WASHINGTON (BP) — The U.S. Supreme Court considered Monday (Jan. 12) whether an Arizona town’s sign ordinance infringes on a church’s free speech and assembly rights.
The justices heard oral arguments in an appeal by the pastor of a small Phoenix-area church of a lower-court decision in support of the law, which he contends discriminates against congregations while favoring political and ideological messages. The high court is expected to issue an opinion before it adjourns early this summer.
Clyde Reed, pastor of Good News Community Church, challenged a Gilbert, Ariz., code that limits the size of directional signs — like those for church meetings — to six square feet and 12 hours for display while permitting far greater sizes and durations of exhibition for political, ideological and home owners’ association signs.
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) asserted in a friend-of-the-court brief filed by the Christian Legal Society (CLS) that Gilbert’s law is based on a sign’s content and therefore abridges the First Amendment’s free speech clause.
On the day of the arguments, ERLC President Russell Moore warned against government muting of a church’s speech.
“This case is vitally important,” he said in a written statement for Baptist Press. “[It] should mobilize supporters of religious liberty and supporters of free speech to stand together for our First Amendment freedoms.”
The high court’s decision could affect the SBC’s church planting efforts, according to the ERLC. Temporary, directional signs often help church starts inform their communities of their presence.
Good News Community Church depends on directional signs to inform people of its meetings in a public school. Reed said the signs have been “very, very effective” during the 10 years they have been used. The church averages between 25 to 30 adults and four to 10 children in weekly worship.
The Ninth Circuit Court of Appeals in San Francisco upheld a federal judge’s ruling in support of Gilbert, which has a population of more than 200,000. The appeals court ruled the differences in Gilbert’s code are neutral regarding content because “none draws distinctions based on the particular content of the sign.”
Some justices seemed to question the content neutrality of the town’s ordinance in the Jan. 12 arguments.
Philip Savrin, the lawyer for Gilbert, said the town’s liberal provision for ideological signs is based on protection of the “First Amendment right to speak.”
That is “a content-based rationale,” Associate Justice Elena Kagan replied, according to the court’s transcript of the arguments. “It’s viewpoint neutral, but, you know, it’s content-based. … [I]t is content-based to say what is ideology and what is not.”
In contrast to Gilbert’s restrictions on directional signs for Good News Community Church and others, its code:
— Permits ideological signs to be 20 square feet in size and be exhibited indefinitely.
— Allows political signs to be 32 square feet and be displayed 60 days before an election.
— Authorizes home owners’ association signs, which can include directions, to be 80 square feet and be posted 30 days before an event.
After the oral arguments, Reed, 82, said he “never dreamed my small church signs would be a topic for the Supreme Court. All we wanted to do was use temporary signs to welcome and invite the community to our Sunday morning services.
“This whole experience has been shocking to me — our signs inviting people to church are very important yet are treated as second-class speech,” he said at a news conference outside the court building, according to a transcript. “We aren’t asking for special treatment; we just want our town to stop favoring the speech of others over ours. I pray that the Supreme Court will affirm our First Amendment freedoms and uphold our church’s and others’ free speech rights.”
David Cortman, who represented Reed before the justices, warned afterward, “No one’s speech is safe if the government is allowed to pick free-speech winners and losers based on the types of speech government officials prefer.”
Cortman, senior counsel for Alliance Defending Freedom (ADF), expressed faith the Supreme Court’s history of protecting free speech means the justices “will not allow the town of Gilbert to continue giving preferential treatment to certain messages while marginalizing others.”
Before the court, Cortman agreed his argument “does not turn on the fact that it’s a church’s sign,” as Chief Justice John Roberts put it.
“[T]he treatment that we’re seeking is merely equal treatment under the First Amendment,” Cortman told the justices.
“[T]he problem we have is — is should the government be deciding what speech is more valuable than others, because that is exactly what it did in this case,” he said. “It has said that, in fact, your speech is not valuable and we can completely ban it.”
Addressing Cortman, Associate Justice Anthony Kennedy said of the signs, “[U]nder your view, ‘Happy birthday, Uncle Fred’ and ‘Save your soul’ and ‘Birthplace of James Madison’ can all be up for the same length of time, same size.”
Cortman responded, “I think it can, because otherwise I think we have a problem with content-based discrimination.”
Associate Justice Stephen Breyer asked Savrin what the argument in the case was about.
“Can they put up a big sign, ideological, saying, ‘Come to the next service next Tuesday, 4th and H streets, three blocks right and two blocks left?’ All right? Or are you saying they can’t say, ‘Three blocks right and two blocks left?’ That’s what this argument is about?” Breyer asked.
Savrin replied, “That’s what it comes down to.”
Breyer responded, “Well my goodness. I mean, on that, it does sound as if the town is being a little unreasonable, doesn’t it?”
In addition to the ERLC, among others signing onto the CLS brief were the Anglican Church in North America, Association of Christian Schools International, Christian Medical Association, Evangelical Council for Financial Accountability and Lutheran Church-Missouri Synod.
The Missouri Baptist Convention and its Christian Life Commission also filed a friend-of-the-court brief in the case in support of the church. The brief — authored by Southern Baptist, father-son lawyer team Michael and Jonathan Whitehead — argues the sign code violates the First Amendment protections of freedom in speech, religion and assembly.