MISKA et al v. TALKIN et al

Filing 20

MEMORANDUM OPINION Regarding 19 Order Granting Defendants' 15 Motion to Dismiss. Signed by Judge Colleen Kollar-Kotelly on 5/31/2017. (lcckk3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN M. PAYDEN-TRAVERS, et al.,
Plaintiffs
v.

Civil Action No. 13-1735 (CKK)

PAMELA TALKIN, et al.,
Defendants
MEMORANDUM OPINION
(May 31, 2017)
The 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.
Before the Court is Defendants’ [15] 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

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the pleadings, 1 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’ [15] Motion to Dismiss.
I. BACKGROUND
A. Procedural History
Plaintiffs 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.
On the 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

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The Court’s consideration has focused on the following documents:
• Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 15;
• Pls.’ Mem. in Opp’n to Mot. to Dismiss (“Pls.’ Opp’n”), ECF No. 17; and
• Defs.’ Reply in Support of Mot. to Dismiss (“Defs.’ Reply”), ECF No. 18.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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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.
The 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 “longrecognized 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 117073.
On June 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 the RFRA.

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B. Factual Allegations in the First Amended Complaint
The 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.
On June 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 term does not include casual use by
visitors or tourists that is not reasonably likely to attract a crowd or onlookers.
Id. ¶ 4.
Plaintiffs allege that Regulation 7, together with 40 U.S.C. § 6135, substantially burdens
the exercise of their religions. Plaintiff John M. Payden-Travers alleges that he is a “postdenominational Christian.” Id. ¶ 22. He alleges that he is the former Executive Director of an
organization that lobbies for the passage of legislation that would allow the tax payments of
individuals who are opposed to war based on their religious or ethical beliefs to be directed for
non-military purposes. Id. ¶¶ 22-24. Mr. Payden-Travers is himself opposed to the use of tax
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dollars for war or executions, and alleges that these positions are religiously motivated. Id. ¶¶
26-28. Mr. Payden-Travers alleges that his “faith compels him to speak out against war and the
death penalty in order to publicly distance himself from the commission of these acts by the
government in the name of the American public.” Id. ¶ 34. As such, Mr. Payden-Travers has on
two past occasions gone to the Supreme Court Plaza and stood with a banner that reads “STOP
EXECUTIONS,” and has also chanted outside the Supreme Court in support of abolishing the
death penalty. Id. ¶¶ 29-33. Mr. Payden-Travers alleges that his “deeply held beliefs led him to
demonstrate.” Id. ¶ 29. In the future, Mr. Payden-Travers desires to hold peaceful candlelight
vigils on the Supreme Court Plaza on nights when executions are taking place, and verbally
express his view that capital punishment should be abolished. Id. ¶ 35. He contends that a vigil
on the sidewalk adjacent to the Supreme Court “would not be sufficient to demonstrate to
passersby that Mr. Payden-Travers is acting [as] a conscientious objector to the Supreme Court’s
allowance of the immoral death penalty to continue.” Id. ¶ 36.
Plaintiff Midgelle Potts alleges that she is a “Unity Christian.” Id. ¶ 37. One of the basic
tenets of Ms. Potts’ religion is that “knowledge of . . . spiritual principles is not enough;
spirituality must be lived.” Id. ¶ 38. Ms. Potts alleges that her faith compels her to both pray
and speak out against torture, war and the death penalty. Id. ¶ 39. To make clear that she does
not endorse the use of her tax dollars to fund torture, war or executions, Ms. Potts engages in the
religious practice of “bearing public witness,” which she defines as the “intentional act of
offering one’s perspective to the wider community.” Id. ¶¶ 40-42. She provides “participating in
a public prayer vigil or peace walk” as “[a]n example” of the practice. Id. ¶ 41. In accordance
with these religious beliefs, Ms. Potts previously protested the mistreatment of prisoners at the
Abu Ghraib and Guantanamo Bay prisons, and the appointment of Alberto Gonzales as Attorney

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General, while wearing a black hood at the Supreme Court Plaza. Id. ¶¶ 43-44. In the future,
Ms. Potts desires to hold prayer vigils on the Supreme Court Plaza, “as an exercise of her
religion.” Id. ¶ 46. She contends that a vigil on the sidewalk adjacent to the Supreme Court
“would not be a sufficient exercise of Ms. Potts’ religious teachings because the Supreme Court
Plaza is a distinct enclave, and the public would not sufficiently identify her actions with the
Court if the prayer vigil were conducted on the sidewalk.” Id. ¶ 47.
II. LEGAL STANDARD
Pursuant to Federal Rule 12(b)(6), a party may move to dismiss a complaint on the
grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
III. DISCUSSION
The RFRA prohibits the government from “substantially burden[ing] a person’s exercise
of religion” unless the government “demonstrates that application of the burden to the person (1)
is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)-(b). Defendants
argue that Plaintiffs’ RFRA claim must be dismissed because Plaintiffs cannot make the

