Repent America founder Michael Marcavage has made a habit of having a video camera rolling when he takes to the streets to confront abortion and gay-rights supporters.
But footage that showed one of Marcavage's followers insulting a transgendered person at an October 2004 gay-rights event in Center City weighed heavily in the decision of a three-judge panel to dismiss a lawsuit filed by the Lansdowne evangelist and 10 other Repent America members against Philadelphia police and representatives of Philly Pride Presents Inc., a gay-rights group.
The ruling by the Third Circuit Court of Appeals said Repent America members had a right to crash an annual gay-rights celebration called OutFest, but not to disrupt a permitted event.
"(W)hen protesters move from distributing literature and wearing signs to disruption of the permitted activities, the existence of a permit tilts the balance in favor of the permit-holders," wrote Judge Dolores K. Sloviter.
Repent America members were arrested at the event and jailed for 21 hours after ignoring police orders to move to the perimeter of the event because they were blocking access to vendor booths.
Shortly before the arrests, one of the appellants, Mark Diener, called a transgendered person a "she-man," saying through a bullhorn, "The mirror lied to you this morning. Your shadow is showing" and "You won't be preaching like this in hell, she-man."
Sloviter disagreed with the appellants' claim that police singled out Repent America members because of the group's anti-homosexual message. "There is no evidence to suggest that the police direction to appellants to move to a different location was based on content or viewpoint," she wrote.
Philly Pride senior adviser Chuck Volz praised the ruling.
"Repent America is the modern-day version of the biblical wolves in sheep clothing," said Volz, a defendant in the suit. "They were gay bashers pretending to be Christians. The court saw right through them."
Though he believes his group, dubbed the Philly 11, was "denied justice," Marcavage, 28, was pleased to see the appeals-court panel pick apart portions of a lower-court ruling. Specifically, the panel disagreed with a claim by a district court judge that Philly Pride, because it obtained a city permit, had a right to exclude groups with contrary views from OutFest.
"OutFest took place in the streets and sidewalks of Philadelphia, an undisputed quintessential public forum," Sloviter wrote. "The issuance of a permit to use this public forum does not transform its status as a public forum."
Repent America members were charged with three felonies, including a hate crime, and five misdemeanors. All were eventually discharged or dismissed.
Marcavage said none of the charges had anything to do with disruption, the foundation of the appeals court ruling. "The same video that contains those comments and cleared us of any wrongdoing was used by the panel to deny us justice," he said.
And though Marcavage said he did not agree with Diener's "she-man" remarks, he said the panel failed to view them in context.
"A man, dressed like a woman, was following our group and calling us all closeted homosexuals," Marcavage said. "He wasn't -- or she wasn't -- arrested. There is also a crowd of people on the same video who can be heard calling us (anatomical expletive) -- they weren't arrested."
Philly Pride attorney Jeremy D. Frey said the circuit judges got it right.
"We were gratified by the Third Circuit's affirmance of the dismissal of the lawsuit brought by Marcavage and his associates against Philly Pride," he said. "The Third Circuit affirmed that Repent America members interfered with Philly Pride's 2004 OutFest event and that their claims against Philly Pride were without merit."
Marcavage was represented by Ted Hoppe, C. Scott Shields and Amanda Brinton of the Media firm Shields & Hoppe.