Lead Opinion
This appeal from the grant of a preliminary injunction involves an evangelical Christian church seeking access to a public library meeting room to conduct, among other activities, religious worship services. We are called upon to navigate between two equally important interests: the church’s right to access a government building that is open to other groups, and the government’s right to preserve its property for its intended uses. We conclude that the district court erred when it found that the church was likely to succeed on the merits of its First Amendment claim and therefore abused its discretion in granting preliminary injunctive relief. We have jurisdiction under 28 U.S.C. § 1292, and we reverse in part and remand.
I.
The relevant facts are not disputed. Contra Costa County (“County”) makes available to the public its public library meeting rooms during operating hours. The County’s goal in making these meeting rooms available is “to encourage the use of library meeting rooms for educational, cultural and community related meetings, programs and activities.” Pursuant to the County’s library meeting room policy, “[n]on-profit and civic organizations, for-profit organizations, schools and governmental organizations” may use the meeting room space for “meetings, programs, or activities of educational, cultural or community interest.” The County regulates use of the meeting rooms in the following ways: (1) library meeting rooms are available on a first-come, first-served basis; (2) the applicant must submit an application that identifies the applicant and purpose of the meeting; (3) access to the meeting room is contingent upon approval by the library staff, and the County library reserves the right to deny an application or revoke permission previously granted; (4) an applicant must pay a fee for use of the meeting room when a meeting is not open to the general public, when it charges an admission fee, or when it involves sales or solicitations; (5) schools may not utilize a meeting room “for instructional purposes as a regular part of the curriculum”; and (6) the library meeting room “shall not be used for religious services.”
It is the last policy restriction on “Religious Use” that is the subject of this case. The “Religious Use” restriction has twice been amended since the present action was filed in the district court. Initially, the policy provided that “[Ijibrary meeting rooms shall not be used for religious pur
Plaintiff Faith Center Church Evangelistic Ministries is a non-profit religious corporation led by plaintiff Pastor Hattie Mae Hopkins (collectively “Faith Center”). According to Faith Center’s verified amended complaint, Pastor Hopkins believes that she is called to share her Christian faith with others. Pastor Hopkins believes that there are many individuals who need to hear about the gospel of Jesus Christ but who may never enter a traditional church building. To reach those individuals, Pastor Hopkins holds meetings and worship services in non-church buildings under the auspices of Faith Center. Participants at Faith Center’s meetings generally “(a) discuss educational, cultural, and community issues from a religious perspective; (b) engage in religious speech and religious worship; and (c) engage in discussing the Bible and other religious books [as well as] teaching, praying, singing, sharing testimonies, sharing meals, and discussing social and political issues.”
Pastor Hopkins believes that divine providence guided her to begin holding Faith Center meetings in Antioch, California. In May 2004, Pastor Hopkins submitted applications requesting to use the County’s Antioch Branch Library meeting room for May 29, 2004 and July 31, 2004. In each application, Pastor Hopkins described the purpose of Faith Center’s meetings as “Prayer, Praise and Worship Open to the Public, Purpose to Teach and Encourage Salvation thru Jesus Christ and Build up Community.” Pastor Hopkins received confirmation from Antioch Library staff that her applications had been approved and that Faith Center’s dates were reserved on the library’s calendar.
Faith Center advertised its May 29, 2004 meeting with a flyer describing a “Women of Excellence Conference” sponsored by Faith Center Evangelistic Ministries Outreach. The flyer stated:
Coming to Antioch, California, on May 29th 2004, where the power of God would be moving to bring miracles into your life. “For this is the hour of the believer,” thus saith the Lord, for divine impartation of spiritual gifts, and empowerment, for the body of Christ to move forward in total victory. Come and receive your blessing!
The flyer divided the day’s activities into a ‘Wordshop” from 11:00 a.m. to 12:00 p.m., refreshments, and an afternoon “Praise and Worship” service with a sermon by Pastor Hopkins from 1:00 p.m. to 3:00 p.m. The topic of the morning “wordshop” was “ ‘The Making of an Intercessor,’ an End-time call to Prayer for every Believer, and how to pray fervent, effectual Prayers that God hears and answers.”
Faith Center held its meeting and service on May 29, 2004. Toward the end of the afternoon service, Antioch Library staff informed Faith Center representatives that they were not permitted to use the meeting room for religious activities. According to Faith Center, the library staff did not express concern about excessive noise but rather about a violation of the “Religious Use” policy, which, at that time, prohibited the use of library meeting rooms for “religious purposes.”
