Let’s say — hypothetically — you didn’t like religion. Suppose you thought it was nothing but ancient superstition holding back the progress of society. Or, say your complaint was more religion-specific: you thought Scientology was an elaborate con to steal people’s money, you thought the Catholic Church was complicit in the abuse of thousands children, or you thought some extremist Muslim preacher was promoting terrorism. What would you do about it?
Well, if you’re in the United States, one really obvious option is to protest. Picket a Catholic church every Sunday until the child-abusing priest is removed. Stand outside the Christian Science Reading Room with pamphlets telling the stories of children who have died from lack of medical treatment. These seem like totally reasonable ideas. In fact, they seem like things that you have a constitutional right to do. After all, we do have a very strong sense that free speech is an important right to protect, and we’ve managed to avoid the idiotic sort of “except if you’re offending someone” caveats that most of Europe seems to have tacked on.
Unless, it turns out, you lived in Chicago, where it was illegal to protest outside a church while services are being conducted. I’m not sure what counted as a service — I don’t see any definition that includes Sunday mass but doesn’t also include Bible studies and things of that sort. When activists were protesting at the Church of Scientology’s Illinois headquarters, the church decided to post a sign saying they had services from 9:30 AM to 10:00 PM every day … and who could say that they didn’t? A law like this is, well, obviously unconstitutional. You can’t take people who believe a certain set of things (gods or other supernatural beings exist) and give them special protections so that they are never protested against.
So when Alex Hageli, a (Christian) lawyer who was at the anti-Scientology protest, decided to accept his citation and challenge it on constitutional grounds, you’d expect him to have an easy win. And you’d be right. The city of Chicago decided to stop enforcing the law and not challenge the case, because it was so obviously unconstitutional. There’s a catch, though. They didn’t cite the reason I explained above. They did it because the law granted an exception for labor protests, and it would be unconstitutional to give special privileges to some types of protests over others.
And that’s … true, of course. It’s just that that’s what the whole law does! It gave special privileges to protests against anything besides religion, because those protests were allowed to happen at relevant times and places. When you make it impossible to protest near a religious organization’s building when religious people are there doing any sort of religious activities, anti-religion protesters can’t actually reach their intended audience. I mean, fine, the law is gone now, and no one really cares that much … and constitutionality cases are often decided on the most narrow grounds available anyway, out of caution. But it’d be nice if the city were to acknowledge that the whole premise of this law is unconstitutional, not just that one minor provision. These sort of fights aren’t only about the immediate law. They’re about shaping precedent and the public’s understanding of what rights mean.