The basic rule is that the government must be neutral in regards to religion. Thus, as a general matter, it cannot treat religious speech differently than it treats other speech. If the town has a valid permit requirement for public gatherings, it can apply them to a public religious gathering. If it doesn’t, it can’t.
I understand that the town generally doesn’t prohibit gatherings on the beach or boardwalk. If that is the case, it cannot bar religious gatherings on the beach or boardwalk. That would be consistent with well settled U.S. Supreme Court decisions that give the greatest protection to “traditional public fora … such as public streets and parks.”
Under the principle that religious speech in the public square is to be treated like other speech, if there are laws in town regarding public address systems and erecting structures that apply to other gatherings on the beach and boardwalk, they would apply to religious gatherings.
New Covenant needs to be treated with regard to the bandstand the way other groups who want to use the bandstand are. I was told that the bandstand is only used for entertainment programs that the town organizes. If that’s the case, it need not change that practice for a religious gathering. However, I understand that you told Kathleen that the bandstand is used for a sunrise Easter service. Just like the government must be neutral with regard to religion versus non-religion, it must be neutral between different religions. It can’t give some a privilege that it denies to others.
If every church decided to hold a service on the beach or boardwalk, the town would have to find a way to reconcile that with the other uses traditionally made of those areas. If every church doing it on a Sunday morning made it impossible for people to walk down the boardwalk, the town could adopt a neutral regulation that applies to all gatherings. For example, it might require a group who wanted to use the beach for a gathering to apply, and say that it is only going to grant the first 10 requests it gets for a particular day, with some mechanism that gives everyone an equal chance.
The ACLU page for which you have the link is a good, practical summary. If I can find anything more specific to the current issue, I’ll send you a link tonight.
RICHARD H. MORSE
ACLU of Delaware
100 West 10th Street, Suite 603
Wilmington, DE 19801