On July 30, 2004, Faith Center sued to enjoin the County from excluding Faith Center’s proposed religious meetings on the basis of the County’s “Religious Use” policy.
Before the district court, Faith Center argued that the County discriminated against Faith Center on the basis of the church’s viewpoint when it enforced its old policy prohibiting access to the meeting room for “religious purposes” and cancelled Faith Center’s July 31, 2004 meeting. Faith Center also asserted that enforcement of any of the County’s “Religious Use” policies, including the current one barring “religious services,” would result in viewpoint discrimination in violation of the First Amendment.
The County agreed that its former meeting room policies were overly broad and that Faith Center’s morning “wordsh-op” at the May 29th meeting was the type of religious speech activity that would be permitted under the current policy. The County, however, argued that barring Faith Center’s religious worship services from the meeting room was a permissible exclusion of a category of speech meant to preserve a limited public forum for its intended uses. The County viewed Faith Center’s May 29th afternoon “praise and worship” session as mere religious worship exceeding the purpose for which the meeting room forum had been created.
The district court granted Faith Center’s motion for a preliminary injunction. See Faith Center Church Evangelistic Ministries v. Glover, No. 04-03111,
The district court based its order on four legal premises: (1) religious worship
As the district court made clear, it proceeded on the basis that the afternoon “praise and worship” session constituted pure religious worship services.
II.
We have jurisdiction under 28 U.S.C. § 1292. We will reverse the grant of a preliminary injunction when the district court has abused its discretion or has based its decision on an erroneous legal standard or on clearly erroneous findings of fact. See Satava v. Lowry,
III.
A preliminary injunction may issue when the moving party demonstrates ei
Because the district court concluded that enforcement of the County’s library meeting room policy was substantially likely to violate Faith Center’s right to freedom of expression, the court also concluded that Faith Center had demonstrated the requisite irreparable harm. See Elrod v. Burns,
IV.
A.
As a preliminary matter, our inquiry ends if Faith Center’s religious services do not constitute “speech” subject to First Amendment protection. We conclude that Faith Center engaged in protected speech when its participants met in the Antioch Library for prayer, praise, and worship. See Widmar v. Vincent,
The Constitution, however, does not guarantee that all forms of protected speech may be heard on government property. “[T]he Government, 'no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.’ ”
We begin our forum analysis by “identifying] the nature of the forum” and “whether the forum [at issue] is public or non-public.” Cornelius,
Traditional public fora such as public streets and parks are locations that “by long tradition or by government fíat have been devoted to assembly and debate.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
Any public property that is not by tradition or designation a forum for public communication is classified as a non-public forum. See DiLoreto,
We have recognized that the Supreme Court, in decisions subsequent to Perry and Cornelius, has identified another category — the “limited public forum”— to describe a nonpublic forum that the government intentionally has opened to certain groups or for the discussion of certain topics. See DiLoreto,
We conclude that the Antioch Library meeting room is a limited public forum and that enforcement of the County’s policy to exclude religious worship services from the meeting room is reasonable in light of the forum’s purpose. It is clear, and neither party contends otherwise, that the forum created by the County is neither a traditional public forum nor a non-public forum. Rather, the parties dispute whether the Antioch meeting room constitutes a designated or limited public forum.
In evaluating the type of forum at issue, we look to “the policy and practice of the government, the nature of the property and its compatibility with expressive activity, and whether the forum was designed and dedicated to expressive activity.” Children of the Rosary v. City of Phoenix,
The County’s library meeting room policy allows “[n]on-profit and civic organizations, for-profit organizations, schools and governmental organizations” to use a branch Library meeting room for “meetings, programs, or activities of educational, cultural or community interest.” Evidently, the County’s purpose was to invite the community at large to participate in use of the meeting room for expressive activity. In practice, the County has allowed a variety of community groups to hold meetings in the Antioch Library meeting room, including the Sierra Club for purposes of letter writing, Narcotics Anonymous for a recovery meeting, and the East Contra Costa Democratic Club to “let people learn about Democratic candidates and issues.”
