Faith Center Church Evangelistic Ministries v. Glover

No. 05-16132. jury Maj. at rately, as to evidence compartmentalize could Appeals, Court United States irrele- factors, while charge, these each Ninth Circuit. overcome hardly vant, are sufficient 17, 2006. Feb. Submitted Argued created prejudice overwhelming actual conspiracy with joinder case this 20, 2006. Sept. Filed charge. im- reasons, I would find these

For with at least joinder prejudicial,

proper charge. fraud the document

respect majority’s I dissent

Accordingly, in this prejudice nowas that there

holding

case. EVANGEL CHURCH

FAITH CENTER MINISTRIES, a California

ISTIC Hat corporation;

non-profit individual, Plaintiffs- Hopkins, an

tie

Appellees, Chair GLOVER, member D.

Federal County Board Costa the Contra DeSaulnier; John

Supervisors; Mark Greenberg, members Gioia; Millie

M. Board Costa

of the Contra Sweeten; Anne W.

Supervisors; John Librarian;

Cain, Contra Costa Librarian Branch

Patty Chan, Senior the Contra Branch Antioch Library; Laura County Public

Costa Deputy

O’Donahue, Administrative Branch the Antioch

Director Li Public Costa Contra Uilkema, Defendants- Gayle

brary; B.

Appellants.

Silvano Marchesi, B. Kelly M. Flanagan, and Merida, Danielle R. County Counsel, Martinez, CA; Debra S. Belaga and Col- leen M. Kennedy, O’Melveny Myers & I. Francisco, CA, appel- LLP, San disputed. lants. are not facts The relevant (“County”) makes Costa Contra McCaleb, Bull, Gary S. Benjamin W. library its public available to Lorence, Defense Alliance W. Jordan hours. during operating meeting rooms A. Scottsdale, AZ; Mur- Elizabeth Fund, these meet- making goal in County’s Fund, Washington, Defense Alliance ray, encourage the is “to available rooms ing Chandler, De- Alliance D. D.C.; Timothy for edu- meeting rooms library use CA; Terry L. Folsom, Fund, fense community related cational, cultural L. Terry Law Offices Thompson, Pur- and activities.” meetings, programs CA, appellees. Alamo, for the Thompson, suant organi- civic “[n]on-profit policy, schools zations, organizations, for-profit may use organizations” governmental “meetings, space for meeting room educational, cul- or activities programs, County The community interest.” or tural the rooms in meeting of the regulates use PAEZ and A. RICHARD Before: (1) meeting rooms library ways: following TALLMAN, Judges, Circuit C. RICHARD first-come, first-served aon are available KARLTON,* Senior K. and LAWRENCE an (2) submit applicant must basis; the Judge. District and applicant the that identifies application (3) the access to meeting; purpose PAEZ, Judge: Circuit upon approval contingent meeting room prelimi- of a grant library from the appeal staff, the library This by the evangelical deny application an an injunction involves to nary right reserves granted; to a previously access seeking permission church or revoke Christian conduct, for use among a fee (4) pay must to meeting applicant room an library meeting is activities, meeting services. when religious charges it public, when general open between navigate to upon are called We involves sales fee, it when or admission an interests: important equally two (5) may not utilize solicitations; schools to right access church’s purposes “for instructional meeting room groups, to other open building that curriculum”; and part of regular aas its preserve right government’s “shall not (6) meeting room library con- We uses. intended property services.” used when court district erred that the clude on “Reli- likely to succeed was restriction policy church last that the It is the found case. subject of this Amendment First is the gious merits of its Use” on has twice restriction Use” “Religious its discretion abused The and therefore claim action present since injunctive relief. amended been preliminary granting Initially, court. in the district 28 U.S.C. under filed jurisdiction have We meeting “[Ijibrary provided policy and re- part we reverse § pur- used not be shall rooms mand. California, by designation. * sitting Karlton, District Senior K. Lawrence Honorable Judge Eastern for the District States United poses.” In August modi- Encourage thru Salvation Jesus Christ and fied the prohibit use Build up Community.” Hopkins Pastor “for received rooms services or confirmation from Antioch Li- brary staff that 14, 2004, applications activities.” On her December had been approved and that Faith Supervisors Board of adopted Res- dates were reserved library’s No.2004/655, olution calendar. current policy, prohibit “religious services” from Faith Center advertised May 29, being conducted in library meeting rooms. 2004 meeting a flyer with describing a “Women of Excellence Conference” spon- Plaintiff Faith Center Church Evangel- sored Faith Center Evangelistic Minis- istic is a non-profit Ministries tries Outreach. flyer stated: corporation by plaintiff led Pastor Hattie Antioch, Coming California, on May Mae Hopkins Center”). (collectively “Faith 29th where power of God According to Faith Center’s verified would be moving bring miracles into amended complaint, Hopkins Pastor be- your life. “For this is the hour of the lieves she is called to share her Chris- believer,” thus Lord, saith the for divine tian faith with others. Pastor Hopkins impartation of spiritual gifts, and em- believes there many individuals powerment, for body of Christ who need to hear about the gospel of Jesus move forward in total victory. Come Christ but who never enter a tradi- your receive blessing! tional church building. To reach those The flyer day’s divided the activities into individuals, Hopkins Pastor holds meetings a ‘Wordshop” from 11:00 a.m. to 12:00 and worship non-church build- p.m., refreshments, and an afternoon ings under auspices of Faith Center. “Praise and Worship” service with a ser- Participants Faith Center’s meetings bymon Pastor Hopkins p.m. from 1:00 “(a) generally educational, discuss cultural, 3:00 p.m. topic The of the morning and community issues from a religious per- “ “wordshop” was ‘The Making of an In- (b) spective; engage in religious speech tercessor,’ an End-time call Prayer for religious (c) and worship; and engage in every Believer, and to pray fervent, how discussing the Bible and other religious effectual Prayers that God hears and an- [as books well teaching, as] praying, sing- swers.” ing, testimonies, sharing meals, sharing Faith Center held its meeting and ser- and discussing political social issues.” May 29, vice on 2004. Toward the end of Hopkins Pastor believes that divine service, the afternoon Antioch Library providence guided her to begin holding staff informed Faith Center representa- Faith Center meetings Antioch, Califor- tives they that were not permitted to use 2004, nia. In May Hopkins Pastor submit- the meeting room for religious activities. ted applications requesting to use the According Center, to Faith the library County’s Antioch Branch Library meeting staff did express concern about exces- 29, room May for and July sive noise but rather about a violation of application, each Hopkins Pastor de- the “Religious which, Use” policy, at that the purpose scribed of Faith Center’s time, prohibited library the use of meeting meetings as “Prayer, Praise and Worship rooms “religious purposes.”1 In June Open Public, to the Purpose to Teach and the County removed Faith Center’s 1. Faith Center contends out that pants consider- did not use musical instruments or am- patrons, for library ation the meeting partici- plified sound. explains The that the morning “wordsh- Center’s Faith and that the Antioch meeting from 31, 2004

July type meeting was 29th May op” with confirmed later Library calendar would be activity that religious had meeting July that Center Faith The policy. the current under permitted cancelled. been barring however, argued County, sued Center Faith July On worship Faith Center’s Faith excluding County from enjoin permissible awas meeting room from the meetings on proposed Center’s meant category aof exclusion “Religious Use” basis of for its forum a limited preserve decla- sought a also Center Faith policy.2 Faith County viewed uses. intended was policy meeting room ration “praise May 29th afternoon Center’s applied and as face on its unconstitutional worship as mere worship” session use of proposed Faith Center’s the meet- for which exceeding purpose expressed Center room.3 Faith meeting created.4 had been forum ing room meetings morning Saturday to hold desire Faith every other Cen- granted room court district Antioch in the injunction. preliminary motion ter’s month. Evangelistic Church Faith Center court, Center Faith district Before Glover, No. Ministries County discriminated argued 2005). (N.D.Cal. May WL 1220947 basis on the Center against Faith that Faith concluded court The district it enforced when viewpoint church’s likely prevail substantially meet- access prohibiting old the Coun- enforcement claim that purposes” “religious ing meeting room ty’s current past 31, 2004 July Faith Center’s cancelled proposed to exclude policies asserted also Faith Center meeting. result activities would County’s “Reli- any of enforcement viewpoint discrimination. unconstitutional current including the policies, gious Use” on the granted relief court The district services,” re- would “religious barring one chal- applied Faith Center’s basis viola- discrimination sult lenge. the First Amendment. tion order based its court district The former its that County agreed worship (1) religious premises: legal four overly broad were policies

meeting room Clause; that Establishment violation not sound- meeting room is Library Antioch facially because invalid Library policy heard the could be May service and the proof County designated does County created meeting had room. the the outside speech problem. regulation was a of policy’s argue excessive noise and the forum governmen- compelling by justified was not Federal as defendants Center named 2. Faith interest; County violated the and that tal Su- of (chair Board the Glover D. protection. The equal right to Center's Faith Gioia, DeSaulnier, John M. Mark pervisors); separate these address did not court district Uilkema Gayle B. Greenberg, and Millie claims. Supervi- County Board (members of the Administrator); (County sors); Sweeten John “religious County applied the 4.Although the Librarian); Patty Chan (County Cain Anne it the time policy in existence purposes” Branch); of the Antioch (Senior Librarian meeting, July 31st cancelled (Administrative Deputy Laura O'Donahue bar it would consistently maintained has Branch) (collectively the Antioch Director "County”). policy. revised under the alleged that enforcement Center also 3. Faith religion in hostile Library policy was protected by the First Amend- of a preliminary injunction when the dis- (2) ment; religious worship cannot be dis- trict court has its abused discretion or has tinguished from other forms of religious based decision on an erroneous legal (3) speech; the exclusion wor- standard or on clearly erroneous findings ship permissible from otherwise speech of fact. See Satava v. Lowry, 323 F.3d a religious nature constitutes viewpoint 805, (9th Cir.2003). Application of er- (4) discrimination; there was no compel- roneous legal principles district ling Establishment Clause concern justi- court is an abuse of discretion. See A & fy Faith Center’s exclusion.5 Records, M Inc., Inc. v. Napster, 239 F.3d As (9th the district clear, court Cir.2001). made pro- Underlying is- ceeded on the basis afternoon sues law are novo, reviewed de including “praise and worship” session constituted the claim that the district court relied on pure religious worship services.6 Faith an erroneous legal premise to arrive at its Center did not dispute this contention be- decision grant a preliminary injunction. cause it argued that even if the afternoon Thus, id. we must determine “wheth- session was mere religious worship, the er the court employed the appropriate le- court could not draw a constitutionally per- gal standards governing the issuance of a missible distinction between afternoon preliminary injunction and whether worship and the rest of Faith Center’s district court correctly apprehended the religious speech Thus, activities. as the law with respect underlying issues parties do, we understand the district in the case.” Sammartano v. First Judi- court’s grant of preliminary injunctive re- Court, cial Dist. (9th 303 F.3d enjoin lief to application of Cir.2002) (internal quotation marks and ci- policy to bar worship services. omitted). tation This appeal followed. III.

