Judge sets oral argument on homeless-feeding ban

Posted: July 11, 2012

After two days of testimony from witnesses ranging from homeless advocates to Mayor Nutter, a federal judge has set oral argument for Thursday on the constitutionality of a new city law that bans the public feeding of groups of homeless people in city parks.

"We're ready to go now," said civil rights lawyer Paul M. Messing, who represents four religious groups challenging the feeding ban, after testimony ended Tuesday afternoon.

U.S. District Judge William H. Yohn Jr. smiled and told Messing and lawyers for the city to return Thursday. "This may be a little more complex than it seemed before," he said.

The question is arguably one of the thorniest in constitutional law: drawing the line between a government's legitimate authority to regulate public health and gatherings and violating the First Amendment rights of religious organizations to serve society's most needy.

Nutter's ordinance, which bans public feedings of groups of more than three people in any city park, took effect June 1. Its enforcement has been stayed pending Yohn's ruling on its constitutionality. In the meantime, religious groups that have fed homeless people - in groups of up to 250 - for years along the Benjamin Franklin Parkway, between 16th and 20th Streets, have continued doing so without penalty.

Four groups - Chosen 300 Ministries, the Welcome Church, the King's Jubilee, and Philly Restart - sued challenging the ordinance, represented by the Philadelphia chapter of the American Civil Liberties Union and lawyers from the Philadelphia civil rights firm of Kairys, Rudovsky, Messing & Feinberg.

Nutter administration officials have argued that the public feedings along the parkway - part of the 9,200-acre Fairmount Park - could rob homeless people of dignity, spread food-borne disease, and degrade the park with trash and human waste.

Representatives of the religious groups testified that they had taken the city's free food-sanitation course, follow it in feeding the homeless, and clean the area before and after the homeless get their meals.

What they will not compromise on, however, is what they described as a God-directed mission to minister to the needs of homeless people where they live - on the parkway.

It was for that reason, the clergy testified, that they have rejected Nutter's suggested transition option: temporarily letting homeless services groups conduct public feedings on the apron of City Hall near the north portal, not the west side as officials originally announced.

Still, testified Susan Kretsge, chief of staff in the city Health Department, 10 groups have elected to serve food to homeless people outside City Hall, where there is access to running water and several portable toilets.

Nutter testified for about 90 minutes Tuesday, defending the ban as part of his plan to end homelessness in Philadelphia and rejecting critics who say the ordinance was motivated by pressure from parkway cultural institutions wanting to remove homeless people from the heavily visited park.

"Did the Barnes museum play a role in your decision?" asked Chief Deputy City Solicitor Craig Straw.

"For me? None," replied Nutter, adding, "This is an issue I have had for a couple of decades now. For me, the Barnes was immaterial. We need to deal with people needing services."

Nutter testified somberly and described his opposition to feeding homeless people in public in religious terms, as "a calling."

Nutter said providing free food does not address the needs of homeless people and undercuts their human dignity. "It fills one need," he said. "And that need returns in about three or four hours."

Nutter praised the groups' sincerity and work, but he insisted that helping homeless people get off the street requires a more coordinated effort, involving medical and mental health care and other social services.

In questioning Nutter, Messing referred to warnings in testimony Monday by Sister Mary Scullion, founder of Project H.O.M.E. and an authority on homeless issues.

Scullion outlined state budget cuts that take effect Aug. 1, including $160 million that will end general-assistance benefits for 60,000 single adults including 30,000 living in Philadelphia.

That will be followed by a $21 million cut to the city's funding for social and behavioral health programs, Scullion said.

Scullion said that the city and homeless services providers cannot handle the current demand and that she worried that the budget cuts would only make more people homeless.

Nutter, however, told Yohn that the city and its partners in four indoor sites around Center City can provide three meals a day, seven days a week, for homeless people.

"We do have enough facilities to cover the population," Nutter added.

Contact Joseph A. Slobodzian at 215-854-2985, jslobodzian@phillynews.com, or @joeslobo on Twitter.

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