A policy with a broad purpose however is not dispositive of an intent to create a public forum by designation. In Good News Club, the Supreme Court adopted the Second Circuit’s conclusion that the State of New York had created a limited public forum when it made its public schools available for “social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community.” Good News Club,
Here, the County’s policy and practices make clear that the County did not intend for the Antioch Library meeting room to be open for indiscriminate use. The County’s policy excludes schools from using the meeting room “for instructional purposes as a regular part of the curriculum” and organizations who wish to engage in “religious services.” Additionally, the policy requires a potential user to submit an application describing the intended use and identifying the applicant. Thereafter, the application must be reviewed and approved in advance by the County. Requiring prior permission for access to forum demonstrates that a public forum has not been created by designation. See Cornelius,
The record indicates that the County has consistently applied its policy restrictions. Faith Center does not contend that the County has ever failed to screen an application or that the County has granted access to an applicant on a non-policy basis. See Hopper,
The nature of the forum also supports the conclusion that, although the community at large has been invited to use the room, the library meeting room was not intended to be open for unlimited public expression. A library is quintessentially “a place dedicated to quiet, to knowledge, and to beauty,” Brown v. Louisiana,
We also note that the Antioch meeting room is located within the Antioch Branch Library itself, that the meeting room is accessible during normal operating hours when other library patrons are present, and that sound can be heard by nonparticipants. Thus, while the Library meeting room is compatible with different kinds of expressive activity such as a group discussion or lecture, we are mindful that the forum was not intended to undermine the library’s primary function as a venue for reading, writing, and quiet contemplation.
The County’s policy delineating the speakers and uses appropriate for the Library meeting room, its consistent screening of applications, and its requirement of a fee in limited circumstances,
C.
“[Rjeasonableness analysis focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated.” DiLoreto,
The purpose of the County’s library policy is to make its library meeting rooms available as a community resource for different kinds of expressive activity such as meetings, discussions, lectures, and other “meetings, programs, or activities of educational, cultural or community interest.” The County’s policy regulates use of the meeting room to preserve the character of the forum as a common meeting space, an alternative to the community lecture hall, the corporate board-room, or the local Starbucks. The library policy, for example, prohibits schools from using the meeting room as a regular part of the school’s curriculum. The County’s exclusion of schools is reasonable in light of its purpose. To allow the meeting room to be converted into a classroom would transform the character of the forum from a community meeting room to a public school.
By the same token, the County’s decision to exclude Faith Center’s religious worship services from the meeting room is reasonable in light of the library policy so that the Antioch forum is not transformed into an occasional house of worship. Faith Center acknowledges that it seeks to reach out to those individuals who might not enter a traditional church building, and to bring the evangelical church experience to them. We see nothing wrong with the County excluding certain subject matter or activities that it deems inconsistent with the forum’s purpose, so long as the County does not discriminate against a speaker’s viewpoint. To conclude that the County’s exclusion of religious worship services from its government buildings is unreasonable would result in the “remarkable proposition that any public [building] opened for civic meetings must be opened for use as a church, synagogue, or mosque.” Good News Club,
The County also has a reasonable interest in limiting the Library meeting room to uses that could potentially interfere with the primary function of the library. In DiLoreto, a school district policy excluded subject matter that was deemed too sensitive or controversial from advertisements on a high school’s baseball fence.
Here too, the County has a legitimate interest in screening applications and excluding meeting room activities that may interfere with the library’s primary function as a sanctuary for reading, writing, and quiet contemplation. The County reasonably could conclude that the controversy and distraction of religious worship within the Antioch Library meeting room may alienate patrons and undermine the library’s purpose of making itself available to the whole community. See id. We therefore conclude that the County’s prohibition on religious worship services is reasonable in light of the purpose served by the Library meeting room.
V.
Although the County’s policy, and its decision to bar Faith Center from using the Library meeting room to conduct religious worship services, is reasonable in light of the forum’s purpose, Faith Center is likely to succeed on the merits of its First Amendment claim if it can establish that the County discriminated against it because of its religious viewpoint.
In a limited public forum, the government is free to reserve access to the forum “for certain groups or for the discussion of certain topics.” Rosenberger,
We hold that the exclusion of Faith Center’s religious worship services from the Antioch Library meeting room is a permissible limitation on the subject matter that may be discussed in the meeting room, and that it is not suppression of a prohibited perspective from an otherwise permissible topic. In so holding, we address two arguments raised by Faith Center that bear directly on our analysis. First, Faith Center contends that the prohibition on religious worship services is impermissible viewpoint discrimination because “prayer, praise and worship” is an educational, cultural, and community-related activity that has been suppressed due to Faith Center’s religious perspective.
Second, Faith Center argues that its religious worship cannot be distinguished from other religious speech that is permitted in the Antioch Library, and to attempt a judicially enforceable distinction would entangle the government with religion in a manner forbidden by the Establishment Clause.
A.
We first address whether the County has discriminated on the basis of content or viewpoint. “Content discrimination occurs when the government chooses the subjects that may be discussed, while viewpoint discrimination occurs when the government prohibits speech by particular speakers, thereby suppressing a particular view about a subject.” Giebel v. Sylvester,
The Supreme Court’s decision in Boos v. Barry exemplifies the difficulty of identifying whether a regulation excludes an entire category of speech or restricts a prohibited viewpoint.