II. jurisdiction We have under 28 A preliminary injunction may issue U.S.C. § 1292. willWe reverse grant when the moving party ei- demonstrates In light of the district court's determination The Court: I They know. are making against discriminated argument even assuming worship. it’s That Center's on the viewpoint, basis of gets into a questions. set of new court did not address the nature of the forum County's created opening your Court: What is bottom Is line? library meeting public. rooms to the your bottom line then the Court cannot any issue injunction which the has effect of 6. The transcripts of the preliminary injunc- precluding, you would call it or the hearing tion show that the district court un- it, courts call mere worship in the derstood that the afternoon session constitut- rooms? pure ed services, worship even as [Counsel for Faith right, Center]: That's Faith Center's other activities earlier in the your honor. day did not: The dissent dismisses repre- Faith Center’s [Counsel for County]: I have to sentation at take the preliminary injunction hear- issue a little bit ing. with the However, characterization See Op., Dissent at 1218 n. 2. that it is defendants who have representation characterized is consistent with other what Faith doing Center is as worship. evidence in the record that Faith Center in- Faith Center has characterized way, it that tended its afternoon session to consist of reli- your honor. gious worship services. supra at 1199. 1202 to demon- case is sufficient in this claim success “(1) probable of combination

ther therefore injury. We irreparable irrepa strate of possibility on merits determining whether our review (2) confíne questions harm; that serious rable a likeli- has demonstrated Center hardships Faith of and the balance raised are its First of Inc., merits Records, on the of hood success A & M favor.” tips challenge.7 applied” “as are Amendment “These formulations F.3d at 239 two represent but tests different not IV. the de in which sliding scale aon points as the increases harm irreparable of gree A. de the merits on of success probability matter, inqui our As a preliminary Contractors Gen. Associated creases.” of if Faith Center’s ry ends F.2d Equity, 950 Econ. v. Coal. Cal. to First “speech” constitute do not (internal Cir.1991) (9th quota 1410, 1401, conclude We protection. Amendment omitted). Accord and citation marks tion speech protected engaged Faith probabili has 100%a “if movant ingly, the Antioch met in participants when merits, alone this of ty success worship. praise, prayer, Library a district court’s of to reversal entitles 269, 263, Vincent, 454 U.S. v. See Widmar without injunction, preliminary of a denial (1981) 440 269, L.Ed.2d 70 102 S.Ct. hardships.” the balance regard to ... and discussion (“[Rjeligious (internal Sammartano, at 965 F.3d 303 pro and association speech are forms omitted). marks quotation Amendment.”); Good First tected conclud court district Because Sch., 533 U.S. Cent. v. Club Milford County’s li that enforcement ed 2093, L.Ed.2d 111, 98, substan brary “quintessen (2001) (finding activities right likely to violate tially such as in nature tially religious” also court expression, freedom rec instruction, discussion prayer, and demon had Faith Center concluded speech); Bible, protected itation of harm. irreparable requisite strated Union Moriches v. Center Chapel Lamb’s Burns, 427 See Elrod Dist., 508 U.S. Sch. Free (“The (1976) L.Ed.2d 547 S.Ct. (1993) (finding L.Ed.2d 352 freedoms, for First Amendment loss and edu of cultural presentation that the time, unquestion periods minimal even subject matter cational injury.”); irreparable ably constitutes by the protected perspective (“[A] party Sammartano, at 973 303 F.3d Amendment). First in a injunctive relief seeking preliminary however, Constitution, does ir can establish context Amendment First protected forms that all guarantee to merit injury sufficient reparable prop heard on exis demonstrating the of relief grant Government, 'no less than erty. “[T]he Amendment First a colorable tence power has property, owner private cita (internal marks and quotation claim.” control under its property preserve exis omitted)). agree that We tion ” lawfully dedicated.’ it is which use Amendment First a colorable tence supra See arguments. other constitutional court the district we conclude 7. Because remand, court district Upon of Faith 3. the basis note granting relief on erred in instance. the first applied chal- claims in as these First Amendment address Center's address Faith lenge, need we 1203 Cornelius v. Legal NAACP & Cornelius, Educ. course.” 473 802, U.S. at Def. 105 Fund, 788, 800, 473 3439, U.S. 105 S.Ct. 87 S.Ct. 3439. ability government (1985) 567 L.Ed.2d (quoting Greer v. to limit speech in a traditional or designat- Spock, 828, 836, 424 1211, U.S. 96 S.Ct. 47 ed public forum is sharply circumscribed. (1976)). L.Ed.2d 505 Supreme Court regulation Content-based justified is only has adopted a forum analysis to balance when “necessary to serve a compelling “when the Government’s interest limit- state interest and [when] it is narrowly ing the use of property to its intended drawn achieve that end.” Perry, 460 purpose outweighs the interest of 45, those at U.S. 103 S.Ct. 948. Content-neutral wishing to use the property for pur- restrictions regulate time, place, poses.” United Kokinda, States v. 497 and manner of speech are permissible so 720, 726, U.S. 3115, 110 S.Ct. 111 L.Ed.2d as long they are “narrowly tailored to (1990) (internal quotation marks and serve a significant government interest, omitted). Thus, citation we must at the and[they] open leave ample alternative outset determine the nature of the forum channels of communication.” Id. by established the County it opened when Any public property that is not the Antioch Library meeting room vari- by tradition or designation a forum for ous community groups. public communication is classified as a begin We our forum analysis by non-public forum. DiLoreto, See 196 F.3d “identifying] the nature of the forum” and at 965. Regulation ain nonpub “whether the forum [at public issue] is or lic forum subject to less judi demanding non-public.” Cornelius, 797, 473 U.S. at cial scrutiny. “The challenged regulation 105 S.Ct. 3439. analysis Forum has tradi only reasonable, need long as as the tionally government divided property regulation into is not an effort to suppress the categories: three public fora, designated speaker’s activity due to disagreement public fora, and nonpublic fora. DiLoreto with the speaker’s view.” Int’l Soc. for v. Downey Sch. Educ., Dist. Bd. Krishna Lee, v. Unified Consciousness U.S. (9th 958, Cir.1999). F.3d 672, Once 679, 112 S.Ct. 120 L.Ed.2d 541 forum identified, we (1992). determine whether restrictions justified are by the We have recognized that requisite Cornelius, standard. Supreme Court, in decisions subsequent to 797, 105 S.Ct. Perry Cornelius, has identified anoth Traditional public fora such as er category public “limited forum”— —the public streets parks are locations that to describe a nonpublic forum that “by long tradition government government fíat intentionally has opened to have been devoted to assembly and de certain groups or discussion of bate.” Perry Educ. v. Ass’n Perry Local topics. certain DiLoreto, F.3d Ass’n, Educators’ 37, 45, 460 U.S. 103 965 (citing Rosenberger Rector & Visi (1983). 74 L.Ed.2d 794 When tors the Univ. Virginia, 515 U.S. government intentionally dedicates its 132 L.Ed.2d 700 property to expressive conduct, (1995)). it also cre Restrictions governing access to a public ates a forum. Id. Such designated limited forum permitted long so public fora cannot be by inaction; created they are viewpoint neutral and reason must “intentionally open[ ] able in light of the purpose served a nontraditional for public forum dis- forum.8 8. We have previously noted that "[t]he con tours 'designated terms public forum'

1204 organizations, for-profit organizations,

B. organizations” governmental and schools Li Antioch that the conclude We for meeting room Library a branch to use public is a limited meeting room brary edu- of or activities programs, “meetings, the Coun of and that enforcement forum community interest.” cational, or cultural worship ser to exclude policy ty’s towas County’s purpose Evidently, the reasonable room is meeting from the vices large partici- community at invite the clear, It is purpose. forum’s light of the for ex- meeting room the in use of pate otherwise, that party contends and neither the practice, In activity. pressive County is neither by the created the forum groups community variety a allowed of has non-public nor forum a public a traditional Library Antioch meetings the hold Rather, dispute wheth parties forum. Club room, including the Sierra meeting a constitutes meeting room the Antioch er writing, Narcotics of letter purposes forum. public limited or designated meeting, and recovery for a Anonymous of fo type Club evaluating Democratic In Costa East Contra issue, policy to “the candi- look Democratic we learn about people rum at “let nature of government, the and issues.”9 practice dates with ex compatibility and its property purpose with broad policy A the forum whether activity, and pressive of an intent dispositive is not however expressive and dedicated designed In by designation. forum a public create Rosary City v. Children activity.” of Club, Supreme Court News Good (9th 972, Cir. Phoenix, 976 154 F.3d of conclusion Circuit’s Second adopted the Cornelius, 1998) at (citing U.S. had created York of New that the State Liber 3439); Am. Civil also see 105 S.Ct. pub it made public forum when limited Vegas, Las City Nev. v. ties Union “social, civic available lic schools Cir.2003). (9th 1092, 1098 333 F.3d meetings and entertainment recreational is to discern inquiry of our purpose events, pertaining and other uses the forum making intent government’s community.” Good welfare Cornelius, use. See public available 106, 102, at 802, 105 3439. 473 U.S. omitted). (internal Other marks quotation broadly similar interpreted courts have meeting library public limited to create policies worded and civic “[n]on-profit allows character); v. Warren always "unlimited” public forum’ have Fairfax ‘limited Cir.1999) 186, (4th DiLoreto, 193-94 County, 4. F.3d at 965 n. 196 F.3d clear.” been banc); Police interchangeable. (en A limited v. Bureau are not Kreimer The terms (3d desig sub-category Morristown, n. 21 1261 & public forum is F.2d forum, public where 1992); Owego-Apalachin nated Sch. v. Travis Cir. access reserves nonpublic but opens 1991). forum (2d Dist., Cir. 927 F.2d categories of groups only or to it for certain Pasco, City 241 F.3d Hopper v. speech. appli- examples of other offers Faith Center Cir.2001). (9th a limited 1074-75 meeting seeking access cants forum, review restrictions public we court County. the district As rooms in for their viewpoint neutral however, noted, forum the relevant correctly follow courts Other reasonableness. speak- sought by the by the access is "defined White, See, e.g., practice. Bowman same DiLoreto, this er,” 196 F.3d Cir.2006) (eschew (8th 975-76 444 F.3d Library Antioch case forum designated or limited ing terminology room. public designated of a in favor forum a ''limited” either of classified forum

