Minister arrested on steps of Supreme Court for praying

Monday, May 11, 1998

At a previous n...
At a previous news conference before last week's prayer incident, Rev. Patrick Mahoney, director of the Christian Defense Coalition, stands on the steps of the Supreme Court in Washington on April 22.

Although many U.S. lawmakers, lobbyists, staffers and tourists had no difficulty celebrating Capitol Hill's observance of the National Day of Prayer, one activist minister was arrested for praying on the steps of the U.S. Supreme Court.

The Rev. Patrick Mahoney, director of the Christian Defense Coalition, a D.C.-based social and political advocacy group, was arrested Thursday by federal police officers after he refused to cease kneeling and praying on the steps of the court.

Mahoney was charged with violating a federal law that states: “It shall be unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.”

The law, Title 40 U.S.C. sec. 13k, was enacted in 1949 and authorized a court-appointed marshal to police the Supreme Court Building, its grounds, and the adjacent streets.

Mahoney and about 20 members of his group started kneeling and praying on the steps at noon. Soon court officers wearing riot gear approached the group and ordered them to cease kneeling, Mahoney said. The group was told they would not be arrested if they stood and prayed.

The members left the steps, leaving Mahoney the only person praying. Another officer approached Mahoney and told him he was drawing attention to himself and was in violation of the federal law. Mahoney was then handcuffed and hauled off to a D.C. Metro Police station, where he was detained for more than three hours before being released on bond.

Jim Henderson, who is Mahoney's lawyer and an attorney with the American Center for Law and Justice, a D.C.-based religious-rights group, said that the arrest was “shocking to anyone who values religious liberty.”

Henderson sent a letter to Dale Bosley, the Supreme Court marshal, in late March informing him that Mahoney and his group planned to pray on the steps during the National Day of Prayer.

The National Day of Prayer, created by Congress in 1952, required the president to proclaim a day of his choosing each year. Congress amended the law in 1988, designating the day for the first Thursday of May.

Upon signing the law, President Reagan proclaimed, “On our National Day of Prayer, then, we join together as people of many faiths to petition God to show us His mercy and His love, to hear our weariness and uphold our hope, that we might live ever mindful of His justice and thankful for his blessing.”

In a reply to Henderson, Bosley wrote: “Processions and assemblages are prohibited on the grounds of the Supreme Court,” and that therefore, Mahoney and his group would not be permitted to pray on the court's steps.

Bosley cited U.S. v. Grace, a 1983 Supreme Court decision regarding the federal law [Title 40 U.S.C. sec. 13k] as support for his conclusion. The court in Grace dealt with two people who had been informed by Supreme Court police that they could not pass out leaflets or hold signs on the sidewalks surrounding the court. The police cited the section of the law that says it is unlawful “to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement,” as justification. Thaddeus Zywicki and Mary Grace brought a federal lawsuit seeking an injunction against the enforcement of that part of the statute and a judgment that the law was unconstitutional.

The court, in Grace, dealt only with Title 40's ban on flags, banners and other objects designed to draw attention to individuals or groups. Moreover, the court noted that its decision answered only whether Title 40 was constitutional as applied to the court's surrounding sidewalks. The court ruled that the section applying to the sidewalks was unconstitutional. In passing, the court noted that although “the property is publicly owned, it has not been traditionally held open for the use of the public for expressive activities.”

Mahoney said his group felt compelled to go to the Supreme Court even after receiving the marshal's letter.

“Because our group is an activist organization, we decided to go despite Bosely's letter,” Mahoney said. “I believe this was an outrageous violation of free speech and religious liberty. Groups were praying all over the Capitol grounds and in buildings—why was prayer exempt at the Supreme Court?”

According to The Washington Times, the government-designated prayer day was observed all over Capitol Hill. The caucus room in the Russell Senate Office Building, the Times reported, became a “sanctuary” as politicians, military staff and pastors gathered to pray for the nation.

Toni House, public information officer of the Supreme Court, said that Mahoney had been arrested, but refused to comment further.

Mahoney said his group plans to attempt to pray again on the steps of the court.

“I think we are going to go back to the court and pray and will probably seek injunctive relief barring the court from arresting us or barricading the court,” Mahoney said. “If the Supreme Court can tell American citizens that they cannot peacefully pray on the steps of the court, then religious freedom is not safe anywhere. It is not the right of the court to tell citizens where they can worship God and where to pray.”

Douglas Laycock, a constitutional law scholar and professor at the University of Texas, said that he does not believe Mahoney violated Title 40.

“He was not assembling—that requires multiple people—he was not processing or displaying anything,” Laycock said. “I think what he did may well have fallen within the purpose of the law, but this is criminal statute and it must be confined to what it says.”

Laycock also criticized the law. “I don't much like the rule,” he said. “I think that the Supreme Court is a natural place for protest. As long as people are not blocking or interfering with the court's business, it seems an entirely appropriate place for protest.”