In Lamb’s Chapel, the Court articulated a test for distinguishing between content and viewpoint discrimination. A religious group seeking to show a film series on child rearing from a Christian perspective was denied access to a school facility because of the school district’s policy barring use of the rooms for religious purposes. The Court unanimously held that the school district “discriminate[d] on the basis of viewpoint [by] permit[ting] school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint.”
The Court applied that test in Rosenber-ger. In Rosenberger, the Court considered whether a University of Virginia policy of excluding religious publications from eligibility for student funds was viewpoint discrimination or a content-based exclusion. The University sought to avoid a possible Establishment Clause violation by excluding funding that supported “religious activity,” including student publications that espoused and promoted religious beliefs. See
Most recently, in Good News Club v. Milford Central School, the Court held that a school district engaged in viewpoint discrimination when it refused to allow a Christian children’s club (“Club”) to offer a religious perspective on moral and character development in a school forum that was open to wide community involvement. The school district allowed its facilities to
Good News Club is notable for two other reasons. First, the Court concluded that even activities that are “quintessentially religious” can be used to further the purpose of moral instruction and character development. In Good Neivs Club, the Club taught morality and character development by singing songs, relating stories from the Bible, reciting verses, memorizing Scripture, and prayer. See id. at 103,
Second, the Court drew a distinction between the Club’s activities and “mere religious worship, divorced from any teaching of moral values.” Id. at 112 n. 4,
Turning to Faith Center’s argument, we disagree that prohibiting religious worship services in the Antioch Library meeting room constitutes viewpoint discrimination. The test, as we have articulated, is whether the government has excluded a perspective on a subject matter otherwise permitted in the forum. To determine whether “religious worship” is a perspective on an allowable topic, we are guided by the Court’s approach in Good News Club and draw reference from events and activities that have been hosted at the Antioch meeting room forum. See id. at 108,
As noted above, the County acknowledged that Faith Center’s morning activities on May 29, 2004 were permissible under the County’s current policy. According to Faith Center’s flyer describing the day’s events, the morning “Wordshop”
It is clear that “communication” is a permissible topic of discussion in the Antioch Library meeting room. If the Antioch Speech and Debate club applied to use the meeting room to discuss the art of oratory and effective communication of secular subjects, the County would not likely reject such a proposal. It would therefore be viewpoint discrimination for the County to exclude Faith Center’s perspective on the subject of communication because of the religious content of Faith Center’s speech.
Other activities that occur at Faith Center’s meetings are also permissible in the Antioch meeting room. Faith Center explains that meeting participants sometimes “engage in discussing the Bible and other religious books [as well as] teaching, praying, singing, sharing testimonies, sharing meals, and discussing social and political issues.” These activities convey a religious perspective on subjects that are or have been permitted in the Antioch Library meeting room, such as a discussion of the Bible, discussions of social and political issues, and sharing life experiences.
The County, for example, permits meetings by the East Contra Costa Democratic Club to “let people learn about Democratic candidates and issues” — in essence to discuss social and political issues from the standpoint of the Democratic Party. A Narcotics Anonymous recovery meeting includes sharing personal life experiences similar to sharing testimonials of one’s personal experiences with God and faith. A letter-writing campaign by the Sierra Club involves the discussion and communication of matters of social and political interest to its members. Discussions of the Bible and other religious and literary texts are also clearly permissible in the library. Thus, to exclude Faith Center from discussing topics that are appropriate to the forum because of a prohibited religious perspective would constitute viewpoint discrimination in violation of the First Amendment.
Faith Center’s afternoon activities on May 29th, however, did not consist of religious viewpoint activities. Faith Center occupied the Antioch forum expressly for “praise and worship” and in doing so Faith Center exceeded the boundaries of the library’s limited forum. The district court understood, and Faith Center did not dispute, the contention that the afternoon activities constituted pure religious worship services. Rather, Faith Center argued before the district court that its religious worship could not be distinguished from the rest of its religious speech, and for the court to make such a distinction was constitutionally impermissible.
Pure religious worship, however, is not a secular activity that conveys a religious viewpoint on otherwise permissible subject matter. For every other topic of discus
Religious worship, on the other hand, is not a viewpoint but a category of discussion within which many different religious perspectives abound. If the County had, for example, excluded from its forum religious worship services by Mennonites, then we would conclude that the County had engaged in unlawful viewpoint discrimination against the Mennonite religion. But a blanket exclusion of religious worship services from the forum is one based on the content of speech.