1205 fora. See Bronx Household access to an applicant on a non-policy ba- Bd. Ed. City York, New 331 F.3d sis. See Hopper, (“[C]on- 241 F.3d at 1076 (2d Cir.2003) 346 (recognizing sisteney in application is the hallmark of same New policy York State at issue in any policy designed preserve the non- Good News Club created a public limited public forum.”) status of a forum); Campbell v. St. Tammany Parish The nature of the forum also supports Bd., Sch. No. A. Civ. 2003 WL that, conclusion although the communi- * (E.D.La. 30, 2003) 1 July ty at large has been invited use the (unpublished) (holding that school board’s room, library meeting room policy of granting access “civic intended to open be public unlimited recreational meetings ... and other uses expression. A library is quintessentially pertaining to the welfare of the communi “a place dedicated to quiet, to knowledge, ty” forum).10 created a public limited and to beauty,” Louisiana, Brown v. Here, County’s policy and 131, 142, U.S. 86 S.Ct. L.Ed.2d practices make clear that the County did (1966); where worthy “the missions fa- not intend for the Antioch Library meeting cilitating learning and cultural enrich- be open for indiscriminate use. ment” fostered, are United States v. Am. The County’s policy excludes schools from Ass’n, Library 194, 203, 539 U.S. using the meeting room “for instructional 2297, 156 (2003); L.Ed.2d 221 and whose purposes as a regular part of the curricu “very purpose is to aid in acquisition lum” organizations who wish to en knowledge through reading, writing and gage “religious Additionally, services.” quiet contemplation,” Kreimer, 958 F.2d at policy requires a potential user to sub mit an application describing the intended We also note that the Antioch meeting use identifying the applicant. There room is located within the Antioch Branch after, application must be reviewed Library itself, that the meeting room is and approved in advance County. during accessible normal operating hours Requiring prior permission for access to when other patrons present, forum demonstrates that a public forum and that can sound heard nonpartici- has not been by designation. created pants. Thus, while Library Cornelius, 105 S.Ct. 3439. room is compatible with different kinds Finally, the policy requires an applicant to expressive activity such as a group discus- pay a fee for certain proposed By uses. lecture, sion or we are mindful that charging a fee in circumstances, certain forum was not intended to undermine the the County has demonstrated its desire to library’s primary function aas venue for limit access to the library meeting room reading, writing, quiet contemplation. for certain purposes and speakers.

The record indicates that policy delineating has consistently applied policy restric- the speakers and appropriate uses for the tions. Faith Center does not contend that Library meeting room, its consistent the County has ever failed to screen an screening applications, and its require application or that the granted has ment of a fee in limited circumstances, 10. We have interpreted policies also Cir.2003) with a (holding that school to dis- purpose" “broad to nevertheless create a lim- flyers tribute about summer activities that are public See, ited e.g., forum. Hills v. Scottsdale "of interest to school-children” established Dist., Sch. (9th 329 F.3d forum). limited Unified be room to meeting allow the To pose. the Anti- that our conclusion

underscores would trans- a classroom into converted indiscrim- for not dedicated forum was och a from the forum of the the character that form therefore hold use. We inate public to a room community meeting a limited is meeting room Library Antioch to access restrictions school. whose forum public ... so subject matter be “based County’s deci token, the By the same are reason- drawn distinctions the as long Faith to exclude sion by the served purpose the of light in able is meeting the room from worship services Corne- neutral.” and are forum so library policy the light in of reasonable We lius, U.S. 473 transformed is not forum the Antioch whether of question next proceed worship. Faith of house an occasional into prohibit decision County’s the to reach that it acknowledges seeks Center conducting from might who individuals to those out is room meeting Library the in building, and church a traditional enter served purpose the light of in reasonable experience church evangelical the bring forum. by the the wrong with nothing seeWe them. or subject matter excluding certain County C. with inconsistent deems activities analysis focus “[Rjeasonableness long as the so purpose, the forum’s consistent is the limitation whether es on speaker’s a against not discriminate does the pur property preserving

with County’s To conclude viewpoint. DiLoreto, it is dedicated.” to which pose worship services of exclusion (internal marks quotation at 967 F.3d unreason buildings is from is a forum omitted). actual Although the prop “remarkable in the result would able func room, the nature library [building] opened any public osition library aas County’s of tion use opened meetings must civic reason evaluating whole is relevant mosque.” or church, synagogue, as exclusions. County’s ableness 139, 121S.Ct. Good News at 968. id. (Souter, J., dissenting). library poli- County’s of the purpose The inter- also has reasonable The meeting rooms to make cy is meeting Library limiting est for dif- community resource aas available interfere potentially could to uses that activity such expressive ferent kinds library. function of primary with lectures, discussions, meetings, ex- policy DiLoreto, district a school of edu- or activities “meetings, programs, too deemed that was matter cluded interest.” community cational, cultural advertise- from or controversial sensitive use of regulates County’s The fence. high school’s baseball on a ments the character preserve meeting room concerns District’s at 966. “The F.3d an meeting space, a common forum as contro- potential disruption regarding hall, lecture community alternative light reasonable found versy” were board-room, local or the corporate limited forum having circumstance for exam- library policy, Starbucks. fence) a public within (the advertisement using the meet- schools prohibits ple, thus at 968. We Id. secondary school. the school’s regular part room as ing an advertisement the exclusion upheld exclusion curriculum. Ten Command- the text containing pur- of its light reasonable schools ments because it was inconsistent with the it preserves purpose of that limited purpose forum, limited served the forum. viewpoint discrimination, [or] which presumed impermissible when directed too, Here legitimate has a against speech otherwise within the fo- interest in screening applications and ex- rum’s limitations.” Id. at cluding meeting room that may activities S.Ct. 2510. interfere with library’s primary func- sanctuary tion as a for reading, writing, We hold that the exclusion of quiet contemplation. rea- Faith religious Center’s worship services sonably could conclude that the controver- from the Library Antioch meeting room is sy and distraction religious worship a permissible limitation subject on the within Library the Antioch meeting room matter that may be discussed in the meet may alienate patrons and undermine the room, ing and that it is not suppression of library’s purpose of making itself available prohibited perspective from an otherwise to the whole community. id. We permissible topic. In holding, so we ad therefore conclude that County’s prohi- dress two arguments by raised Faith Cen bition on religious worship services is rea- ter directly bear analysis. our light sonable in purpose served First, Faith Center contends that the pro Library meeting room.11 hibition on religious worship services is impermissible viewpoint discrimination be

V. cause “prayer, praise and worship” is an educational, cultural, and Although community-relat policy, and its activity ed that has been suppressed decision to bar Faith due Center from using to Faith Center’s religious Library perspective. meeting room to conduct reli- gious services, worship is reasonable in Second, Faith Center argues that light of the purpose, forum’s Faith Center religious worship cannot be distinguished likely is to succeed on the merits of its religious speech that is permit- First claim Amendment if it can establish ted in the Library, Antioch to attempt against discriminated a judicially enforceable distinction would because viewpoint. entangle government with in a manner forbidden the Establishment forum, limited Clause. government free reserve access to the forum “for certain groups or for the dis A. cussion of topics.” certain Rosenberger, 515 U.S. at 115 S.Ct. 2510. Access We first address whether may restricted, however, be if the “ra has discriminated on the basis of content tionale the restriction” is the “specific or viewpoint. “Content discrimination oc- motivating ideology or opinion or per government curs when the chooses the spective speaker.” Id. We must subjects discussed, while identify the County’s whether exclusion of viewpoint discrimination occurs when the prohibits speech by particular Library from the meeting room is “content speakers, thereby a particular suppressing discrimination, which may be if permissible subject.” view about a Sylvester, Giebel however, County, acknowledges express that it on other- may not bar using Faith Center from permissible subject wise matter. Libraiy meeting room to conduct activities (9th Cir.2001) (internal be- facility access a school was denied

244 F.3d omitted). barring school district’s The distinction cause quotation marks religious purposes. use of the rooms for regulation on the basis of between however, unanimously held that “is not The Court viewpoint, matter or on the basis one,” “discriminate[d] at district Rosenberger, 515 school precise U.S. recog- viewpoint [by] permit[ting] prop- school this court has 115 S.Ct. all nized, ‘subject erty presentation at matter’ to be used level “the which rearing family about issues child whether discrimina- views is defined can control subject mat- except dealing with the to be on the basis of content those tion held 10; Giebel, standpoint.” n. ter from a viewpoint,” 244 F.3d Post, 2141. The test is wheth- see also Robert C. Subsidized 151, perspec- & n. 96 er the has excluded Speech, 106 YALE L.J. (1996). subject permit- on otherwise tives a matter by forum. ted

The Court’s decision in Boos Supreme applied test Barry exemplifies difficulty of iden- The Court that Rosenber- v. ger. Rosenberger, a an In the Court considered tifying regulation excludes whether of University Virginia policy or a of category of restricts whether a entire 312, excluding publications eligi- from viewpoint. prohibited U.S. (1988) dis- 1157, bility viewpoint for student funds was (plurali- 99 L.Ed.2d 333 Boos, or a content-based exclusion. ty opinion). In the Court reviewed crimination University sought possible of The to avoid a prohibited display a that statute by exclud- signs disparaging foreign government a Establishment Clause violation government’s ing supported “religious activ- funding from within 500 feet of that argued ity,” including student that es- embassy. plaintiffs publications poused promoted religious view- statute discriminated on basis of beliefs. , 825, speech that the for- See 515 at 115 S.Ct. 2510. point because favored however, determined, majority From that “the eign government permitted. subject a standpoint, religion matter exclude plaintiffs’ University [did] subject con- matter but for disfa- regulated by ‘speech selected] the statute was journalistic cerning foreign government’ and the re- vored treatment those student a viewpoints.” of improperly striction favored one side efforts with editorial rejected argu- at the debate. The Court this Id: S.Ct. 2510. Because by defining student free to discuss publications ment matter were myriad a views regulation generali- topic at a level of from different prohibited perspective, the ty: speech against foreign governments. other than the discriminated had on the basis University Because the statute excluded this entire any viewpoint. Id. category regard without criticism, particular foreign government or recently, Most News Club Good plurality of the Court concluded that School, the held Court Central Milford viewpoint-neutral. statute was Id. engaged viewpoint district school 108 S.Ct. 1157. when it refused to allow discrimination (“Club”) offer a Chapel, the Court articulated Christian children’s club Lamb’s moral and charac- distinguishing religious perspective a test content on between discrimination. in a forum that was development A ter school viewpoint community involvement. group seeking open a film series wide show its facilities from The school district allowed rearing perspective child a Christian be used for activities “pertaining to Second, the Court drew a distinction welfare community,” facili- between the Club’s activities “mere ties were available to any group pro- religious worship, divorced any teach- moted the moral and develop- character ing of moral values.” Id. at 112 n. ment of children. See 533 U.S. at 121 S.Ct. 2093. Although the school district S.Ct. 2093. Comparing the circumstances contended that the Club’s activities consti- to Lamb’s Chapel, the Court found that tuted worship, the rejected Court the school district had discriminated on the that characterization and noted that basis of denying the Club the court of appeals made no such determina- opportunity to teach moral and character tion. The Court drew line at religious development to children from a religious worship because it did not regard worship perspective. See id. 121 S.Ct. 2093 in this case as merely a “viewpoint from (“What matters for purposes Free which ideas are conveyed.” Id. To the Speech is that Clause canwe see logical no contrary, pure religious worship held a difference in kind between the invocation purpose itself, unto and it exceeded the Christianity the Club and the invoca- boundaries aof forum limited ato discus- tion teamwork, loyalty, patriotism by sion of the moral and character develop- other associations to provide a foundation ment of children. See id. at 138 n. lessons.”). for their again, Once the focus S.Ct. 2093.12 was on whether some other group had permitted

