ARTICLES
February 2004 ARTICLES
Contents © 2004
by Jim Holman.
All rights reserved.
Rights for Dykes
Gay and Lesbian Group, ACLU, Strong-arm Costa Mesa
BY MARIA KENNEDY
A lawsuit against the city of Costa Mesa was filed by the American Civil Liberties Union on behalf of the Gay and Lesbian Community Services Center of Orange County. The lawsuit says that Costa Mesa has been discriminatory in giving out event permits -- in the case in question, to organizers of the 2003 Dyke Parade. The lawsuit is still pending in spite of the fact that the city of Costa Mesa has modified its procedures for permitting groups to hold parades in the city.
The federal lawsuit, filed August of 2003, stems from the 2003 Dyke Parade, which, organizers say, was singled out by the city of Costa Mesa and told to meet burdensome requirements in order to get a parade permit. Organizers of the parade said that when they had applied for the 2002 parade permit, the city of Costa Mesa had given them only eight requirements to fulfill in order to obtain their permit. For the 2003 parade, the city laid down 22 requirements. The city of Costa Mesa contends that the extra measures were necessary because of the behavior of some of the parade participants. During the 2002 parade, according to the city, a lesbian motorcycling group called Dykes on Bikes ignored traffic laws, revved their engines excessively, continually honked their horns, and popped wheelies while on route.
The Dykes on Bikes were not the only colorful aspect of the Dyke Parade, that was held August 16, 2003. ConRev, which calls itself the "world's finest erotic giftshop," had a booth at the parade and described the goings on there. "The day was packed with excitement," said a news blurb on the ConRev website. The excitement included "12 live band performances, a drag king show, a 'kiss-in', a moving speech on gay rights, and finally the march. Lesbians, bisexuals, transgenders, and their friends and supporters relaxed in the carefree environment, soaking up the sun on the grass, playing volleyball, or checking out the different vendor booths lined up along the park fences." As its contribution to the festivities, ConRev said it "gave out flavored lubes and enjoyed the day with the happy crowd."
Some of the restrictions that the parade organizers objected to included limiting the number of motorcyclists who could participate in the march to ten, requiring identifying information from the motorcyclists in order to allow police to cite them after the parade for traffic infractions, requiring motorcyclists to attend a safety briefing by police, and requiring the motorcyclists to parade in a single column. Two other requirements that the city was asking parade organizers to observe involved a disclaimer that the city of Costa Mesa was not responsible for the safety of parade participants and an agreement that the city would be indemnified by the parade organizers in the event that something happened.
The Gay and Lesbian Center of Orange County said that the city of Costa Mesa had violated their constitutional rights to free speech and freedom to assemble in issuing these restrictions for the 2003 parade permit. In an interview with this reporter, the executive director for the Orange County center, Terry Stone, said that the permitting process used by the city of Costa Mesa was "arbitrary and unreasonable." Stone noted that other groups that had applied for parade permits were not unduly burdened with the same requirements. Stone said that the way the Costa Mesa parade ordinance was written, the final decision to issue a parade to a particular group was in the hands of one person, the city manager.
After the ACLU lawsuit was filed, the city of Costa Mesa asked its city attorney to review the ordinance in order to make sure that it does not favor one group over another. The city attorney's office made changes in the way the permit process was implemented. One of the biggest changes is that the permits will now be "content-neutral" -- the type of permit required is no longer tied in with the type of speech featured by the event. The city of Costa Mesa's original ordinance exempted churches from most of the permitting process.
This change in policy, and its effect on churches, is among the fall out from the lawsuit. Church and non-profit groups will no longer be exempt, as they have been in the past, from obtaining permits for events on their own property if an event includes amplifiers, animals, fireworks, or temporary structures. In a December 13 interview with the Daily Pilot, Father Joe Robillard, then-pastor of St. Joachim Catholic Church in Costa Mesa, said that he was concerned about the changes that the revised ordinance contained. Father Robillard, who is no longer at the parish, said that he was concerned about the effects of the permitting process on the church's events. Although the parish routinely gets permits for its annual carnival, other events, such as its Passion play, have not required a permit under the old ordinance. Father Robillard worried that the new ordinance would require the parish to obtain a permit if temporary structures such as stages are used in the Passion play. He told the December 13 Los Angeles Times, "if we had to get a permit for that, I would feel it would be an infringement on our constitutional right to free expression of religion." The secretary who answered the phone at St. Joachim Catholic Church said that she was not familiar with the lawsuit or the ordinance and that the church had not gotten a new pastor who could speak to the issue.
Brad Dacus of the Pacific Justice Institute said that cities need to be cautious if they try and regulate religious activities on church property. "For a city to require a church to go through the arduous process of securing a permit to erect a temporary structure on church property it would likely be a violation of the 2000 Religious Land Use and Institutionalized Persons Act." Dacus said that the existing federal statute protects churches from needless interference by government officials. "Any local government that creates a substantial burden on churches would be forced to go before the federal courts and explain the need for its actions. We at the Pacific Justice Institute have successfully litigated against several cities in the past."
When asked about the impact that the revised ordinance would have on churches, Martha Matthews, a staff attorney with the American Civil Liberties Union, replied that the litigation was not over, so there were still issues that the ACLU was negotiating with the city of Costa Mesa. Matthews noted that while the city has made some changes, the changes "don't fully solve the problem. The parade scheme is still too restrictive."
"We are still negotiating with the city and hopefully we'll have a parade scheme that is constitutional and doesn't infringe on constitutional rights."