Faith Center contends that because a religious worship service is an “educational, cultural and community related” activity, excluding religious worship services from the forum when other community-related activities are permitted amounts to viewpoint discrimination. Although . religious worship is an important institution in any community, we disagree that anything remotely community-related must therefore be granted access to the Antioch Library meeting room. That argument was rejected in Good News Club when the Court distinguished the Club’s activities from “mere religious worship” and implicitly acknowledged that religious worship exceeded the boundaries of the limited public forum. See Good News Club,
Faith Center’s reliance on the Second Circuit’s decision in Bronx Household of Faith is misplaced. In Bronx Household of Faith, an evangelical Christian church sought access to a public school building for Sunday meetings that consisted of singing Christian hymns, prayer, Biblical preaching and teaching, communion, and social fellowship.
Bronx Household of Faith is inapposite because here we simply do not have “elements of worship” that further secular goals. Faith Center’s afternoon activities on May 29, 2004, as described by Faith Center itself, consisted entirely of praise and religious worship. The Second Circuit made clear that its “ruling [was] confined to the district court’s finding that the [church’s] activities ... [were] not simply
B.
We turn to Faith Center’s second argument, that the prohibition on religious services in the Antioch forum is viewpoint discrimination because religious worship cannot be distinguished from other permissible forms of religious speech. According to Faith Center, to enforce such a distinction, would entangle the government with religion in a manner forbidden by the Establishment Clause.
Faith Center relies on Widmar v. Vincent for support. In Widmar, a religious student organization sought access to state university facilities for religious worship and discussion. The University made its facilities available for activities by registered student groups but prohibited the use of University buildings “for purposes of religious worship or religious teaching.”
In dicta that was not central to the Court’s holding, Justice Powell discussed the difficulty he had with the dissent’s contention that a distinction should be made between religious worship and other kinds of religious speech:
First, the dissent fails to establish that the distinction has intelligible content. There is no indication when “singing hymns, reading scripture, and teaching biblical principles,” cease to be “singing, teaching, and reading” — all apparently forms of “speech,” despite their religious subject matter — and become unprotected worship.
Second, even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Merely to draw the distinction would require the university — and ultimately the courts— to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases.
Faith Center echoes the same arguments. Faith Center asks how the County, or courts for that matter, can draw a line between permissible components of religious speech — singing, sharing testimonials, even prayer in the context of discussing how to communicate with God— and impermissible religious worship. Further, Faith Center argues that the government and courts are not competent to identify when certain expressive activity is religious worship. To enforce such a distinction would foster an excessive government entanglement with religion. See Lemon v. Kurtzman,
As Justice Scalia noted in Good News Club, however, “[w]e have drawn a different distinction — between religious speech generally and speech about religion — but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic.”
We also have recognized that school officials may draw a distinction between different kinds of private religious speech in order to preserve the intended purpose of a limited public forum. In Hills, the court held that a school district’s policy to distribute summer camp brochures to students could not exclude a brochure that advertised for a religious summer camp. See
This case differs from the aforementioned cases in that the County may not
The distinction to be drawn here is thus much more challenging — one between religious worship and virtually all other forms of religious speech' — -and one that the government and the courts are not competent to make. That distinction, however, was already made by Faith Center itself when it separated its afternoon religious worship service from its morning activities. Faith Center admits that it occupied the Antioch forum in the afternoon of May 29, 2004 expressly for “praise and worship.” The County may not be able to identify whether Faith Center has engaged in pure religious worship, but Faith Center can and did.
VI
We therefore conclude that prohibiting Faith Center’s religious worship services from the Antioch meeting room is a permissible exclusion of a category of speech that is meant to preserve the purpose behind the limited public forum. Religious worship services can be distinguished from other forms of religious speech by the adherents themselves. Because the district court erred in enjoining the County from applying its library meeting room policy to exclude Faith Center’s religious worship services, we reverse the injunction in part.
The County, however, acknowledged that its prohibition on religious worship services could not be applied to bar Faith Center from engaging in secular activities that express a religious viewpoint. Indeed, the County informed the district court that Faith Center’s morning “wordshop” on May 29, 2004 was a permissible activity even though its purpose was to teach people how to pray or communicate with a divine presence. To that end, the County invited the district court to craft an injunction that ensured Faith Center’s right to conduct activities in the meeting room that express a religious viewpoint, and allowed the County to exclude religious worship services. We note that the County offered several proposals for crafting a preliminary injunction that would achieve these balancing objectives and avoid the pitfalls of excessive government entanglement.
