Late last month, a federal district court in Washington, D.C. dismissed First Amendment and other constitutional claims filed against the District by a non-Black Christian group pertaining to the now-famous “Black Lives Matter” mural painted on 16th Street.
Following widespread protests in U.S. cities in response to the death of George Floyd, a Black man, at the hands of white police officers in Minneapolis—and shortly after federal law enforcement officials cleared protesters in Lafayette Park with tear gas to allow for a photo opportunity for President Trump—D.C. Mayor Muriel Bowser directed the D.C. Department of Public Works to paint the words “Black Lives Matter” in large yellow letters on 16th Street. The mural, which is in close proximity to the White House, was widely acknowledged as expressing support for protesters and the Black community and in protest of actions taken by the President.
In response to the mural’s placement, a Christian pastor and two other men filed a claim under the Establishment Clause of the First Amendment, claiming that the mural rendered them—Christian, non-Black individuals—“second class citizens.” The group sought a temporary restraining order, which the court denied, and then sought a preliminary injunction.
In ruling on the plaintiffs’ motions for preliminary injunction, the court concluded that the group lacked standing to challenge the mural under the equal protection clause. The court determined that the feelings of ostracization alleged by the plaintiffs were insufficient to establish an injury-in-fact as necessary to create a case or controversy, and thus standing, under Article III of the Constitution. The court further determined that the plaintiffs lacked “taxpayer standing” to claim that their taxpayer dollars were being used in violation of the First Amendment, and also rejected the plaintiffs’ arguments in favor of an “offended observer” classification to achieve standing under the Establishment Clause.
Notably, the plaintiffs did not raise Free Speech Clause claims against the District and the Mayor. These claims would likely have been rejected, as the mural is altogether likely to be government speech. And even if the court had found the plaintiffs to have standing in the case, it seems unlikely that a court would find that the “Black Lives Matter” message was intended to, or could be understood to, create an establishment of religion.
Penkoski v. Bowser, ___ F. Supp. 3d ___, 2020 WL 4923620 (D.D.C. Aug. 21, 2020)