A David and Goliath story of how a small yet faithful congregation was denied access to a public park because of its intent to play Christian music but stood firm until city policy was changed, protecting religious freedom.
In May, Shepherd’s Heart Anglican Church in Fairfax, Virginia will hold a concert at Old Town Square Park as an outreach to the community. What may sound like a typical event in any American town is instead a remarkable story of a small church’s perseverance through an unexpected struggle for religious liberty.
Two years ago, church member Pat Broderick first had the idea to hold a gathering at a city park but was subsequently denied access by the park manager because the church wanted to play contemporary Christian music.
“It was just our way of giving back to the community and letting them know we were down the street if anybody wanted any help or anything like that,” said Broderick.
Shepherd’s Heart is a small yet faithful congregation of about 40-50 members started by the late Fr. Harold Hammond in 1990, but currently without a full-time rector.
In 2016, Shepherd’s Heart leaders and members were challenged to brainstorm about ways to reach out to the community. After watching the city tear down an old gas station and replace it with a beautiful park, Broderick got the idea, especially given the park is “right around the corner from the church.”
Upon “following the prompting of the Holy Spirit,” as she described it, Broderick submitted a request to the city to use the park. At first, she says, there was no problem. But when she answered their follow-up questions and the city learned they would play Christian music, the city told her they could not partner with a religious organization and associate church and state.
“I just got so depressed and so down-hearted,” said Broderick, describing her reaction to the denial. “[That feeling] never went away and a voice in my head said ‘persevere, persevere.’”
A great woman of prayer, Pat returned to the training she had received from Fr. Harold: sit still, be quiet, and listen. “I just prayed. I didn’t know what else to do.” Pat had waited for two months before being given the opportunity and deciding to act. That’s when she reached out to a new member at the church she knew to be an attorney.
“Pat pulled me aside one Sunday morning after the service to talk about the issue. She knew I was an attorney and wanted to know my opinion. I told her that I wasn’t an expert, and I’m not Virginia barred, so I couldn’t give her legal advice. But, once upon a time, I did take first amendment in law school, and the whole situation smacked of content restriction,” described Charles Gorman, long-time Anglican, attorney, and member of Shepherd’s Heart.
The city’s policy did not expressly prohibit use of the park for religious activities or by religious groups. Instead, the city’s denial of the application was based on unchecked, arbitrary discretion – which is Constitutionally invalid.
Under the First Amendment to the United States Constitution, religious expression and speech are protected in traditional public forums such as public parks like that of Old Town Square in Fairfax. City restrictions on such freedoms are heavily scrutinized and must not discriminate against a particular viewpoint. Further, in traditional public forums, state actors cannot censor people or groups based on the content of their speech, except when there is a compelling state purpose and the restriction is both necessary and the wording narrowly tailored to achieve that purpose. Accordingly, the Supreme Court has ruled in other similar cases that in circumstances like these in which the forum is available to others and the event is open to the public, there is no Establishment Clause conflict.1 Additionally, in order for the state to require permits (i.e. approval) as a prerequisite for individuals or groups to engage in protected speech, it must follow very strict and objective criteria in decision making. To base such permits on vague discretion by officials making the individual decisions may be considered a prior restraint on protected speech and a violation of the First Amendment.
Fairfax City’s denial of Shepherd’s Heart’s application “was classic prior restraint, which is exactly what the Founders wanted to prevent when they drafted the First Amendment,” explained Gorman. “We used the Freedom of Information Act to get access to the city’s park policies. Even though they said it wasn’t allowed, there was nothing in writing to back it up. It was completely arbitrary.”
Gorman, feeling convinced of the Constitutional violation, contacted the Center for Religious Expression in Memphis, Tennessee who took on the case pro-bono.
“The city cannot treat a Christian group differently just because it’s Christian. All that Shepherd’s Heart wanted to do was just like what other groups had done but with contemporary Christian music,” explained attorney Nate Kellum of the Center for Religious Expression who handled the case.
“I can’t say it enough: I have tremendous respect for Shepherd’s Heart and how they handled themselves,” Kellum applauded. “They never wanted a lawsuit, they just wanted to be a part of the community.”
Fr. Jerry Brown, a bi-vocational Associate Rector at Shepherd’s Heart, was at first unsettled about whether to pursue the case. “[The City’s policy was] wrong, but at the same time, is this something worth fighting?”
His tiny parish had little resources, and the city had plenty. On top of that, he was greatly concerned to not take the church away from its calling to worship God and send out the Gospel. At the same time, the efforts of the church to do so were being strangled illegally by the city.
Shepherd’s Heart turned to the Lord, seeking Him in prayer throughout the process. They sought Him for wisdom whether to pursue the case. They sought Him for guidance in working with the attorneys. They sought Him for their freedom and the ability to use the park.
“We prayed about it. I,” Fr. Jerry said, “had a peace about going forward. And everybody together said, ‘let’s go for it.’”
On October 26, 2017, Shepherd’s Heart Church and the City of Fairfax, Virginia signed a settlement agreement leading to significant changes in city policy with respect to church access to city parks. It is now expressly written in city policy that religious activities are permissible uses of the city’s parks.
“Fr. Jerry sent me an email the morning he was going to go to Federal Court to settle the case. He outlined what they were agreeing to, and my jaw almost hit the floor. We got everything we wanted and then some,” Gorman exclaimed. Upon hearing of the settlement, Broderick shouted to the Lord. “Yes, Lord! …I was just so excited!” she recalls.
Attorney Nate Kellum admitted, “I am really, really pleased with the result.”
For those involved, this is an impactful result, but they also realize how impactful this case is beyond their city. Broderick, Gorman, and Brown all noted that Christians in our society tend to not know their rights and are confused by the language of the “separation of church and state” and the “establishment clause” so readily thrown at them by government entities. Broderick herself admits that she didn’t know her rights, but she knew the denial of her request to use the park because of the faith-based content of the music did not seem right.
Gorman said, “It was amazing to me the number of people I spoke with, when telling them about our case, who genuinely thought we were wrong. That we, as a church, shouldn’t be allowed in a public square. But that’s not the law.”
According to the First Liberty Institute, a leading religious liberties litigation group out of Plano, Texas, the United States has seen a 133% increase in attacks on religious liberty in just five years.2 As renowned religious liberties attorney and CEO of First Liberty Institute, Kelly Shackleford, puts it, “Americans have entered a tipping point.” 3
Gorman explains, “there is so much misinformation and confusion about the law that many people give up before they even get started. If we don’t fight for our rights, no one else will.” And the law is – in fact - on our side. “Our country needs us! It needs you!”
According to Kellum, “this is a very important result…[it’s time] for churches, for Christians, to really be bold enough to be able to stand up for our beliefs and the ability to share our beliefs.”
To do that, we must be confident in our faith and confident in our rights, just like Shepherd’s Heart Anglican Church in Fairfax, Virginia.
1 See Good News Club v. Milford Central School, 533 U.S. 98 (2001); Widmar v. Vincent, 454 U.S. 263 (1981); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993).
2 First Liberty Institute, Undeniable: The Survey of Hostility to Religion in America (2017), https://firstliberty.org/wp-content/uploads/2016/01/UNDENIABLE_ONLINE-1.pdf
3Shackleford, Kelly, A Time to Stand 2016, https://firstliberty.org/wp-content/uploads/2016/02/2016_ATTS_3.625x8.75_WEB.pdf
Rachel Thebeau is the Communications Associate for the Anglican Church in North America. She is a licensed attorney and a Blackstone Legal Fellow with Alliance Defending Freedom, one of the nation’s leading religious liberties organizations.