ¶ 3. *fn1 According to the government, the ban on demonstration activities includes prayer "unless it is conducted in the authorized use of the Chapel, or in a designated room upon invitation of a Member." Defs.' Statement of Undisputed Facts ¶ 8. *fn2
On Sunday, November 3, 1996, plaintiff Reverend Pierre Bynum, the Associate Pastor of Waldorf Christian Assembly in Waldorf, Maryland, led a "prayer tour" of the United States Capitol for the group Capitol Hill Prayer Alert. *fn3 During the prayer tour, Reverend Bynum led a small group of people to various historic sites in the Capitol. Plaintiff's Statement of Material Facts Not In Dispute ("Pl.'s Statement of Undisputed Facts") ¶¶ 1, 27, 29. While viewing the Washington cornerstone for two to three minutes, Reverend Bynum and his tour group "consider[ed] the historic interpretive aspects of the site . . . [and] praye[d] and meditat[ed] on topics related to the historic interpretation offered by Reverend Bynum." Pl.'s Statement of Undisputed Facts ¶ 33. The few moments of prayers were in a quiet, conversational tone, during which the members of the group bowed their heads and folded their hands. Pl.'s Statement of Undisputed Facts ¶ 26; Transcript of September 16, 1997 Motions Hearing at 4. The tour group caught the attention of one Capitol Police officer who commented: "[N]ow that is a demonstration," or words to that effect. Pl.'s Statement of Undisputed Facts ¶ 34.
As the tour group arrived at Statuary Hall, another Capitol Police officer approached Reverend Bynum and, after determining that his group had been seen praying elsewhere in the building, told him that praying in the Capitol was illegal because the Capitol Police consider praying to be a form of prohibited demonstration. Pl.'s Statement of Undisputed Facts ¶¶ 38-42. After the officer told Reverend Bynum he would be arrested if the praying continued, Reverend Bynum and the tour group continued their prayer tour of the Capitol, but omitted the outward appearance of praying: they no longer folded their hands, closed their eyes or bowed their heads. Id. ¶¶ 43-46. While Reverend Bynum and his group were able to finish their tour, their perception was that they did so "under surveillance by United States Capitol Police officers." Id. ¶ 47.
After the November 3, 1996 incident, Reverend Bynum's legal counsel wrote to John T. Caulfield, General Counsel of the United States Capitol Police Board, regarding Reverend Bynum's experience. Plaintiff's Motion for Preliminary Injunction ("Pl.'s Mot. for Prelim. Injunction"), Exh. 1 (Declaration of Reverend Pierre Bynum) ¶¶ 47-48. In response, Mr. Caulfield informed Reverend Bynum's counsel that certain changes regarding tours in the Capitol had been instituted in order to accommodate the significant crowds that visit the Capitol during peak season. Mr. Caulfield's letter also spoke to the regulation that led to the November 3 incident, suggesting that the Capitol Police believe that prayer is prohibited in the Capitol:
As you may be aware, demonstrations are prohibited in the U.S. Capitol and the Capitol buildings. Therefore, tours would be a permissible activity provided that they are not a demonstration that is conducted in such a manner as to have the purpose, propensity or effect of drawing a crowd of onlookers or involves expressive conduct that conveys a message supporting or opposing a point of view. Pl.'s Mot. for Prelim. Injunction, Exh. 2 (May 2, 1997 letter from John T. Caulfied, United States Capitol Police, to James Matthew Henderson, Sr., American Center for Law and Justice). After receiving the letter from Mr. Caulfield, plaintiff filed this lawsuit.
A. First Amendment Forum Analysis
Plaintiff contends that the Capitol Police Board's regulation is an impermissible restriction on speech in a public place. Under Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 797 (1985), there is a three-step analysis required for resolving free speech claims on public property. First, the activity threatened or affected by governmental action must be identified, and it must be determined whether it is speech protected under the First Amendment. The parties agree that plaintiff's activity was protected speech under the First Amendment. Second, the court must "identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic." Id. The Supreme Court has recognized three different types of public property for free speech purposes: (1) the traditional public forum, (2) the designated public forum, and (3) the nonpublic forum. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983). Third, the court "must assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard." Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. at 797.
The first type of forum, the traditional public forum, includes places such as public streets and parks, which "by long tradition or by government fiat have been devoted to assembly and debate." Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. at 45. It includes those kinds of places which have historically "been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Id. Government regulation of speech in a traditional public forum is subject to the strictest scrutiny. "For the state to enforce a content-based ...