Fairfax County cannot bar Christian activist Rita Warren or anyone else from putting up religious or other displays at the county's government center just because the person doesn't live in the county, a federal appeals court in Richmond ruled yesterday.
In an 9 to 3 decision, the full 4th U.S. Circuit Court of Appeals reversed a decision made earlier this year by a three-judge panel of the court, which ruled that the county did not violate the First Amendment when it barred nonresidents from using an area in front of the government center for public displays.
Fairfax County officials had argued that the space is not a traditional public forum, such as a park or the steps of a statehouse, that must be open to demonstrations and displays. And the three-judge panel ruled in February that Fairfax officials could restrict use of the space as long as they did not exclude a particular point of view.
In an opinion accompanying yesterday's ruling, Chief Judge J. Harvie Wilkinson III argued that to restrict use of the public forum to those who live within Fairfax County would "balkanize our civic dialogue."
"The Washington metropolitan area is an especially inter-connected region, nowhere more so than where the traffic tie-ups are concerned," Wilkinson wrote. "Is a speaker from one jurisdiction to be denied the right to protest the position of a neighboring governing body on the widening of the Springfield Interchange or the replacement of the Woodrow Wilson Bridge? Surely a speaker is entitled to spread the faith or the political gospel beyond the community in which she lives."
The court ruled that the area in front of the government center is in fact a public forum, and that officials can't restrict public use of it without a compelling reason.
Warren, a 71-year-old religious activist from Fairfax City known as the Creche Lady, has long fought for the right to erect her annual Christmas display and Easter cross outside Fairfax County's government center. In 1995, the County Board of Supervisors turned down her petition to put up a creche, but she set up two-foot-high plastic statues of Mary and Joseph and a baby Jesus anyway.
The county backed down but later wrote new regulations that excluded people who don't live in the county from putting up displays. Warren took her fight to U.S. District Court in Alexandria, where she was backed by the American Civil Liberties Union. That court ruled that restricting displays to those by put up by county residents was reasonable. Warren appealed and lost.
That didn't deter Warren, who got permission last Christmas to erect her creche by having a friend--who is a Fairfax County resident--apply for the permit.
Yesterday, Warren said she was elated by her victory and was already making plans to hold a "celebration demonstration" outside the Fairfax County government center.
"This is a victory for our founding fathers, who gave us the Constitution, and the almighty God, who gave me the faith to hang in there," Warren said. "I never doubted I would win. . . . I'm happy for the American people."
Kent Willis, executive director for the Virginia ACLU, said he was relieved.
"This case ran the risk of setting a very dangerous precedent that could have undermined our most fundamental notions of what a public forum is," Willis said. "The right of a Fairfax City resident to protest the actions of the Fairfax County government is as important as the right of a Fairfax County resident to do so."
Fairfax Supervisor Gerald W. Hyland (D-Mount Vernon) said the court's ruling will require the Board of Supervisors to review its ordinance.
"Clearly, this will come back to the board for advice of counsel as to whether or not the opinion should be further appealed to the Supreme Court," Hyland said. "My instincts tell me the chances are pretty good that" the county won't appeal.