been to engage in the same kind Turning to Faith Center’s argu of speech activity from a perspective other ment, we disagree that prohibiting reli than prohibited one. gious worship the Antioch Li Good News Club is notable for two other brary meeting room constitutes viewpoint First, reasons. the Court concluded that test, discrimination. The as we have artic even activities that are “quintessentially ulated, is whether has ex religious” can be used to further pur a perspective cluded on matter pose of moral instruction and character permitted otherwise in the forum. To de development. In Good Neivs termine whether “religious worship” is a taught Club morality and character devel perspective an allowable topic, we are opment by singing songs, relating stories guided by the approach Court’s in Good Bible, from the verses, reciting memoriz News Club and draw reference from ing Scripture, and prayer. See id. at events and activities that have been hosted 121 S.Ct. 2093. For the Court’s purposes at the Antioch meeting room forum. See however, only “[t]he apparent difference 108, 121 id. at S.Ct. 2093. between the activity of Lamb’s Chapel and the activities of above, As Good noted the County Club is acknowl- that the Club chooses edged to teach moral that Faith les Center’s morning activi- sons from a Christian perspective ties on through May permissible were live storytelling and prayer, under whereas the County’s current policy. Ac- Chapel Lamb’s taught lessons through cording to Faith Center’s flyer describing 110, 121 films.” Id. at S.Ct. 2093. day’s events, the morning “Wordshop” It should be noted that gious Justice Scalia's worship, event, any and that concurrence embraced position that the forum could not restrict majority was not willing to take. Justice Sca- taking place from there. See id. at argued lia distinction could not be 121 S.Ct. 2093. made between Club’s activities and reli- “ permits County, example, meet- Making ‘The of an Interces- consisted of Democratic every ings by the East Contra Costa sor,’ Prayer an Endtime call Democratic fervent, people Club to “let learn about Believer, pray and how to effectu- candidates and issues”—in essence dis- Prayers al hears and answers.” God from the political cuss issues social words, morning workshop other Party. A of the Democratic standpoint topic communication and devoted Anonymous recovery meeting Narcotics effectively with one’s how to communicate experiences life sharing personal includes activities Although God. Faith Center’s sharing similar to testimonials one’s reli- “quintessentially have included personal experiences God and faith. with gious” prayer, such as a call to campaign A letter-writing Sierra that such Good News Club makes clear communi- Club involves the discussion and communicating an furtherance political cation of matters social and religious point from of view cannot idea to its members. Discussions interest be for exclusion. grounds literary the Bible that “communication” is a It is clear clearly in the permissible texts are also Anti- permissible topic of discussion Thus, to Faith Center library. exclude Library meeting och room. If the Antioch topics appropriate that are discussing Speech club to use the applied and Debate prohibited of a reli- forum because oratory art of meeting room to discuss the gious perspective would constitute view- communication of secular and effective in violation of the point discrimination likely re- subjects, the would First Amendment. It

ject proposal. such would therefore Faith Center’s afternoon activities on discrimination 29th, however, May not of did consist reli- on perspective to exclude Faith Center’s gious viewpoint activities. Faith Center of of communication because occupied the Antioch expressly forum religious content of Faith in “praise worship” doing and and so Faith speech. li- Center exceeded the boundaries of the brary’s court limited forum. district that occur at Faith Cen- Other activities understood, not and Faith Center did dis- permissible meetings ter’s are also in the pute, the contention that the afternoon meeting ex- Antioch room. Faith Center pure religious activities constituted wor- plains that participants sometimes Rather, Faith ship services. Center ar- other “engage discussing in Bible and gued before the district court that reli- teaching, pray- as] books well [as distinguished gious worship could not be testimonies, sharing ing, singing, sharing religious speech, from the rest of its and meals, and discussing political and social for the court to make such a distinction convey a reli- issues.” These activities constitutionally impermissible. gious subjects that perspective on however, religious worship, Li- is not a permitted have been the Antioch Pure room, conveys brary meeting activity such as a discussion secular Bible, viewpoint permissible subject on polit- discussions social and otherwise issues, every topic sharing experiences.13 and matter. For of discus- ical life library meeting commenting permissibility Although the frain from on regulations, implementing drinking singing, eating, refers to rules and and in the Antioch regulations part not those rules and were Library meeting room. the district court We therefore re- record. Club, Faith in—the engages public sion that forum. Good Bible, communication, 4, 121 political at 112 n. social S.Ct. 2093.14 issues, experiences religious and non- life — Faith Center’s reliance on the Second can perspectives exist. same Circuit’s decision in Bronx Household of develop- moral said for and character misplaced. Faith Bronx Household Club, rearing ment in Good News child Faith, an evangelical Christian church Chapel, topic Lamb’s and the sought access to a building school in Rosenberger. itself Sunday meetings that consisted of hand,

Religious worship, on the other singing hymns, Christian prayer, Biblical not a viewpoint category communion, but a of discus- preaching teaching, which many sion within different religious fellowship. social 331 F.3d at 347. The had, perspectives that, abound. If the court concluded like Good News example, from its reli- meetings excluded forum the proposed did not “constitute Mennonites, gious worship only religious worship, separate apart any then we would conclude from teaching of moral Id. values.” had engaged viewpoint unlawful dis- 354. The guided court was by Justice against religion. crimination description Mennonite Souter’s of the Club’s activities But a blanket exclusion of wor- in Good News Club.15Justice char- Souter ship services from the forum is one based acterized the meetings Club’s “an evan- of speech. gelical the content worship,” service of combining teaching worship.” with “elements of Center contends because U.S. at 138 n. 121 S.Ct. 2093. The court religious worship is an service “education found that the proposed meetings in Bronx al, community cultural and related” activi materially Household Faith were indis- ty, excluding religious worship services tinguishable from Good News Club’s activ- community- forum when other ities and therefore Good News Club con- related activities are permitted amounts to trolled outcome of its case. reli Although discrimination. . gious worship important is an inapposite institution Bronx Household Faith is any community, disagree anything we simply because here we do have “ele- remotely community-related must there of worship” ments that secular further granted fore be Li goals. access to Antioch Faith Center’s afternoon activities brary meeting 29, 2004, room. That argument May by was on as described Faith rejected itself, in Good Club entirely praise News when Center consisted distinguished Court religious the Club’s activities and worship. The Second Circuit religious worship” from “mere implic “ruling and clear that made confined [was] itly acknowledged religious worship that to the district court’s finding exceeded the boundaries of the limited ... simply [church’s] activities [were] imagine part development It is difficult to moreover the moral and character 14. religious worship here, truly could ever be divorced pure religious worship of children. As develop- from moral instruction or character tenuously was too associated to the forum's majority is ment. That not what the in Good purpose. News meant wrote: con- Club when it "we clude Club's activities do not consti- accepted majority 15. court noted The religious worship, tute mere divorced from Justice Souter’s recitation of the activi- Club's any teaching of moral values.” See id. That ties as accurate. Good proper statement must be taken in its context. S.Ct. U.S. at n. 2093. opened The defendant district forum only it could any forum and therefore worship, public from teach- religious divorced a discriminatory from “justify exclusion per- values or other activities ing of moral con- religious on the public forum based F.3d at in the forum.” 331 mitted by speech” intended group’s tent of the is also Faith distin- Bronx Household of necessary regulation that its showing of the nature of the guishable because and compelling state interest There, to serve sought the church to rent forum. Id. to achieve that end. Sunday narrowly drawn meet- empty school rooms University 269. The activity. away The ings from other under room, regulation did not survive on the oth- Library meeting Antioch heightened judicial scrutiny. hand, Library Branch in the Antioch er is only during Library’s is available In that was not central dicta library pa- when operating hours other Powell holding, discussed Court’s Justice of reli- present. propriety trons dissent’s difficulty he had with the by the differ- gious worship services varies that a distinction should contention of each forum.16 ent circumstances worship and other religious made between religious speech: kinds

B. First, fails establish the dissent argu- Faith second We turn to intelligible has con- that the distinction ment, religious ser- prohibition that the “sing- There is no indication when tent. Antioch vices forum scripture, and teach- hymns, reading ing religious worship discrimination because to be principles,” cease ing biblical permis- distinguished cannot be ap- reading” “singing, teaching, —all According religious speech. forms of sible their parently “speech,” despite forms of Center, Faith to enforce such distinc- become religious matter —and tion, entangle government with would worship. unprotected by in manner the Es- forbidden Second, an even if the distinction drew tablishment Clause. line, highly principled arguably judi- that it lie within the doubtful would relies on Widmar Vin- Widmar, Merely administer. competence cial support. cent for require the distinction would access to state draw organization sought student ultimately courts— university university facilities —and into of words University inquire significance made its and discussion. practices to different regis- for activities facilities available faiths, in varying circumstances groups prohibited the tered student but inquiries faith. would University purposes “for the same Such buildings use of inevitably entangle the State teaching.” tend religious worship 265, religion in a manner forbidden with 454 U.S. at 102 S.Ct. 269. Court had created a our cases. University held that Lafayette Indeed, America v. unique Concerned Women factual circumstances 16. 32, (5th Cir.1989), the County, 33 883 F.2d County’s limited forum set this case plaintiffs sought an rath- primarily upon by access to auditorium apart relied from the cases public library. a er a at than Faith to demonstrate existence Center Conrad, Promotions, See, Ltd. v. e.g., Southeastern Good discrimination. Cf. 420 U.S. 546, 1239, 2093; 555, 103, L.Ed.2d 95 S.Ct. 43 S.Ct. 533 U.S. at 121 News 386, pub- (1975) (municipal auditorium was 448 Chapel, 508 U.S. at 113 S.Ct. Lamb’s Faith, 2141; design it con- lic whose size and made 331 at forum Bronx Household F.3d * conduct). 345; expressive at Campbell, 2003 21783317 1. In ducive WL

