MOOT COURT
Argumentative Paper
The City of Knerr, State of Olympus and
Samantha Sommerman, Parks Director, Petitioners
v.
Reverend William Denolf, Respondent
By: Robert P. Walsh
This paper focuses on the aforementioned case, which was granted writ of certiorari by the U. S.
Supreme Court to the 14th Circuit Court of Appeals. Rev. William Denolf, Pastor of the First Baltic
Christian Church, was denied a permit to use Jones Park, in the City of Knerr, to perform the annual
“Passion Play”. The Supreme Court took on this case to determine whether granting or denying this
permit would violate certain parts of the First Amendment of the U. S. Constitution. This paper will look
at the arguments from both sides of the case, the strengths and weaknesses of each side, and my
personal findings of the case.
To set up the case: Rev. Denolf and FBCC put on the annual “Passion Play” to reenact the crucifixion
of Christ. The play originated on FBCC’s grounds, and grew in popularity over the years, to a point
where the church grounds could no longer adequately hold the performance. As part of the
performance, a cross is erected, and stays up until Easter Sunday morning. The cross is a central part of
both the play and FBCC’s (and other Western Christian churches) religious beliefs. It will also play a
large role in this case.
Rev. Denolf and FBCC applied to the Knerr Parks Department to use Jones Park from March 29 to
March 31 (their Easter weekend), pursuant to Knerr’s rules, regulations and ordinances. FBCC went so
far as to offer to fill in the hole left by the cross at its own expense. Parks Director Samantha
Sommerman granted the permit, pending review and vote by the Knerrr City Council. That body
postponed action on the permit, pending advisement and upcoming elections. The advisement was
based on concerns over the Entanglement Clause of the First Amendment.
The City on Knerr ultimately voted 4-3 to deny the permit on grounds that such permits would violate
the Establishment Clause. This ruling also enjoined FBCC and other religious groups from further redress
and future applications.
Rev. Denolf filed suit in District Court, claiming that the right to Free Speech and Exercise of Religion
was violated. A trial by non-jury convened, with the District Court ruling in favor of the City of Knerr on
grounds of the Establishment Clause. The case was appealed to the 14th Circuit, who overturned the
Lower Court’s ruling, citing that Free Speech and Exercise of Religion were violated—the Free Exercise
Clause of the First Amendment was more compelling than the Entanglement Clause. The case now sits
before the Supreme Court.
Rev. Denolf argues that denial of the permit is an infringement of his right to Free Speech and
Exercise of Religion. Its main strength lies in Capitol Square Review Board v. Pinette. Here, the U. S.
Supreme Court upheld the KKK’s right to erect a cross did not “violate the establishment clause, because
the square has always been used for public displays.” Both the cross and the opinions of passer-bys
were considered private in nature.
In Lynch v. Donnelly, the Lemon test was applied in relation to increased sales for local businesses. It
can be correctly argued that this is enough of a secular reason to allow for performance of the play. See
Lemon v. Kurtzman 403 U. S. 602 (1971).
Finally, Niemotko v. Maryland focuses on the permit process itself. Since the High Court found “lack
of clear standards in the permit process”, that, and the ensuing enjoinment by the City Council imply a
“prior restraint…that is arbitrary and discriminatory.”
Rev. Denolf’s main weakness can be found in two rulings. Good News Club v. Milford Central School
stated that private (and presumably religious) groups cannot hold after school activities because schools
provide a limited public forum/ This backs up Frisby v. Schultz, which defined the types of forums used
in determining the rights covered under the First Amendment. McCallum v. Board of Education also
held that religious expression “crossed the line between church and state”.
The City of Knerr takes the view that granting Rev. Denolf and FBCC the permit violates the
Establishment Clause. Knerr sides with the Greater Knerr Church Association that by allowing FBCC’s
performance to take place. Thus, entanglement of religion by Knerr’s government would take place.