REVERSED in part, VACATED in part, and REMANDED for further pro-
Notes
. Faith Center contends that out of consideration for library patrons, the meeting participants did not use musical instruments or amplified sound. The County explains that the
. Faith Center named as defendants Federal D. Glover (chair of the County Board of Supervisors); Mark DeSaulnier, John M. Gioia, Millie Greenberg, and Gayle B. Uilkema (members of the County Board of Supervisors); John Sweeten (County Administrator); Anne Cain (County Librarian); Patty Chan (Senior Librarian of the Antioch Branch); and Laura O'Donahue (Administrative Deputy Director of the Antioch Branch) (collectively the "County”).
. Faith Center also alleged that enforcement of the Library policy was hostile to religion in violation of the Establishment Clause; that the Library policy was facially invalid because the County had created a designated public forum and the policy’s regulation of speech was not justified by a compelling governmental interest; and that the County violated Faith Center's right to equal protection. The district court did not address these separate claims.
.Although the County applied the “religious purposes” policy in existence at the time it cancelled the July 31st meeting, the County has consistently maintained that it would bar religious worship services from the library meeting room under the revised policy.
. In light of the district court's determination that the County discriminated against Faith Center's speech on the basis of viewpoint, the court did not address the nature of the forum created by the County's policy of opening its library meeting rooms to the public.
. The transcripts of the preliminary injunction hearing show that the district court understood that the afternoon session constituted pure religious worship services, even as Faith Center's other activities earlier in the day did not:
[Counsel for the County]: I have to take issue a little bit with the characterization that it is defendants who have characterized what Faith Center is doing as worship. Faith Center has characterized it that way, your honor.
The Court: I know. They are making the argument even assuming it’s worship. That gets into a set of new questions.
The Court: What is your bottom line? Is your bottom line then the Court cannot issue any injunction which has the effect of precluding, as you would call it or the courts call it, mere worship in the library rooms?
[Counsel for Faith Center]: That's right, your honor.
The dissent dismisses Faith Center’s representation at the preliminary injunction hearing. See Dissent Op., at 1218 n. 2. However, the representation is consistent with other evidence in the record that Faith Center intended its afternoon session to consist of religious worship services. See supra at 1199.
. Because we conclude that the district court erred in granting relief on the basis of Faith Center’s First Amendment as applied challenge, we need not address Faith Center's other constitutional arguments. See supra note 3. Upon remand, the district court may address these claims in the first instance.
. We have previously noted that "[t]he contours of the terms 'designated public forum'
. Faith Center offers examples of other applicants seeking access to other library meeting rooms in the County. As the district court correctly noted, however, the relevant forum is "defined by the access sought by the speaker,” DiLoreto,
. We have also interpreted policies with a “broad purpose" to nevertheless create a limited public forum. See, e.g., Hills v. Scottsdale Unified Sch. Dist.,
. The County, however, acknowledges that it may not bar Faith Center from using the Libraiy meeting room to conduct activities that express a religious viewpoint on otherwise permissible subject matter.
. It should be noted that Justice Scalia's concurrence embraced the position that the majority was not willing to take. Justice Sca-lia argued that a distinction could not be made between the Club’s activities and religious worship, and that in any event, the forum could not restrict religious worship from taking place there. See id. at 125-26,
. Although the library meeting room policy refers to implementing rules and regulations, those rules and regulations were not a part of the district court record. We therefore refrain from commenting on the permissibility of singing, eating, and drinking in the Antioch Library meeting room.
. It is difficult to imagine moreover that religious worship could ever truly be divorced from moral instruction or character development. That is not what the majority in Good News Club meant when it wrote: "we conclude that the Club's activities do not constitute mere religious worship, divorced from any teaching of moral values.” See id. That statement must be taken in its proper context. The defendant district opened the forum in part for the moral and character development of children. As here, pure religious worship was too tenuously associated to the forum's purpose.
. The court noted that the majority accepted Justice Souter’s recitation of the Club's activities as accurate. See Good News Club,
. Indeed, the unique factual circumstances of the County’s limited forum set this case apart from the cases primarily relied upon by Faith Center to demonstrate the existence of viewpoint discrimination. See, e.g., Good News Club,
. The United States, as amicus curiae in support of Faith Center, argues that these school cases are distinguishable because they involve religious speech broadcast to a captive audience. We agree that the government may be justified in excluding proselytizing speech from its limited fora. The point remains, however, that the government is capable of identifying proselytizing religious speech or speech that simply has aspects of religious worship.