1213 (internal 6, (inter- in a religion-neutral Id. at 269 n. 102 269 vices S.Ct. matter.” omitted). omitted)). citations nal citation argu- Center echoes same also recognized We have that school offi ments. Faith Center asks how the Coun- may cials draw a distinction between dif matter, ty, can or courts draw kinds private religious speech ferent in permissible components of line between preserve to order purpose intended religious speech singing, sharing testimo- — Hills, public a limited forum. the court nials, in context dis- prayer even held that a school district’s to dis cussing how communicate with God— camp tribute summer brochures to stu impermissible religious worship. Fur- dents could not exclude a brochure that ther, Faith argues govern- advertised for a summer camp. competent ment and courts are not F.3d 1051. noted, See 329 The court identify activity certain is expressive when however, that the school district “is not religious worship. dis- To enforce such a that, obligated to in distribute material foster an govern- tinction would excessive event, guise announcing an contains di religion. ment entanglement with See rect to religious observance; exhortations Kurtzman, 602, 612-13, Lemon v. 403 U.S. purpose this exceeds the forum (1971). 2105, 29 745 91 L.Ed.2d District created.” Id. at 1053. We have As Scalia Justice noted Good elsewhere the principle endorsed that the Club, however, drawn a differ- “[w]e have government distinguish can and exclude religious speech ent distinction —between proselytizing religious speech preserve speech generally about —but See, purpose for a limited forum. e.g., only regard with to restrictions the State 1074, v. Jacoby, Prince 303 F.3d 1086-87 place speech, must on its own per- where (9th Cir.2002) (finding that while student monitoring unproblematic.” vasive state is religious group given equal must be access 3,n. 533 U.S. at 126 121 S.Ct. 2093. School public system to school’s address to an routinely officials draw such distinctions activities, group may nounce where of religion schools from doing “pray barred so to prosely be taught speech but tize”); Lassonde v. Pleasanton Unified government speaker. barred from the See Dist., (9th Cir.2003) Sch. 320 F.3d 980 Indep. Doe, Fe Sch. Dist. v. 530 Santa (permitting of religious discussion beliefs L.Ed.2d high graduation speech school but (2000); Capistrano v. Peloza Sch. Unified “proselytizing”); v. prohibiting Cole Oro Dist., (1994). F.3d The distinction Dist., High ville Union Sch. 228 F.3d limit certain kinds of (9th Cir.2000) (upholding school dis also employees made for trict’s refusal to allow to give valedictorian workplace. Berry Dep’t Soc. “sectarian, proselytizing speech” grad Serv., (9th Cir.2006) 447 F.3d ceremonies).17 uation (“Permitting appellants evangelize while providing jeop- services to case clients would This differs the aforemen- ability provide ardize the County may state’s ser- cases in that tioned States, point United as amicus curiae in from its limited fora. The re- Center, support argues mains, however, of Faith that these government capa- that the distinguishable they school cases because identifying proselytizing religious ble of religious speech cap- involve broadcast to a speech aspects speech simply that has agree tive We the audience. that religious worship. may justified excluding be proselytizing in dis- Because the speech from the An- adherents themselves. proselytizing exclude County convey enjoining to in the speech helps if that trict court erred tioch forum library meeting room appropri- about an otherwise from its applying a topic. example, For Faith Center’s religious ate Faith policy to exclude Center’s a “Wordshop” includes call to morning services, injunction worship we reverse properly that be prayer in part. — Nonethe- proselytizing. characterized however, acknowledged County, The less, activity this also proselytizing because worship on prohibition religious that its about communica- the discussion furthers to Faith applied services could not be bar higher au- communicating with a tion and engaging from in secular activities Center thority, grounds for exclusion. it cannot be In- religious viewpoint. express that a The to be drawn here thus distinction deed, County the district informed reli- challenging much between more —one morning that Faith court Center’s virtually worship all other forms gious “wordshop” May permis- on 2004 was a religious speech' gov- one that —-and was activity though purpose its sible even competent are not ernment and courts pray to or communi- people teach how however, distinction, That make. end, To presence. with a divine cate already by itself made Faith Center when County invited the district court worship separated religious

it its afternoon injunction that Faith craft an ensured Cen- morning Faith service from activities. right conduct in the ter’s activities occupied it the Antioch Center admits that a meeting express room that May in the forum afternoon County to ex- viewpoint, and allowed the “praise worship.” expressly worship note clude services. We identify County may not able to wheth- be proposals that the offered several engaged pure reli- er Faith Center has injunction crafting preliminary worship, but Faith can and gious objectives balancing these would achieve did.18 govern- pitfalls and avoid the excessive court, entanglement.19 The district ment VI however, not consider the did prohibiting We therefore conclude that scope in- suggestion regarding the religious worship junction. vacate and re- We therefore meeting per- from Antioch room is can an mand so the district court craft category of a missible exclusion injunction soliciting the appropriate after that is be- preserve purpose meant parties. views of the Religious hind limited forum. part, VACATED REVERSED distinguished services can be worship part, pro- and REMANDED for further religious speech other forms of specter preliminary injunction hearing, At the dissent raises the of inevitable 19. meeting appli- County proposed that its government entanglement li- when be altered to include a certification cation applicant brarian encounters some future applicant room will who than candid about is less used for services. The Op. activities. See Dissent 1221- would allow elaborated that certification speculate possi- those 22. We need not about honesty applicant rely while on the evidentiary On the record bilities. limited avoiding any entanglement. potential issues of light procedural posture of this express opinion of such a We no merits case, only that us. we decide which is before proposal.

1215 notes, eeedings.20 First Amendment speech categorically different than secular KARLTON, Judge, Senior District analysis and is to under the Concurring: Establishment Free and Exercise Clause in Judge regard I concur Paez’s well-reasoned jurisprudence without of free sorry which opinion, speech. reflects the state of I express my law. write separately the Those, myself, like who advocate adher- dismay sorry at that state. ence the of the strictures Establishment simple This should be a case it asks Clause, do of hostility so not out towards forced county

whether can be to subsi- religion. See McCollum v. Board Edu- prayer organization’s dize meet- cation, 203, 211-12, 461, 333 U.S. 68 S.Ct. by requiring it ings provide Vitale, (1948); Engel L.Ed. 649 92 v. 370 place with a organization worship. free 421, 433-34, 1261, U.S. 82 S.Ct. 8 L.Ed.2d reading A First quick Amendment (1962). Rather, 601 we are motivated to the Constitution of the United States recognition of the passions deeply- Judge answer question. should Paez’s engender, held religious views and the ser- tracks the opinion cases reaches its marrying ious threat of those passions to result because the law has so laborious government power. Engel, 370 U.S. reaching elaborated conclu- (“Another 431-32, 82 1261 purpose S.Ct. requires opinion sion the effort the demon- upon Establishment Clause rested an As I explain, strates. now elaboration awareness of the historical fact that gov- on a premised accept plain failure to ernmentally religions established and reli- meaning of the First Amendment. hand.”). persecutions in gious go hand v. Both Good News Club Cen. Milford merely That threat is not historic. One Sch., 533 121 S.Ct. only need look about world to see that (2001) Chapel L.Ed.2d and Lambs in danger play. scenario is the same Dist., Free Center Moriches Union Sch. in whether is Northern Ireland where 508 U.S. L.Ed.2d kill Catholics and each Protestants (1993), High turn on pur- Court’s governmental an effort to establish power, ported inability distinguish between a Israel, where Jews Muslims do the distinction, speech. sermon and a That same, Shi’a Iraq, where and Sunni are however, is compelled by First Amend- engaged slaughter, or in similar Sudan ment, which different stan- establishes murder where Muslims Christians. See relative government dards action con- Abington v. Schempp, School District of cerning speech government action 203, 219, 374 U.S. concerning religion. purported inabil- (1963). Nor only L.Ed.2d 844 is that the ity High Court to adhere to the dis- danger. tinction embodied in First Amendment plays government it to Where a role in the leads conclude that the issues ten- cases, bar, society, pluralist dered such the one at life of a there is implicate viewpoint danger will favor the discrimination under majority free provisions the First and seek to control or They minority Amendment. do not. simply prohibit religions. As the the rites of conclusions, light we our services from need necessary address whether has a rooms to avoid a violation the Establish- compelling excluding religious ment interest in Clause. 1216 “Prayer, is Praise public property hold on Espirita Gonzales v. O Centro Benefi — Public, -, Purpose to Open Vegetal, Worship [the] Do U.S. and cente Uniao (2006); Encourage 1211, 163 L.Ed.2d 1017 to Teach and Salvation

126 S.Ct. thru Community].” Inc. v. Aye, Up the Lukumi Babalu and Build Jesus Christ Church of Hialeah, 520, inability 113 S.Ct. conclude that City 508 U.S. assert an to To of (1993); sense, 2217, Employ 472 in is religious every 124 L.Ed.2d is purpose Smith, 494 110 gives Division v. U.S. that sophistry ment in kind of engage the (1990). Such L.Ed.2d 876 name. It the the law bad only and social really can lead to alienation favor has majority Supreme Court unrest. ability distinguish about the be- doubt secular practice tween church The wall of between separation so, they only If need leave their speech. thought and state that Thomas Jefferson chambers, in the street and ask the go out raised, way in no First Amendment in the in- they meet whether person first reli- anyone’s of prejudices practice is char- case the conduct stant Ed., 330 U.S. gion. Everson v. Board of simply It is untenable to insist that acter. (1947). 15-16, 504, 91 L.Ed. 711 67 S.Ct. prayer there is no difference between Instead, of salutary purpose it serves the phrase, e.g. political speech. To coin insulating society civil from the excesses of enlighten- only pray can for court’s one id. at 67 S.Ct. the zealous. See ment. (J. dissenting). Rutledge, The Good Chapel majorities’ dis- and Lamb’s

