Robert and Mildred Tong v. Chicago Park District, et al.Robert and Mildred Tong live with their three young children in the Edgewater neighborhood on Chicago's near north side. In 2002, they and other residents were invited to participate in a "Buy a Brick" campaign, designed to raise money to pay for a new playground in Senn Park, about two blocks from the Tong home. Donors were entitled to have the inscription of their choice engraved on bricks 4" by 8", with a limit of three lines of text. The Tongs donated $50, and provided the following text for their brick: "Missy, EB & Baby: Jesus is the Cornerstone. Love, Mom & Dad." Later, the president of the Senn Park Advisory Council called to tell them that the religious message "might be a problem." In March 2003, they received a letter from Chicago Park District senior attorney Nelson Brown informing them that "the Park District cannot accept any donors' commemorative bricks that have a religious message," and noting that if they were to accept the Tongs' Christian message, then they "would have no basis for denying the followers of Judaism, of Islam, of Buddhism or of Wicca from placing a comparable message." Robert Tong sent a letter to Brown asking him to reconsider, but to no avail. Incredibly, the Park District attorney said in a second letter that "the donor area is a non-public forum in which the Park District can limit private messages, not a traditional public forum open to all private expression." On July 22, 2003, The Becket Fund filed a lawsuit (PDF format, 95K) against the City of Chicago, the Chicago Park District Board of Commissioners, and other defendants, charging them with violating the Tongs' rights under the First and Fourteenth Amendments to the U.S. Constitution, parallel provisions in the Illinois State Constitution, and the Illinois Religious Freedom Restoration Act. The case was initially assigned to U.S. District Judge James Alesia, but he passed away two days after the complaint was filed. It has been reassigned to Judge Ruben Castillo, who ordered an expedited settlement conference on October 2. On August 28, The Becket Fund filed an unopposed motion to file a First Amended Complaint (PDF format, 92K), which drops the City of Chicago and Mayor Richard M. Daley as defendants, and increases the damages sought from $1 to $21, the minimum amount required for a jury trial. Judge Castillo granted the motion on September 2, 2003. On January 30, 2004, The Becket Fund filed a motion for summary judgment (PDF format, 9K) and a supporting memorandum (PDF format, 169K). The filing included a photo exhibit (PDF format, 1.3MB - very large file) showing dozens of bricks that were accepted and placed in Senn Park and several other Chicago parks where similar Buy-a-Brick fundraising campaigns were used. "Given the near-total lack of any explicit policies regulating messages in the Senn Park Buy-a-Brick forum, and hopelessly arbitrary enforcement, the CPD [Chicago Park District] enjoys total and unbridled discretion to restrict expressive activity in violation of the Free Speech Clause of the First Amendment," the memorandum declared. "Additionally, the censorship of religious messages constitutes a viewpoint- and content-based restriction on speech within a public forum, and also violates the Plaintiffs' rights to be free from discrimination based on the religious nature of their speech under the Free Exercise and Equal Protection Clauses of the U.S. Constitution." Although the CPD "purported to apply a 'policy' excluding religious expression" from Senn Park and similar parks around the city, "In fact, no such policy exists. Instead, the CPD has relied on a mishmash of post hoc justifications that are applied in an irregular and discriminatory fashion . . . In fact, the only actual policy which applies to donor brick descriptions, the Guidelines for Plaques, Markers, and Donor Recognition in Parks ('Donor Guidelines'), contains some content restrictions (not religious ones) which are regularly ignored by the CPD. The result has been a system which confers unbridled discretion upon Park District officials to accept or reject brick inscriptions without limitation." Despite a "Donor Guideline" prohibiting corporate entities, bricks accepted at Senn Park included "North Community Bank - Community Is Our Middle Name" and "The Friends of Senn at Starbucks Edgewater." Despite a guideline declaring that "text on signage should recite the significant community service/public contributions of individuals and groups, rather than personal or individual accomplishments," bricks accepted at Senn park included "We like our names on bricks - Jeff and Julie" and "Bootsie Albert Drennen - Best Cat Ever!" The memorandum notes that "The CPD has admitted that its policy on brick messages was 'implicit.'" and that "In the absence of express policy, CPD officials invoked excerpts from some CPD policies which had never before been applied to brick programs to exclude certain disfavored messages." The imprecise nature of the "Alleged Brick Policy" is such that CPD officials "stated they intend