. The dissent raises the specter of inevitable government entanglement when a County librarian encounters some future applicant who is less than candid about its religious worship activities. See Dissent Op. at 1221-22. We need not speculate about those possibilities. On the limited evidentiary record and in light of the procedural posture of this case, we decide only that which is before us.
. At the preliminary injunction hearing, the County proposed that its meeting room application be altered to include a certification by the applicant that the meeting room will not be used for religious services. The County elaborated that a certification would allow it to rely on the honesty of the applicant while avoiding any potential issues of entanglement. We express no opinion on the merits of such a proposal.
. In light of our conclusions, we need not address whether the County has a necessary and compelling interest in excluding religious worship services from its library meeting rooms to avoid a violation of the Establishment Clause.
Concurrence Opinion
Concurring:
I concur in Judge Paez’s well-reasoned opinion, which reflects the sorry state of the law. I write separately to express my dismay at that sorry state.
This should be a simple case it asks whether the county can be forced to subsidize a religious organization’s prayer meetings by requiring it to provide the religious organization with a free place to worship. A quick reading of the First Amendment to the Constitution of the United States should answer the question. Judge Paez’s opinion tracks the cases and reaches its laborious result because the law has so elaborated that the reaching of the conclusion requires the effort the opinion demonstrates. As I now explain, that elaboration is premised on a failure to accept the plain meaning of the First Amendment.
Both Good News Club v. Milford Cen. Sch.,
Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion. See McCollum v. Board of Education,
That threat is not merely historic. One need only look about the world to see that danger in play. The scenario is the same whether it is in Northern Ireland where Catholics and Protestants kill each other in an effort to establish governmental power, in Israel, where Jews and Muslims do the same, in Iraq, where Shi’a and Sunni are engaged in similar slaughter, or in Sudan where Muslims murder Christians. See School District of Abington v. Schempp,
Where government plays a role in the religious life of a pluralist society, there is the danger that government will favor the majority religion and seek to control or prohibit the rites of minority religions.
The wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone’s religion. Everson v. Board of Ed.,
In any event it is simply beyond cavil that the instant case does not present a close question. Appellees have been completely candid in acknowledging that the purpose of the meetings they proposed to hold on public property is “Prayer, Praise and Worship Open to [the] Public, Purpose to Teach and Encourage Salvation thru Jesus Christ and Build Up Community].” To assert an inability to conclude that purpose is religious in every sense, is to engage in the kind of sophistry that gives the law a bad name. It may be that the majority of the Supreme Court really has doubt about the ability to distinguish between religious practice and secular speech. If so, they need only leave their chambers, go out in the street and ask the first person they meet whether in the instant case the conduct is religious in character. It is simply untenable to insist that there is no difference between a prayer and e.g. political speech. To coin a phrase, one can only pray for the court’s enlightenment.
While I believe that Thomas Jefferson has the better end of the debate, that belief is irrelevant. I concur in the opinion because, as a subordinate judge, it is my duty to adhere to the precedent of the Supreme Court “no matter how misguided.” Hutto v. Davis,
Dissenting Opinion
dissenting:
The “Religious Use” exclusion is impermissible viewpoint discrimination because Contra Costa County (the “County”) opened its public meeting room at the Antioch Library to the community in order “to encourage [its use] for educational, cultural and community related meetings, programs and activities.”
The County draws an arbitrary line in the sand, arguing that it has the right to decide what constitutes a religious service while failing to set forth specific guidelines defining the term. It contends that the Establishment Clause of the First Amendment requires County officials to exclude those who wish to engage in worship behind the closed doors of its library meeting rooms. My colleagues in the majority accept the County’s skewed view of the First Amendment by upholding a policy which on its face and as applied produces the very entanglement the County ostensibly seeks to avoid, and in doing so the court creates a conflict with the Second Circuit and contradicts Supreme Court precedent. I respectfully dissent.
I
“[Rjeligious worship and discussion ... are forms of speech and association protected by the First Amendment.” Widmar v. Vincent,
As support for its assertion, the County cites two Supreme Court cases, a Second Circuit case, and an Eastern District of Louisiana case, none of which address whether mere religious worship should or could be parsed from other types of religious speech. See Good News Club,
When compared to similar cases, such as Bronx Household and Campbell, where private religious groups conducted religious services in a government-owned forum, Faith Center’s service cannot properly be described as “mere religious worship, divorced from any teaching of moral values.” See Bronx Household,
A
Although the Second Circuit in Bronx Household declined to answer the question whether religious worship may be parsed from other religious speech, the court was concerned as to how the judiciary or any government official could validly make the distinction. See
Here, the district court relied heavily, and properly so, on Widmar and Bronx Household for its conclusion that religious worship may not be parsed from other religious speech. Faith Center Church,
There is no indication when “singing hymns, reading scripture, and teaching biblical principles” ... cease to be “singing, teaching, and reading”- — all apparently forms of “speech,” despite their religious subject matter — and become unprotected “worship.”