Club I Jefferson While believe Thomas model premised dain of the Jefferson debate, has the better end enhance the belief that values opinion I concur in the belief is irrelevant. legal endanger society. than rather because, my it is judge, as a subordinate issue, however, It asks is different. duty precedent to adhere to reli- distinguish one can between whether misguid- “no how Supreme Court matter categorical way, in a and the gious speech Davis, 370, 374, ed.” Hutto v. may be yes. course there answer Of (1982). 703, 70 L.Ed.2d 556 devel- require cases. cases close Such TALLMAN, dissenting: Judge, de- Circuit

opment jurisprudence delicate signed protect Establishment imper- “Religious Use” exclusion is insulating religious practice Clause while discrimination missible because government intrusion. (the “County”) Costa Contra any simply beyond opened public meeting cavil event it is Library community present does a Antioch order that the instant case educational, cul- question. encourage use] been com- “to Appellees [its close have community meetings, related acknowledging tural pletely candid activities.”1 Notwithstand- meetings they proposed programs purpose policy Costa policy amended It is Contra 1. The at issue has twice been encourage pending, Library litigation tliis the use while Glover, educational, Evangelistic Church Ministries cultural and rooms 23, 2005), (N.D.Cal. May programs, community meetings, WL at *1 related and, Supervisors modified the Board and activities. California, County, on De- of Contra Costa 14, 2004, part: reads relevant cember now RELIGIOUS USE Library meeting not be used for Library rooms shall Contra Costa Policy Meeting in Libraries services. Use Rooms School, ap- broad and ing the inclusive Central 533 U.S. Milford 2093, 150 (2001), unlawfully S.Ct. L.Ed.2d 151 it proved, County the has exclud- when argues that religious worship service or community members of the ed certain from parsed religious be engaging square- in that fall from activities religious worship catego is a policy’s scope by the ly examining within —that ry wholly separate general religious way viewpoints an applicant’s the are ex- speech. 130, See id. 121 S.Ct. 2093 pressed. organizations Political like the (Stevens, J., dissenting). According the Party local Democratic are admitted. Re- County, allowing religious in its ligious groups are not. library meeting rooms would “start[ ] arbitrary in draws an line slippery whereby courts down a slope all sand, arguing has the right that it public will buildings into converted religious what decide constitutes a service houses of for worship the conduct reli of failing specific guidelines while to set forth gious 139, services.” Id. at 121 2093 S.Ct. defining the term. It contends that (Souter, J., dissenting). the First Establishment Clause of Amend- assertion, As its support requires County ment officials to exclude cases, cites two Supreme Court a Second who wish to engage worship those be- case, Circuit an and Eastern of District library meeting hind the closed doors of its case, Louisiana none of which address My colleagues majority rooms. in the ac- religious whether worship mere should or cept view of skewed the First parsed could be from other types of reli a upholding Amendment which gious speech. Good News 533 produces face and applied on its 4, 121 U.S. at 112 n. (concluding S.Ct. 2093 very entanglement County ostensibly that a religious club’s activities not “[did] avoid, doing so seeks the court religious constitute worship, mere divorced a conflict with creates the Second Circuit values,” from any of moral teaching Supreme precedent. and contradicts Court parsing therefore issue I respectfully dissent. reached); Chapel v. Mo Lamb’s Center Dist., 384, riches Union Free Sch. 508 U.S. I 2141, 388 n. 352 L.Ed.2d “[Rjeligious discussion ... worship and (1993) (noting petitioner church pro are forms and association did not a school challenge district’s denial tected the First Amendment.” Wid services, to use a high Sunday school Vincent, 263, 269, v. mar 102 so the that denial be validity of was not (1981). 269, 70 L.Ed.2d “The court); fore the Bronx Household Constitution forbids a to enforce cer State York, v. City Board Educ. New tain from forum generally (2d Cir.2003) exclusions (declining 331 F.3d if open public, even was not is a worship address whether required to create the forum the first type activity separate distinct from oth Id. at place.” 102 S.Ct. 269. Both er religious speech); Campbell St. activities, agree parties Bd., in Tammany Parish Sch. 2003 WL cluding 2003) worship, speech protected by (E.D.La. July at *9 However, the First Amendment. (declining to reach issue of whether County adopts religious worship” the views Justice Ste “mere preclud could be forum). vens, dissenting in ed from a particular Good Club v. (Contra Supervisors).

RESOLUTION Bd. Costa NO.2004/655 *1-3, summary agrees meetings (granting its Faith Center my col- religious worship, judgment contain group wished fact find comfort in the that Faith leagues hours, opened to use school after worship explicitly listed activities forum, quintessentially as a limited But flyers meeting. for the words on activities). Nor is it correct to flyer disposition make no difference say agreed that Faith Center religious group of this case. The next ambiguous, under activities fall unde- activities, worship wishing intermingle to fined category acknowledged Su- consequences as to the of such admonished mere preme religious worship.2 as Court advertising, may explicit not so about be itinerary, may simply call its or A worship religious “proselytizing,” activities acceptable an form of under in Although the Second Circuit Bronx Maj. according Op. to court. question Household declined answer Faith Regardless of what 1213. Center parsed be worship whether print flyers, or chooses to on its what religious speech, from the court was other activities, call its can- worship chooses to judiciary any as to how or concerned all logically parsed not from validly official make the could in religious expression way forms of (“Would distinction. See 331 at 355 F.3d County intends. identify we be a form of able cases, such as compared to similar When worship teaching that is divorced from the Campbell, Bronx Household and where values?”). of moral The court noted the private religious conducted reli- groups Supreme dichotomy suggested by the gious in government-owned services fo- Court in Good News Club between “mere” rum, Faith cannot proper- Center’s service religious worship on hand the one ly as religious worship, be described “mere is not from “worship that divorced any teaching from of moral val- divorced moral on the teaching of values other.” Household, Bronx 331 F.3d at ues.” See “Further,” asked, Id. the Second Circuit preliminary in- (affirming state, imposing “how would without junction allowing religious group equal religion, own on which views define values after access school classrooms morally are acceptable and which not?” the group’s hours where govern- Id. point eschewing This is the separated could not be from teaching values); decision-making ment Campbell, moral 2003 WL based on view- Club, colleagues point quote My during 2. one Good at 112 n. News injunction hearing preliminary in which Faith Not even the district court under seemingly agreed Center its activities agreement comporting stood Faith worship.” constitute "mere with Good News Club’s definition "mere religious worship," correctly as it determined [cjourt: your What is bottom line? Is injunc granting preliminary in its order [cjourt your line bottom then the cannot issue "presents tion this case a factual situa any injunction pre- effect which has the presented tion similar to factual situations you cluding, as call it or the call would courts Chapel, the Good Lamb’s Bronx it, mere in the rooms? Faith, cases,” Campbell Household right, Center]: for Faith That’s [Counsel which each held that the activities issue your honor. religious worship were not devoid of discus agreement This does not bind Faith Cen permissible sion otherwise secular sub Supreme concept on activities to the Court's ter's Church, jects. religious worship, 2005 WL divorced of "mere teaching any values” as at *7. moral noted point at issue the First Amendment before at public students schools and Clause arena. speech by Establishment government employees in the work-place. However, only do the cit- Here, heavily, the district court relied ed cases evangelical speech involve to a so, properly and Bronx Widmar audience, captive they but are also instanc- Household for its conclusion that es where even proselytizing may be ex- worship may parsed not be from other cluded. No amount of general religious Church, religious speech. Faith Center speech is allowed in public schools gov- 2005 WL at *5. at- ernment workplaces during the business tempts distinguish arguing Widmar day if it evangelical in design. Speech that the Supreme Court’s comments about permissible about in such limit- religious worship apply only “open” fo- ed fora purpose where the of the forum is rums, such as the forum Widmar. very specific is for academic learn- However, analysis the Widmar Court’s —school ing and the workplace is for work. “religious worship” was not based on the issue, characteristics of the forum at but Library The Antioch opened its meeting difficulty the the and the room for a much purpose. broader My courts would have in drawing the line be- colleagues concede evangelical speech religious worship tween religious and other permissible is under the “Religious Use” speech: exclusion if it conveys on an

There is no “singing indication when permissible topic, otherwise and acknowl- hymns, reading scripture, teaching edge that the distinction County the must biblical ... principles” cease to be “sing- draw here is more any subtle than in ing, teaching, and reading”- appar- opinion the cases the Maj. cites. Op. at —all ently “speech,” despite forms their 1213. But that is as far opinion as the religious subject matter —and become goes in analysis. this It attempt does not unprotected “worship.” to answer the insoluble riddle of how the [Ejven if argu- County the distinction drew an parse religious could speech which ably line, principled highly conveys doubtful a viewpoint on an per- otherwise that it judicial would lie within topic the com- missible religious with mere petence to Merely administer. impermissible to draw that is speech according to the Instead, distinction would require gov- the court. [the it claims that Faith ultimately ernment] the courts—to Center has solved the riddle for us since —and inquire significance into the of words Faith specifically Center calls its activities practices to religious different “worship.” reasoning, Under this if Faith faiths, varying and in by says doing circumstances Center what it is worship, the same faith. inquiries Such then County would the need not make the dis- inevitably tend to entangle [govern- tinction. ment] with in a manner forbid- But analysis this flawed blithely ignores den our cases. other similarly religious groups situated Widmar, 454 U.S. at 269 n. that may not make such a nice admission

269(citations omitted). County in their applications to use The majority opinion here cites several the room. granted While district court Supreme cases where the Court has preliminary injunction drawn based on Faith a distinction between general religious applied” Center’s “as challenge poli- to the speech speech religion. Maj. cy, about also brought facial chal- Op. at 1213. These speech cases involve lenge policy. Ignoring prelimi- religious groups County because the mandate that the

nary injunction’s any County will cause it to violate meeting room to “sim- claims open who entity” may are the ones individual or Clause ilarly situated Establishment allowing speech what constitutes a neat literal shorthand decide provide would pars- County I bypass policy. the need doubt the my colleagues violation of worship from in mind when it created its ing religious had such a rule However, instance. speech specific in this The truth is “Religious Use” exclusion. reasoning ignores plain majority’s nor Faith Center that neither the County official must reality that some religious worship from validly parse can no articulated standard make the call with broad religious speech under of what consti- a determination guide policy. and undefined policy. under the “religious services” tutes strange rule that

