Update 2/26/2016: Mayor Miro Weinberger has announced that the city won't prosecute people wearing masks during the upcoming Mardi Gras festivities.
Until recently, it was an ordinance few people knew existed. But after a couple of questionable incidents — and a subsequent push by the American Civil Liberties Union of Vermont and a group of “furries” — city councilors appear poised to roll back a longstanding ban on masks in Burlington.
The ordinance in question prohibits anyone age 21 or older from wearing masks, hoods or other face-obscuring garments in public places. According to the Vermont Historical Society, it was originally passed in response to local Ku Klux Klan activity.
On Tuesday, the three members of the Ordinance Committee voted to send to the full city council a significantly scaled-back version that would outlaw masks only when a person is breaking the law or harassing someone else.
Oddly enough, an attempt to enforce the mask ban at an anti-Ku Klux Klan rally held in November 2015, helped spark an effort to overturn the ordinance.
At that Church Street rally, police approached two participants wearing Guy Fawkes masks and told them they were violating the city's ban. The two men, who initially refused to identify themselves, weren’t cited — because, it turned out, they were 19 years old.
Roughly a year before this incident, a Burlington police officer warned Vermont Furs, a fandom group devoted to cartoon animals, that the city’s mask ban precluded them from donning their oversized furry heads. As Seven Days reported, the "furries" weren’t cited, but they say the ban keeps them from entertaining on Burlington streets.
The ACLU caught wind of both incidents and wrote to the city contending the ordinance is unconstitutional.
Emphasizing that masks — including Guy Fawkes ones — are frequently used as a form of political expression, ACLU attorney Jay Diaz made the case that Burlington’s ban, which he calls overly broad and vague, violates the First Amendment.
Diaz also suggested that the ordinance “appears to be selectively enforced in violation of the Constitution.”
According to public records requested by the ACLU, just one person has been cited for wearing a mask since January 2013. He was a homeless man who was wearing a black hat and scarf covering all but his eyes one day last March when it was 28 degrees.
The Vermont Furs came out in full force at Tuesday's meeting, though they didn't come in costume. One member, Jessica Owens, told the committee, “The denial of our ability to wear our suits goes against our lifestyle and our artistic interpretation and it goes against our First Amendment right to do so.”
Diaz thanked the ordinance committee for the changes but noted that the ACLU would prefer a total repeal. He described the current ordinance as “utterly unconstitutional” and the proposed changes as “semi-unconstitutional.”
The full council will now review the proposed changes. In the meantime, the ACLU has written a letter to the city administration to suspend the ordinance until that vote, noting that Burlington’s Mardi Gras celebration is next week.