United States District Court, District of Columbia
JOHN M. PAYDEN-TRAVERS,, Plaintiffs
PAMELA TALKIN, et al., Defendants
COLLEEN KOLLAR-KOTELLY United States District Judge.
Plaintiffs in this case contend that 40 U.S.C. § 6135
and a related regulation promulgated by the United States
Supreme Court unlawfully restrict their ability to exercise
their religion on the Supreme Court Plaza, in violation of
the Religious Freedom Restoration Act (“RFRA”).
Section 6135 provides that “[i]t is unlawful to parade,
stand, or move in processions or assemblages in the Supreme
Court Building or grounds, or to display in the Building and
grounds a flag, banner, or device designed or adapted to
bring into public notice a party, organization, or
movement.” Similarly, Supreme Court Regulation 7
prohibits “demonstrations” on Supreme Court
grounds, which Plaintiffs allege encompasses certain
religiously-motivated vigils and other activities they seek
to engage in.
the Court is Defendants'  Motion to Dismiss.
Defendants argue that the First Amended Complaint should be
dismissed because Plaintiffs fail to plead that section 6135
or Regulation 7 substantially burden the exercise of their
religion. In the alternative, Defendants contend that the
complaint should be dismissed because section 6135 and
Regulation 7 are the least restrictive means of furthering a
compelling government interest. Upon consideration of the
pleadings,  the relevant legal authorities, and the
record as a whole, the Court concludes that Plaintiffs'
RFRA claim fails at the threshold because section 6135 and
Regulation 7 do not substantially burden Plaintiffs'
exercise of religion. The Court will accordingly GRANT
Defendants'  Motion to Dismiss.
filed their original complaint in this case on November 4,
2013. See Compl. for Declaratory and Injunctive
Relief, ECF No. 1. In that complaint, Plaintiffs alleged that
Regulation 7 violated the First Amendment's freedom of
speech, freedom of assembly and freedom to petition
guarantees, was overbroad, unconstitutionally vague in
violation of the Fifth Amendment, and violated the RFRA.
Id. at ¶¶ 67-76.
same day, Plaintiffs filed a notice informing the Court that
this case was related to a separate matter, Hodge v.
Talkin, 12-cv-104 (BAH). See Notice of Related
Case, ECF No. 2. On January 27, 2014, Defendants filed an
unopposed motion to stay this case pending the final
resolution of the Hodge matter, which was at that
time before the Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”). See Defs.'
Unopposed Mot. for Stay, ECF No. 10. Defendants represented
that both cases presented First Amendment challenges to
restrictions on demonstrations on the Supreme Court Plaza
and, as such, that the D.C. Circuit's opinion in
Hodge would likely inform the Court's analysis
in this case. Id. The Court agreed and stayed this
case pending the resolution of Hodge. See
Order (January 28, 2014), ECF No. 11.
Court lifted the stay in this case after the D.C. Circuit
issued its decision in Hodge and the Supreme Court
denied a petition for writ of certiorari. See Min.
Order (May 18, 2016). As predicted, the D.C. Circuit's
opinion in Hodge had significant implications for
Plaintiffs' claims in this case. In Hodge, the
D.C. Circuit rejected the plaintiff's claim that section
6135 violated the First Amendment because it prevented him
from engaging in certain expressive political activity on the
Supreme Court Plaza. See Hodge v. Talkin, 799 F.3d
1145, 1150 (D.C. Cir. 2015), cert. denied, 136 S.Ct.
2009 (2016). First, the court found that the Supreme Court
Plaza was not a public forum, and that as such the government
was free to impose reasonable restrictions on speech on the
Plaza so long as it refrained from suppressing particular
viewpoints. Id. Second, the court held that section
6135 did not violate the First Amendment because it did not
target specific viewpoints, and its restrictions reasonably
served the government's “long-recognized interests
in preserving decorum in the area of a courthouse and in
assuring the appearance (and actuality) of a judiciary
uninfluenced by public opinion and pressure.”
Id. The court also rejected plaintiff's
overbreadth and vagueness challenges to the statute.
Id. at 1170-73.
24, 2016, Plaintiffs filed the now-operative First Amended
Complaint. See First Am. Compl. for Declaratory and
Injunctive Relief, ECF No. 13 (“Am. Compl.”).
Presumably in light of the D.C. Circuit's opinion in
Hodge, Plaintiffs have dropped their First and Fifth
Amendment claims, and now only assert a single count under
Factual Allegations in the First Amended Complaint
Supreme Court Plaza is a large, oval-shaped open space in
front of the United States Supreme Court. Am. Compl. at
¶ 12. It is separated from the sidewalk on First Street,
N.E. by a few small steps. Id. As outlined in
Plaintiffs' First Amended Complaint, numerous individuals
over the years have attempted to use the Supreme Court Plaza
as a place to pray or demonstrate, and these attempts have
often been frustrated. Id. ¶¶ 13-21.
13, 2013, the United States Supreme Court promulgated
Regulation 7, which reads:
This regulation is issued under the authority of 40 U.S.C.
§ 6102 to protect the Supreme Court building and
grounds, and persons and property thereon, and to maintain
suitable order and decorum within the Supreme Court building
and grounds. Any person who fails to comply with this
regulation may be subject to a fine and/or imprisonment
pursuant to 40 U.S.C. § 6137. This regulation does not
apply on the perimeter sidewalks on the Supreme Court
grounds. The Supreme Court may also make exceptions to this
regulation for activities related to its official functions.
No person shall engage in a demonstration within the Supreme
Court building and grounds. The term
“demonstration” includes demonstrations,
picketing, speechmaking, marching, holding vigils or
religious services and all other like forms of conduct that
involve the communication or expression of views or
grievances, engaged in by one or more persons, the conduct of
which is reasonably likely to draw a crowd or onlookers. The