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threshold showing that the statute and regulation at issue “substantially burden” Plaintiffs’
exercise of religion. The Court agrees.
“[T]he first inquiry under RFRA is whether a government act has substantially burdened
the plaintiff’s religious exercise.” Wilson v. James, 139 F. Supp. 3d 410, 424 (D.D.C. 2015),
aff’d, No. 15-5338, 2016 WL 3043746 (D.C. Cir. May 17, 2016), cert. denied, 137 S. Ct. 695,
196 L. Ed. 2d 529 (2017). “A substantial burden exists when government action puts
‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’”
Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (quoting Thomas v. Review Bd., 450
U.S. 707, 718 (1981)). An inconsequential or de minimis burden on religious practice, such as
when the government merely restricts “‘one of a multitude of means’ by which the [plaintiffs]
could engage in their” religious exercise, does not suffice. Mahoney v. Doe, 642 F.3d 1112,
1121 (D.C. Cir. 2011) (quoting Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001)). 2
Accordingly, “[t]he Court of Appeals has found that a neutral regulation that places a limit on
where someone may engage in religiously motivated expression does not violate RFRA.”
Wilson, 139 F. Supp. 3d at 425.
The Court’s conclusion that section 6135 and Regulation 7 do not “substantially burden”
Plaintiffs’ exercise of religion is informed by a number of opinions from this Circuit that have
addressed RFRA claims very similar to those presented here. First, in Henderson v. Kennedy,
evangelical Christian plaintiffs claimed that a National Park Service regulation that would forbid

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The Court notes that determining whether section 6135 and Regulation 7 substantially burden
Plaintiffs’ religious exercise at the pleading stage is appropriate despite Plaintiffs’ allegation that
these restrictions “place a substantial burden on the exercise of their religion,” Am. Compl. ¶ 49,
because although the Court accepts “as true the factual allegations that [Plaintiffs’] beliefs are
sincere and of a religious nature,” it need not accept “the legal conclusion, cast as a factual
allegation, that [their] religious exercise is substantially burdened.” Kaemmerling, 553 F.3d at
679.
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them from selling religious t-shirts on the National Mall violated the RFRA. Henderson, 253
F.3d at 13. The plaintiffs in Henderson alleged that they held “the sincere religious belief that
[they were] obliged by the Great Commission to preach the good news, the gospel, of salvation
through Jesus Christ to the whole world.” Id. at 15. They argued that the Park Service
regulation substantially burdened the exercise of their religion because they had “a religious
vocation to communicate by all available means the message of the Gospel,” and selling t-shirts
was part of their religious “outreaches.” Id.
The D.C. Circuit held that the t-shirt ban did not “substantially burden” plaintiffs’
exercise of religion for the purposes of the RFRA. Id. at 16. The court explained that plaintiffs
could not “claim that the regulation force[d] them to engage in conduct that their religion forbid[
] or that it prevent[ed] them from engaging in conduct their religion require[d].” Id. The court
acknowledged that the plaintiffs’ desire to sell t-shirts might have been religiously motivated, but
expressly rejected an interpretation of the RFRA that would make forcing “adherents of a
religion to refrain from religiously motivated conduct” a sufficient basis for demonstrating a
“substantial burden” on the exercise of religion. Id. at 17. Most importantly for the purposes of
this case, the Henderson court reasoned that the ban was not a substantial burden on the
plaintiffs’ exercise of religion because it was “at most a restriction on one of a multitude of
means” by which the plaintiffs could engage in their religious activity. Id.
The D.C. Circuit subsequently revisited this issue in Mahoney v. Doe, wherein plaintiffs
challenged a “Defacement Statute” that prevented them from “chalking” the street in front of the
White House to protest President Barack H. Obama’s position on abortion. 642 F.3d 1112, 1114
(D.C. Cir. 2011). The district court had dismissed plaintiffs’ First Amendment and RFRA
claims. Id. With respect to the RFRA, the district court accepted plaintiffs’ position that the

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“proposed chalking was motivated by a sincere religious belief,” but nonetheless rejected their
claim because the plaintiffs “did not establish chalk was the exclusive medium through which
Mahoney could express his religious views.” Id. at 1120-21.
The Court of Appeals agreed. Citing Henderson, that court held that there was no
substantial burden on the exercise of religion because “the District’s threatened use of the
Defacement Statute prohibits only ‘one of a multitude of means’ of conveying Mahoney’s
religious message.” Id. at 1121. It explained that “Mahoney may still spread his message
through picketing, a public prayer vigil, or other similar activities in which he has previously
engaged” and that “[t]he Defacement Statute does not realistically prevent Mahoney from
chalking elsewhere. . .” Id.
Finally, in Mahoney v. U.S. Marshals Serv., plaintiffs alleged that security measures
implemented by the United States Marshals Service at the annual Red Mass in Washington, D.C.
violated the RFRA because they restricted plaintiffs’ ability to demonstrate at the event. 454 F.
Supp. 2d 21, 27-30 (D.D.C. 2006). The plaintiffs alleged that their religion “‘demand[ed] of
[them] that [they] pursue obedience to the biblical command not to remove the ancient
landmarks, including the Ten Commandments,’ from public places.” Id. at 27. In accordance
with that demand, plaintiffs sought to demonstrate outside of the Red Mass in order to “convey
their message to the many jurists in attendance, by, among other means, carrying signs and
praying as a group.” Id. at 28.
Plaintiffs brought suit against the United States Marshals Service under the First and
Fifth Amendments and the RFRA and the district court granted summary judgment for
defendants. Id. at 38. The reasoning underlying the court’s rejection of plaintiffs’ RFRA claim
in particular is instructive in this case:

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Plaintiffs have alleged that they wish to engage in speech about religion and that
this desire is motivated by their religious beliefs, but they have not alleged that this
is part of the exercise of their religion. Most importantly, they do not allege that
their religion compels them to engage in this speech at the time and place and in
the manner at issue here. They certainly do not allege that their religion compels
them to demonstrate in favor of the public display of the Ten Commandments at all
times and in all places, and they offer no evidence that their religion requires them
to demonstrate at this particular time and place as compared to all others.
Instead, their evidence confirms the notion that plaintiffs wish to demonstrate at the
Red Mass because it provides a target-rich audience of prominent government
officials, at whom plaintiffs wish to direct their political message. This is a classic
case of speech on an issue of public interest, not a case of religious exercise.
Id. Accordingly, the Court concluded that “[p]laintiffs ha[d] not properly alleged that their
religious exercise ha[d] been substantially burdened.” Id.; see also Wilson, 139 F. Supp. 3d at
425 (holding that a letter of reprimand did not substantially burden plaintiff’s exercise of religion
because it “did not bar him from voicing his [religiously motivated] opposition to same-sex
marriage in other fora or by other means”).
These cases demonstrate the inherent flaws in Plaintiffs’ RFRA claim. Like the plaintiffs
in these cases, Plaintiffs do not claim that their religions require them to engage in the precise
conduct they allege is prohibited—in this case holding vigils or demonstrating on the Supreme
Court Plaza. Plaintiffs describe their religious convictions much more broadly. Plaintiff
Payden-Travers alleges that his “faith compels him to speak out against war and the death
penalty in order to publicly distance himself from the commission of these acts by the
government in the name of the American public.” Am. Compl. ¶ 34. Plaintiff Potts alleges that
her faith compels her to both pray and speak out against torture, war and the death penalty. Id. ¶
39. Plaintiffs allege that one way in which they have sought to accomplish these requirements of
their religions is by praying or demonstrating at the Supreme Court Plaza, and both desire to do
so again in the future. However, Plaintiffs have not alleged that this is the only way or only place

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Plaintiffs could pursue these religious convictions, and it is clearly not. Plaintiffs could speak
out against and distance themselves from torture, war or the death penalty in countless ways.
One example of an alternative suggested by the Defendants, which the Court finds
reasonable, is for Plaintiffs to pray or hold vigils on the sidewalk adjacent to the Supreme Court
Plaza. Plaintiffs respond that praying or demonstrating on the adjacent sidewalk would be
insufficient because “it is essential to both Mr. Payden-Travers’ and Ms. Potts’ religious exercise
that it take place in a location which passersby and the public will sufficiently associate . . . with
the Court.” Pls.’ Opp’n at 3. This argument appears to be premised on a mischaracterization of
the allegations in Plaintiffs’ First Amended Complaint. Plaintiffs do not allege in their complaint
that their religions require them to demonstrate and pray in ways such that the public will
associate their activities with the United States Supreme Court. It simply alleges that their
religions require them to “speak out” and “distance themselves” from certain practices, such as
the death penalty. Even accepting arguendo Plaintiffs’ contention that there are issues with
Defendants’ one proposed alternative, there are still countless other means by which Plaintiffs
could satisfy this religious obligation, many of which may have nothing to do with the Supreme
Court at all. Section 6135 and Regulation 7 prohibit only one.
Accordingly, although section 6135 and Regulation 7 prevent Plaintiffs from engaging in
religiously motivated conduct at a particular location, the Court concludes that they do not
“substantially burden” Plaintiffs’ religious exercise. In doing so, the Court passes no judgment
on the sincerity or legitimacy of Plaintiffs’ religious beliefs. The Court merely holds that section
6135 and Regulation 7 do not violate the RFRA because they restrict only one of a multitude of
means by which Plaintiffs could engage in their religiously motivated activity. Having found
that Plaintiffs cannot make this threshold showing, the Court need not reach Defendants’

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alternative argument that section 6135 and Regulation 7 are the least restrictive means of
furthering a compelling government interest.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ [15] Motion to Dismiss and
DISMISSES Plaintiffs’ complaint. An appropriate Order accompanies this Memorandum
Opinion.
Dated: May 31, 2017
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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