Announcing “Reli- B worship services can be distin- gious parse Any attempt by the forms of guished from other worship from other themselves,” Maj. adherents the inherent Estab trigger would system whereby the creates a Op. problems it entanglement lishment Clause constitutes itself decides what applicant Souter, in his dis seeks to avoid. Justice policy, worship. Under de senting opinion Good what is and will still have determine in religious activities Good scribed worship in instances religious what is not of wor including News as elements Club identify in a does not such group where “challenge” that prayer, a ship, such County is not off activity, and the detail to “saved” children ask God invited it group say if a does will the hook even that asked strength, and an “invitation” religious worship. in Creative engage children to receive Jesus Christ “unsaved” reality avoid the that word-play cannot at 137- as their Savior from sin. 533 U.S. Faith worship intangible, is and even what J., (Souter, dissenting). 121 S.Ct. 2093 religious is wor- Center itself determines agreed majority in News Club The Good ship may worship not be to another. See of the ele with Justice Souter’s recitation Household, F.3d at 354-55 Bronx issue, activities at religious ments of the to upon basis which (finding principled “no these activities do not but decided that activities”). distinguish [such] Id. at religious worship. mere constitute Faith County chooses to exclude 4, 121 112 n. S.Ct. 2093.3 allowing that because believes religious Faith service consists library meeting Center’s religious worship within its sermon, consistent prayer, praise, violates the Establishment Clause. in type worship with the Good patrons per- would then It contends in- worship activities particular to Club. ceive the endorse discussion of moral character County’s position, our clude religion. Given the . subjects within the other secular newly created rule is nonsensical court’s —well policy such as this Although Club ad- under broad Widmar and Good News dicta, in it is essential note suggests dress this issue Court is clear- The caselaw one. Supreme Court that there is no such extensive moving away towards ly from that notion and religious proposition wor- dicta for the religious worship principle in this religious ship may parsed from other distinguished from other context cannot be private group con- in the context of religious speech. ducting meetings places open to in otherwise and not policy’s scope, religious mere wor- to enforce religious its exclusion of wor- Widmar, ship, yet adequately which has to be de- ship.” 272 n. by any fined court. order divorce (quotation S.Ct. 269 marks and citation omitted). prohibited services from other “would need to permissible activities to be con- determine which words and activities fall room, meeting ducted within worship” and ... “[t]his would need to define what constitutes prove could an impossible age task an religious worship, mere as well many as how where and various beliefs meet the many topics required secular to be constitutional religion.” definition of Id. contemplated omitted). discussed or before mere re- (quotation marks and citation ligious worship becomes something more. The County validly cannot parse religious I wish the the best of luck that worship from other religious speech in try- drafting endeavor. ing apply policy this without engaging in very trying action it is prevent— Scalia, in a concurring opinion Justice entangling in religion itself in a manner Club, ability Good News examined our that violates the First Amendment. distinguish religious worship from other religious speech. He concluded C distinction between and other reli gious speech intelligible has “no content” if Even we were to ignore the inherent

and no “relevance” to the constitutional entanglement cause, the exclusion would issue. Good News 533 U.S. at the exclusionary portion of (Scalia, J., concurring) S.Ct. 2093 facially nonetheless invalid. While Widmar, (quoting 454 U.S. at 269 n. 102 County excludes 269). Justice Scalia noted that the rooms, it does not define difficulty proven of distinction “religious services.” How can a County inability agree of the Justices to on what validly librarian parse religious worship category of religious speech was at issue religious speech allowable when the in Good News Club. Id. at 121 librarian does not have the proper guide- (Scalia, J., S.Ct. 2093 concurring). He by may lines which he or she recognize the then added that “applying the distinction offending conduct?4 require would monitoring priyate, state of The opinion never addresses what the religious speech with a degree perva of County would do if another group were to siveness that we previously have un found conduct worship services without delineat- acceptable.” Id. at 121 S.Ct. 2093 ing flyer. its activities on a Are we then to (Scalia, J., concurring). accept that a librarian will know many ways There are as to conduct when he she sees it? Are we now to “religious services” as religions there are declare that librarians are world, in the not accounting experts for different in theology religion? and world religion. sects the same Supreme Perhaps they The might consult the books on government Court has said that the “would the shelves of their libraries. Or are we greater entanglement risk by attempting only excluding traditional Christian wor- Supervisors try policy.” The Board of did not even RESOLUTION No NO.2004/655. "religious to define the term brought services” such rules have ever been to our Instead, policy it enacted litigation resolution. attention in this and we must as- provided, pro- "[t]he Librarian shall sume their absence from the record is mulgate implementation oversight by County rules of this not an counsel. content County that the exclusion is most familiar ship because that is what is County? my Costa Because viewpoint to the officials Contra neutral. based us, power before Under creat- conclude the has colleagues the definition of a service decide forum,5 opinion public ed a limited lap government in the squarely lies exclusion is holds that the content-based officials, prob- the crux of the permissible. lem. argument on its Based from other Separating religious worship from other reli- worship may parsed inevitably to state religious speech leads that the contends gious speech, that would not entanglement category speech policy excludes a whole private religious should otherwise exist content, apparently believ- with a distinct allowed the freedom to conduct groups be of the religious worship speaks that all ing goal activities consistent with subject par- contains no same matter and time, given place, reasonable policy, viewpoint permissible on otherwise ticular imposed also on all

manner restrictions disagree. I topics. secular groups wishing to use the reli- may include discussion of issue here Widmar, library meeting room. See variety viewpoints on a of otherwise gious (noting that the 102 S.Ct. 269 this property subjects, to includible and to exclude government’s opening of its various forms of “establish classic discrimi- speech would be time, place, regula- and manner reasonable “Viewpoint discrimination is a nation. tions”). Religious worship expres- is the in which form of content discrimination beliefs, convictions, viewpoints, sion of not mat- government targets ‘the morality, are as practice and its means ter, particular speakers but views taken ” people up diverse as the who make this Rosary subject.’ Children official has the nation. No (9th Phoenix, City F.3d ability the constitution of reli- to decide Cir.1998) Rector (quoting Rosenberger v. gious worship. Any attempt would inevi- Va., 515 U.S. and Visitors Univ. Bill of tably entangle the official 2510, 132 L.Ed.2d 700 Rights. (1995)). Although speaker may

II be excluded if nonpublic from a forum he wishes majority opinion only ignores encompassed topic within address problems entanglement the obvious state ... if he is purpose of the forum or it worship presents, the exclusion of but speakers not a member of the class of religious holds that services cannot also especial for whose benefit the forum was speech expresses viewpoints include which ..., government violates the created matter, subject a con- on otherwise secular it denies access First Amendment when contrary weight Supreme of clusion solely authority. My speaker suppress point to a agrees Court court with opened organizations agree County opened for of 5. I that the when was do not character,” forum, "civic, yet allowing cultural or educational limited thus content- political groups. at religious or Id. This case is similar to excluded based discrimination. However, America, Lafay- I believe that the v. 33-34. because Concerned Women Inc. (5th Cir.1989), "Religious view- County, Use” exclusion constitutes ette 883 F.2d 32 discrimination, point which is forbidden in all that a which the Fifth Circuit held forums, decline to address this issue further. designated public was a forum I auditorium

1223 topic on an otherwise as a whole of espouses of he that is excluda- view subject. ble under content-based includible discrimination. Chapel, 508 113 S.Ct. Lamb’s U.S. First, stated, previously as the notion (quoting Legal 2141 v. NAACP Cornelius religious worship may parsed be from Fund, Inc., 788, 806, & Educ. U.S. Def. religious other speech ignores the weight (1985)) 105 S.Ct. 87 L.Ed.2d Supreme authority Court against it. (alterations omitted). Second, § supra See I. if County even Supreme Court Good News Club were parse religious somehow able to wor- ... saw “no reason to treat use of ship from religious speech, other and all than a something as view- religious worship is treated alike under the merely point any evangelical because of exclusion, County explain does not why conveys.” message it 533 U.S. at n. religious services cannot include First Amendment “[T]he S.Ct. viewpoints permissible subjects. on regulate speech forbids the Chapel, Lamb’s 508 U.S. ways viewpoints favor some or 2141 (rejecting the Second Circuit’s deter- expense (quot- ideas at the of others.” Id. mination that a is viewpoint neutral ing City Angeles Los Council Tax- religions because all all uses for reli- Vincent, 789, 804, payers alike). gious purposes are treated (1984)). 80 L.Ed.2d 772 Com- Center’s service consists religious worship mon sense dictates that singing songs, engaging prayer, can exploration topics include of secular community sermons about and moral char- view, a religious point as Faith viewpoint. acter from a Biblical Commu- meeting demonstrates. Enforc- nity and moral character are secular two ing viewpoint the exclusion is therefore subjects that would be includable under discrimination and Faith has made policy’s scope. broad Yet the showing probable a clear success my colleagues assert that Faith Cen- merits of its claim. ter’s cannot express viewpoint way of the are communicat- because ideas A through prayer and sermon. ed— County argues that the exclusion “is subject to a type example directed distinct mat- As an of what it deems separate category speech, ter and not a the distinction between matter discrimination, particular religious on an ‘viewpoint’ viewpoint other- ar permissible subject.” represents gues- wise It that “true discrimination prohibition “permissible County permitted ... if content-based occur would . which, example, restrictions” “exclude Christian or Buddhist topic, politics based on such as or but disallowed Muslim Jewish services.” However,

religion, regardless particular stand must therefore as services, speaker topic.” regardless takes on the DiLoreto sume all Educ., denomination, Downey Sch. Dist. Bd. do not communicate ideas Unified (9th Cir.1999). topics permissible 196 F.3d 969 The on that are under the County’s argument policy, is based on the errone- such as moral character. The “ex just that ... religious ous belief service clusion of several views as parsed religious speech, from other and offensive to the First Amendment as ex “religious category only Rosenberger, that services” is a one.” clusion itself, 831, 115 qualifies unto and therefore at S.Ct. 2510. U.S. a