to reject the message 'Kids are God's Angels,' on the grounds that it is a religious message," but bricks accepted at Senn Park include "Plenty of grace be to this Place - the Weyandt Family" and, at Fellger Park, "God Bless America." On April 29, 2004, Judge Castillo issued a 27 page decision (PDF format, 906K - large file) in which he gave the Tongs a decisive victory. "We find that the CPD's refusal to accept the Tong's brick based on religious expression violated the Free Speech Clause," the court ruled. Judge Castillo brushed aside the Park Authority's argument that the brick walkway was a nonpublic forum and therefore subject only to a reasonableness test. "The CPD's exclusion of the Tongs' brick bearing the message "Jesus is the cornerstone" amounted to viewpoint discrimination. The CPD's actions therefore are impermissible regardless of the forum designation," the decision stated. Noting that the Park District had permitted a brick stating that a cat named Bootsie was "the best cat ever," Judge Castillo observed that, "Under the policy as effectuated by the CPD, the Tongs could have submitted an engraving stating that ‘Bootsie is the cornerstone.' Because the Tongs wished to commemorate their personal belief that Jesus is the cornerstone, however, their application was rejected. The CPD therefore violated the Tongs' First Amendment rights by excluding their religious viewpoint." Judge Castillo also had little sympathy for "the CPD's assertion that its prohibition on any religious expression is necessary to 'avoid an appearance of endorsing religious beliefs' in violation of the Establishment Clause." Quoting the Supreme Court's decision in Rosenberger, he said, "Establishment Clause concerns do not justify 'a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design." Moreover, "In deciding to open up broadly the subject matter of buy-a-brick program engravings to commemorative messages tht are important to a donor or the donor's family, the CPD put itself in a position to play editor to root out such expressions that include a religious viewpoint. This level of government interference with private speech is exactly the kind of activity that the First Amendment is designed to curtail." Thus, "we find that the Tongs are entitled to summary judgment based on the CPD's unlawful viewpoint discrimination in violation of the Tongs' First Amendment rights." The judge was also highly critical of the "process" by which the Park District reviewed brick messages: "The Senn Park buy-a-brick program illuminates the CPD's lack of any coherent procedure for reviewing a proposed engraving. . . . The standards that the CPD actually applied when reviewing bricks are as troublesome as its procedure for determining which bricks to review. . . . The record is replete with examples of CPD's confusion. . . . Clearly, those who the CPD designated to explain its buy-a-brick policy are confused as to its standards, if they are aware of any policy at all. Ultimately, the CPD's legal arguments amount to an effort to cobble together the pieces of a scattered policy. But post hoc explanations of an unclear policy cannot revive a constitutionally defective policy. Because the CPD policy is unwritten, and is applied in an incoherent and inconsistent manner, the CPD effectively grants unfettered discretion to whichever CPD staff member — if any — first comes into contact with a buy-a-brick application." The court ordered the Park District to include a brick in the Senn Park walkway with exactly the inscription the Tongs had requested. "While we recognize the difficulty the Chicago Park District faced in creating substantive guidelines that would provide community members with incentives to donate to buy-a-brick programs," the judge concluded, "the government cannot broadly invite the public to express something of importance to them and then exclude such an expression because of its religious viewpoint."
(Robert and Mildred Tong v. Chicago Park District, et al., U.S. District Court for the Northern District of Illinois, Case no. 03-CV-5075) Media Coverage: Issue of public religious messages hits a brick walk (Chicago Sun-Times, column by Mark Brown, July 24, 2003) Couple claim city unfairly barred Jesus brick from playground (Associated Press, as posted on First Amendment Center website, July 24, 2003) Couple sue over message on brick (Chicago Tribune, by Matt O'Connor and Liam Ford, July 23, 2003) [Links to Chicago Tribune archive] Park district sued for denying 'Jesus' brick in fund-raiser (Chicago Sun-Times, by Steve Warmbir, July 23, 2003) [Links to Chicago Sun-Times archive] Couple To Sue Chicago Park District Over "Jesus" Brick (WBBM-TV/CBS2, July 23, 2003) (includes link to video clip) Family Sues Park District Over Civil Rights Concern (NBC5, July 22, 2003) Couple sue over religious message on commemorative brick (Knight-Ridder Tribune news service, as posted by Centre Daily, State College, PA, July 22, 2003) "Jesus" banned from brick walkway (WorldNetDaily, July 23, 2003) Articles & News Items
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