While providing for increased business sales passes the first part of the Lemon test, the other two
parts do not. Since the play takes place before the traditional Easter weekend, FBCC’s religion would
take precedence over other religions during that weekend. Knerr would be entangling itself with FBCC’s
religion. (However, Knerr reversed itself by enjoining any religious organization from applying for future
permits.)
Locke v. Davey can also be cited as a comparison study. This case, as well as Knerr, contends that
governments must be given latitude in issuances of religious requests, and must be able to deny such
permits, as they see fit. Neither Knerr nor the Washington State program cited in Locke imposes any
type of sanctions on religion. Nor do they force one to choose between religion and a public benefit.
The weakness in Knerr’s position is that precedent had already been set to free and open access to a
public park. The sign at the entrance to the park implies this reasoning. Capitol Square establishes the
precedent test
Lamb’s Chapel v. Center Moriches School District brings another parallel to the Knerr case. Both cases
involve putting on religious performances in a public forum. The Court in Lamb held that “any limits…
must be content neutral”, as long as the three tenets of the Lemon test are met.
After reviewing this case, and the accompanying moot court brief, I find in favor of Rev. Denolf.
Capitol Square poses two tests that Rev. Denolf passes in his quest to put on the “Passion Play” in Jones
Park.
At the outset, I mentioned that the cross would be a central part of this case. Like the KKK in Central
Square, the cross in question is a blank, unsigned, unadorned cross. Where a cross represents death and
suffering in general, I feel that it is open to interpretation to the public. Here, the public is not limited to
the citizens of Knerr, as those who live outside Knerr’s city limits, whether it be just for the play, or
commuting to a place of business or work in Knerr. My argument is that an outsider will not necessarily
know who put up the cross, and for what purpose.
I also refer to Fitchburg’s annual White Cross ceremony, held the Sunday before Memorial Day at
Monument Park, one of Fitchburg’s oldest public parks. The crosses are placed in memory of soldiers
hailing from Fitchburg, who have lost their lives in past wars. The crosses are placed regardless of the
individual soldier’s religion. Thus we have soldiers who are Catholic, Jewish, and any one of the
Protestant denominations. While prayers are offered, and there is religious content in this ceremony, it
does not favor one religion over another.
The second test that is used and passed is precedent. In both Knerr and Capitol Square, it is noted
that their respective parks have always been used for public displays. Facts 4 and 5 of the District
Court’s ruling bear this point out. Knerr has rented the park to various organizations for various
events—including several other holidays—even the Easter Egg Hunt.
I use another angle that nobody addresses, except that it is briefly mentioned in fact 4 of the District
Court’s ruling – the Young Men’s Christian Association. While the YMCA is now secular in nature, and its
makeup, it wasn’t always that way. It was started by one of the Protestant denominations as an
alternate meeting place for its members outside of work and church. The word “Christian” is still
present in its name, despite the secularism. Still, the YMCA has been allowed to use Jones Park—for of
all reasons, the traditional Easter Egg Hunt . Knerr’s argument of enjoining all religious organizations
does not even pass its own test.
On these grounds, I find that the 14th Circuit was correct in overturning the Lower Court’s ruling. Rev.
Denolf and the FBCC must be allowed to rent Jones Park for their annual “Passion Play”.
CASES CITED
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Capitol Square Review Board v. Pinette 515 U. S. 753 (1995).
Frisby v. Schultz 487 U. S. 474 (1988).
Good News Club v. Milford Central School 533 U. S. 384 (2001).
Lamb’s Chapel v. Center Moriches School 508 U. S. 384 (1993).
Lemon v. Kurtzman 403 U. S. 602 (1971).
Locke v. Davey 540 U. S. 712 (2004).
7) Lynch v. Donnelly 465 U. S. 668 (1984).
8) McCallum v. Board of Education333 U. S. 203 (1948).
9) Niemotko v. Maryland340 U. S. 268 (1950).