B “service characterized consisting] singing of the Christian Faith portion of religious service songs, fellowship hymns prayer, and with meeting is not unlike the services Center’s and other church members Biblical Camp- at in Bronx and issue Household communion, preaching teaching, shar bell, wor- religious were not mere which fellowship social ing of testimonies and of Louisiana in ship. The Eastern District Id. among the church members.” at 347. that difficult to Campbell noted “[i]t motion for pre Bronx Household filed a service, no matter imagine any religious injunction enjoin liminary the Board of or that does how traditional nontraditional policy prohib enforcing Education from sermons, not include homilies or lessons religious in iting “religious services or or directed at moral and ethical conduct hours. at the after Id. at struction” school one should live one’s life.” 2003 WL how granted prelimi The district 346. court in *9. The at Second Circuit injunction nary and the Second Circuit Household concluded that even Bronx Id. at 357. affirmed. “quintessentially religious” at is- that, The Second Circuit concluded after “only worship, sepa- religious sue were not Club, court News the district did not apart teaching from of moral Good any rate and determining in (citing abuse its discretion that values.” 331 F.3d at 354 Good substantially Club, likely Bronx 112 n. 121 S.Ct. Household was News 533 U.S. at 2093). to establish the Board Education Both cases were decided within Club, violated its First Amendment free where the framework Good News at in disagreed sugges- rights. majority Id. 354. While Supreme with the Court something tion reli- Good News Club characterized Good quintessentially as “the gious decidedly teaching in nature “can- News Club’s activities development morals and as the character properly not also be characterized particular viewpoint,” U.S. at teaching develop- of morals character 2093, the Household court particular viewpoint.” ment from a Bronx 111, 121 determined that characterization “can- S.Ct. this U.S. 2093. not be divorced from Justice de- Souter’s my pains to Although colleagues take description tailed his of the [in dissent] it, parallels Bronx distinguish Household worship] activities the ma- [as Club’s many ways in instructive this ease and is jority adopted as accurate.” Bronx interpretation precedent on the set Household, (citing 331 F.3d at 354 Good News Club. Bronx Household Good Club, 4, 121 at 112 n. in a applied space Faith to rent 2093). The could Second Circuit not find Sunday morning in York school New any meaningful distinction between the ac- included, meetings part, at least in, Bronx engaging tivities Household was fairly that can be described as activities and the activities at issue Good News Household, worship. Bronx Supreme where the Court held that City The New Board of F.3d York excluding activities from club’s Education issued similar to open otherwise to com- school classrooms case, community allowing one this munity groups was discrimination based after groups to meet school classrooms viewpoint. Id. “social, hours for civic and recreational entertainment, activities and meetings pertaining to the of the com those in Bronx and Good News uses welfare Household any munity.” group Id. at 348. The church are likewise too similar to make meaningful Apparently, distinction that would immu- enough my this is col- leagues nize the First Amendment to declare that these cases are so “mere wor- dissimilar that violations. Whether to reverse the district court not, ship” creating can be defined or here would not be split. circuit “religious They wrong. prohibition Framing argument assertion in this nothing repeats analytical is more than content- manner the same services” mistake committed the University based discrimination runs counter to the Missouri in in Widmar: precedent set Good News Club. question is not whether the creation majority opinion attempts to distin- of a religious forum would violate the (1) ways: guish Bronx Household two Establishment University Clause. The Faith activities do not contain has opened its facilities for use stu- worship” “elements of that further secular groups, question dent and the whether is Household, activities as Bronx but con- it can now groups exclude because of the entirely of praise sist and wor- speech. content of their (2) ship; and forum Bronx House- 454 U.S. at 102 S.Ct. 269. meeting hold was different because the The common issue in all of these cases is

was held in a classroom after school hours what types encompass of activities a reli- than a during rather gious worship service. Faith Center ex- Maj. day. Op. at 1211-12. But this plains that during its service Pastor Hattie reasoning faulty premise is based on and Hopkins may sermon, Mae deliver a an irrelevant issue. group may pray sing religious songs. only Not are these activities the same as those at issue in Bronx House- hold, lending thus credence to the notion Faith has never Center claimed the two cases are fact indistinguish- religious worship, services are mere devoid able, but parsing out the actual nature of permissible topics.6 secular ques- clarifies answer to a specifically argues Center my tion colleagues never bother to ask: activities are similar to those in Bronx why religious worship not speech con- Household, Sunday in which morning taining viewpoints permissi- on otherwise meeting services the “singing contained topics? ble secular hymns Christian ... songs, prayer Biblical preaching teaching, Singing religious song may very commun well ion, sharing of testimonies and fel akin to singing morality social about accord- lowship among the church ing Praying usually members.” 351 tenets. only F.3d at praise 347. The differences between to a containing higher being, the church’s activities in Bronx personal Household but also contain character- life, wishes, and those of Faith hopes, is that izations of own one’s Bronx Household church Hopkins’s did not call its concerns. Pastor sermon is the “worship” activities and failed example religious speech to conve clearest which niently separate flyer “worship” expresses on a a viewpoint per- on otherwise portion of its a fellowship topics. imagine activities with missible secular can One meal discussing topics. variety secular Id. at matter that could be love, money, family, included in a sermon' — supra § 6. See I n. 2.

1226 alcohol, endorsing to Faith Center’s avoiding drugs County and name a was or County than it would believe the meeting The list is endless. few. Boy Scouts, endorsing the the Sierra was Instead, categorizes the all of opinion Club, Anonymous. See Good or Narcotics activities into one Faith Center’s 533 U.S. impermissible it neat box and then calls Square & (quoting Capitol Review Adviso- nature speech. Yet never examines the Pinette, ry Bd. v. speech. of that (1995) (O’Con- L.Ed.2d ner, J., says concurring)). court that Our County reasonably could conclude “[t]he opinion distinguishes Bronx also controversy that and distraction of re- the meeting Household the rooms where ligious worship Library within Antioch the this Comparing are located. case to may meeting patrons room alienate brings Household forth the inevit- Bronx library’s purpose making undermine the is a question able to whether there community.” itself available whole non-disruptive difference between meet- Maj. library opened Yet Op. at 1207. ings public meeting during held in room up group itself to another which could library meetings hours held in an easily distracting as controversial and empty public classroom or auditorium on to patrons some East Contra Costa —the grounds or on week- school after school Clearly, opinion Democratic Club. sees distinctions, Despite any ends. facial problem no other types with of controver- Faith Center’s services do not speech. sial their character as communication on lose permitted matter from All meetings Library held the Antioch simply they are because held There is no meetings. closed-door evi meeting public library open room use dence that Center’s service at a rather than school after hours. It is generally disruptive was or that important emphasize County that patrons were bothered. The reasonable argued has never that from Faith noise the library patron observer would be who religious activities disturbed meeting room, purpose knows the peace library patrons elsewhere policy, patron and its This scope. building. the cases in which Unlike would of the number of be aware different groups were on a school allowed community groups that have used the to hold campus meetings, policy did that this Arguing room. informed library meeting restrict the use perceive would observer en room to after when the stacks and hours just dorsement of Faith Center’s activities area were reading closed. possibility that he or because of the she going li- on in argues because the hear some what is brary open saying public during is akin that this individual perceive endorsing hours which Faith Center wishes to hold would to be meetings, library patrons specific political speech would come when the East endorsing Contra Democratic used the believe Costa Club Looking simply Faith Center’s service. same room. There is “no realistic meetings, danger community at the context of Faith Center’s would think observer, [Library] religion endorsing a reasonable “aware the histo- that the creed, community any any context of benefit ry particular and fo- rum,” would no or to the Church would have been more believe Chapel, no more than incidental.” Lamb’s Saturday every other month for four 2141; 508 U.S. at 113 S.Ct. see Wid hours. Certainly the County place could mar, (hold 454 U.S. at 102 S.Ct. 269 reasonable restriction on the number of ing allowing equal access to any times group may use the meeting groups incompatible would not be with a room within a one or two month span, thus government’s compelling interest in avoid alleviating County’s the fear that the li- ing an problem). Establishment Clause brary meeting room will perma- become a nent worship. house of County argues further that cases like Bronx Household found no Establish- Supreme Court’s decisions Good Chib, ment Clause violation Widmar, because the meet- News and Lamb’s Chapel, ings were held after school hours.7 This and the Second Circuit’s opinion Bronx interpretation of the case is not supported Household cannot meaningfully be distin- by Household, reading of Bronx as the guished from presented the facts in this hours were but one factor in the Second case. Faith Center has demonstrated that ruling Circuit’s ultimate on whether the County’s enforcement of policy policy school’s presented Establishment substantially likely to result in restricting problems. Clause 331 F.3d at 356. In speech based on viewpoint. hours,

addition to the the proposed meet- Ill (1) ings: were “not endorsed the School District”; (2) were “not attended any I do not question County’s Contra Costa (3) school employee”; and “open were appreciation sincere of one of our nation’s all members of the public.” Id. fundamental constitutional tenets —the separation of Church and my State —or

While community meetings are held dur- colleagues’ adherence to this important hours, ing library meeting principle. But gone has too would also open public. In addi- far, and the court ignores the inherent (1) tion, would not be endors- constitutional County’s flaws argu- (in fact, ing meeting flyer for Faith ment. attempt to walk Center’s meeting specified that it would be the line opening between its doors to en- (2) meeting’s sponsor); library all pa- courage patrons speak freely and trons premises would be on the voluntarily closing religious doctrine, its ears to (unlike it has children attending public school prevented its voluntarily citizens from (3) during hours); school the meeting hearing “educational, cultural and com- (4) room; would be held in a closed munity” views of an segment entire patrons would be aware of population in an public space accessible the types groups that have used the opened for that very purpose. meeting room. Additionally, would be able time, to enforce reasonable adopting Rather than a policy of neutral- place, restrictions, and manner applicable ity time, and placing reasonable place, and to all groups using room, meeting in manner every group restrictions on order to maintain the academic rooms, atmo- uses the the Coun- sphere of remaining library space. ty gone great has lengths to exclude a Widmar, 454 U.S. at non-disruptive community group based 269. Faith only intended to use the views it wishes express. The court Library the Antioch meeting room analysis one fails in adequately acknowl- I note opinion the court's hold from this case on the basis of the forum does not County's address inevitably Establishment Clause in each forces us to confront this argument, distinguishing but Bronx House- issue. entangle- Establishment Clause edge the this creates. problems

ment exclusion government’s

Just as the endorsement run counter particular

one would nation principles upon which this founded, attempt a County librarian’s wor- what constitutes

to define does these

ship and what not also violates Squelching based

principles. manner

solely on non-obtrusive silences spoken impermissibly

which it is against prejudice and exhibits a Amendment does First tolerate. dis-

I abuse of see no discretion injunc- grant of preliminary

trict court’s allow Faith requiring

tion to the Antioch same access

Library’s meeting room that most are allowed

groups under

broad, policy. respectfully inclusive I dis-

sent. HOLDINGS, INC.,

WESTLAND Wyoming corporation, * on Mitchell Submitted the briefs: E. Plaintiff-Appellee, Osborn, Cheyenne, WY, Appellant. Patton, Palen, Wendy John C. Curtis LAY, Defendant-Appellant, Ross WY, Cheyenne, Appellee. Wyoming Department Employment; ANDERSON, HARTZ, Before Jensen, Georg Defendants. TYMKOVICH, Judges. Circuit

No. 05-8083. TYMKOVICH, Judge. Circuit Appeals, States Court of United Tenth Circuit. dispute involving redemption this sale, tax Aug. property of real after a defen- dant-appellant Lay appeals from the Ross summary grant judg- district court’s * 34(f); 34.1(G). examining appellate R.App. After rec- P. Cir. R. briefs 10th ord, unanimously panel has this determined is therefore case ordered submitted without parties' grant request a decision argument. oral argument. the briefs without oral See.Fed.

Case Details

Case Name: Faith Center Church Evangelistic Ministries v. Glover

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 20, 2006

Citation: 462 F.3d 1194

Docket Number: 05-16132

Court Abbreviation: 9th Cir.