Occupy the Courts demonstration, on the second anniversary of the decision in Citizens United v. Federal Election Commission, outside the U.S. Supreme Court building. January 20, 2012. (Photo: Diego M. Radzinschi/ALM)


The latest effort to force the U.S. Supreme Court to allow demonstrations on the court’s marble plaza was dismissed by a Washington federal judge on Wednesday.

The challengers in the case, Payden-Travers v. Talkin, claimed the ban on demonstrations at the high court violated the Religious Freedom Restoration Act by burdening their religious rights to protest capital punishment with candlelight vigils. The plaintiffs, who have protested at the court in the past, claimed their beliefs dictate that they bear witness on court property, not on nearby public sidewalks.

U.S. District Judge Colleen Kollar-Kotelly of the District of Columbia said in her ruling that court regulations “do not ‘substantially burden’ plaintiffs’ religious exercise.” Instead, she said, the ban on protests on the plaza “restrict only one of a multitude of means by which plaintiffs could engage in their religiously motivated activity.”

Numerous other rulings have upheld bans on demonstrations at the Supreme Court on free speech grounds, based in part on the controversial premise that allowing protests on the court’s plaza would give the public the impression that justices could be swayed by public opinion. A federal appeals court in March upheld restrictions on speech inside the justices’ courtroom.

“That rationale has no logic to it,” said John Whitehead of the Rutherford Institute, which backed the lawsuit and other challenges to the protest ban. “As long as they are not blocking ingress or egress, why can’t they make a statement before the Supreme Court? What is the compelling state interest in restricting freedom of religious speech?”

Though some rulings have favored protesters, the most definitive decision on the issue came in the 2015 Hodge v. Talkin ruling by the U.S. Court of Appeals for the D.C. Circuit. The panel asserted the court plaza was a nonpublic forum and the restrictions “reasonably relate to 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.”

The Payden-Travers suit was brought in 2013 while the Hodge case was pending. After the appeals court ruled in Hodge, the plaintiffs in Payden-Travers dropped their First and Fifth amendment claims and focused instead on the alleged Religious Freedom Restoration Act violation.

Washington lawyer Jeffrey Light, who assisted Rutherford in the lawsuit, hoped he could convince the judge that to act on their religious beliefs, his clients needed to protest as close to the high court as possible.

But Kollar-Kotelly was not convinced. “Plaintiffs have not alleged that this is the only way or only place plaintiffs could pursue these religious convictions, and it is clearly not,” she wrote. “Plaintiffs could speak out against and distance themselves from torture, war or the death penalty in countless ways.”

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro