Inside the First Amendment
By Charles C. Haynes
First Amendment Center
Church ministries have been feeding homeless people in Philadelphia’s public parks for decades — not as a charitable gesture, but as an act of faith.
But earlier this year, city officials passed an ordinance banning public feeding of groups of more than three people in any city park — taking care, of course, to exempt city-sanctioned special events, family picnics and other gatherings the city finds more palatable.
The law targets church groups and charities that give meals to the homeless on land along the Benjamin Franklin Parkway, home to major museums such as the Philadelphia Museum of Art and the newly opened Barnes Foundation art collection.
Why make it so hard to feed the homeless in the City of Brotherly Love?
Philadelphia Mayor Michael Nutter’s official explanation for the ban is that he wants to move feeding the homeless inside (though the city is vague about how or when this will happen). Moreover, the city argues, church feeding programs are health hazards that create a mess in the park. The mayor offered part of the plaza surrounding City Hall as a temporary alternative location.
Religious leaders dismiss the city’s objections to meal distribution in public parks as bogus, pointing out that no one has gotten sick from the food and volunteers clean up the space used. Moreover, many of the homeless who live in the park are reluctant to travel elsewhere (leaving their few possessions) — and some are too disabled to do so.
Critics say the real reason for the ban is the proximity of the feeding programs to tourist attractions, especially the new $150 million building housing the Barnes Foundation collection that opened in May.
To stop the law from taking effect, religious groups (with support from the American Civil Liberties Union) filed suit in federal court charging that prohibiting churches from feeding the homeless in city parks violates religious freedom (Chosen 300 Ministries, Inc. v. City of Philadelphia).
The city responded by claiming that because the law “imposes no restrictions upon praying or preaching or reading the Gospel or engaging with the homeless,” the ban on feeding doesn’t interfere with the churches’ right to practice their faith.
Last month, Judge William H. Yohn Jr. rejected the city’s argument and granted a temporary injunction barring implementation of the law. In a written opinion issued two weeks ago explaining his order, the judge wrote that government had no business ascribing to some of the churches’ religious activities more religious significance than others.
To support his conclusion that the park feeding ban violated the religious freedom of the ministries, Yohn relied not on the First Amendment, as might be expected, but on the Pennsylvania Religious Freedom Protection Act.
That’s because the U.S. Supreme Court weakened the protections of the First Amendment’s free-exercise clause in 1990, declaring that government no longer had to show a compelling state interest before denying religious exemptions to generally applicable laws that substantially burden the free exercise of religion (Employment Division v. Smith).
In response to that high court ruling, some states — including Pennsylvania — have passed legislation restoring the “compelling interest” test.
According to Judge Yohn, Philadelphia’s public feeding ban would likely fail that test because the city has not shown that government interests are strong enough to override religious freedom in this case. Moreover, the city has not provided a solid alternative for relocating the feeding programs.
Philadelphia is not the only city trying to move homeless people and those who serve them out of public parks. According the National Law Center on Homelessness & Poverty, more than 50 other cities have passed anti-camping and anti-feeding ordinances.
Mayor Nutter is appealing the court injunction. But whatever happens in the courts, church leaders in Philadelphia promise to keep the meals coming — even if it means defying the law.
After all, when it comes to helping “the least of these,” they believe in obeying a higher law.