[Ejven if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Merely to draw the distinction would require [the government] — and ultimately the courts — to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the [government] with religion in a manner forbidden by our cases.
Widmar,
The majority opinion here cites several cases where the Supreme Court has drawn a distinction between general religious speech and speech about religion. Maj. Op. at 1213. These cases involve speech before students at public schools and speech by government employees in the work-place. However, not only do the cited cases involve evangelical speech to a captive audience, but they are also instances where even proselytizing may be excluded. No amount of general religious speech is allowed in public schools or government workplaces during the business day if it is evangelical in design. Speech about religion is permissible in such limited fora where the purpose of the forum is very specific — school is for academic learning and the workplace is for work.
The Antioch Library opened its meeting room for a much broader purpose. My colleagues concede that evangelical speech is permissible under the “Religious Use” exclusion if it conveys a viewpoint on an otherwise permissible topic, and acknowledge that the distinction the County must draw here is more subtle than in any of the cases the opinion cites. Maj. Op. at 1213. But that is as far as the opinion goes in this analysis. It does not attempt to answer the insoluble riddle of how the County could parse religious speech which conveys a viewpoint on an otherwise permissible topic with mere religious worship that is impermissible speech according to the court. Instead, it claims that Faith Center has solved the riddle for us since Faith Center specifically calls its activities “worship.” Under this reasoning, if Faith Center says what it is doing is worship, then the County need not make the distinction.
But this flawed analysis blithely ignores other similarly situated religious groups that may not make such a nice admission to the County in their applications to use the room. While the district court granted the preliminary injunction based on Faith Center’s “as applied” challenge to the policy, Faith Center also brought a facial challenge to the policy. Ignoring the prelimi
Announcing the strange rule that “Religious worship services can be distinguished from other forms of religious speech by the adherents themselves,” Maj. Op. at 1214, creates a system whereby the applicant itself decides what constitutes worship. Under the policy, the County will still have to determine what is and what is not religious worship in instances where a group does not identify in such detail its activity, and the County is not off the hook even if a group does say it will engage in religious worship. Creative word-play cannot avoid the reality that worship is intangible, and even what Faith Center itself determines is religious worship may not be worship to another. See Bronx Household,
The County chooses to exclude Faith Center because it believes that allowing religious worship within its library meeting room violates the Establishment Clause. It contends that patrons would then perceive the County to endorse a particular religion. . Given the County’s position, our court’s newly created rule is nonsensical because the religious groups that the County claims will cause it to violate the Establishment Clause are the ones who would decide what speech constitutes a violation of the policy. I doubt the County had such a rule in mind when it created its “Religious Use” exclusion. The truth is that neither the County nor Faith Center can validly parse religious worship from religious speech under the County’s broad and undefined policy.
B
Any attempt by the County to parse religious worship from other religious speech would trigger the inherent Establishment Clause entanglement problems it seeks to avoid. Justice Souter, in his dissenting opinion to Good News Club, described the religious activities in Good News Club as including elements of worship, such as prayer, a “challenge” that invited “saved” children to ask God for strength, and an “invitation” that asked “unsaved” children to receive Jesus Christ as their Savior from sin.
Faith Center’s religious service consists of prayer, praise, and a sermon, consistent with the type of worship in Good News Club. Faith Center’s worship activities include discussion of moral character and other secular subjects — well within the
Justice Scalia, in a concurring opinion to Good News Club, examined our ability to distinguish religious worship from other religious speech. He concluded that the distinction between worship and other religious speech has “no intelligible content” and no “relevance” to the constitutional issue. Good News Club,
There are as many ways to conduct “religious services” as there are religions in the world, not accounting for different sects of the same religion. The Supreme Court has said that the government “would risk greater entanglement by attempting to enforce its exclusion of religious worship.” Widmar,
C
Even if we were to ignore the inherent entanglement the exclusion would cause, the exclusionary portion of the policy is nonetheless facially invalid. While the County excludes religious services in its library meeting rooms, it does not define “religious services.” How can a County librarian validly parse religious worship from allowable religious speech when the librarian does not have the proper guidelines by which he or she may recognize the offending conduct?
The opinion never addresses what the County would do if another group were to conduct worship services without delineating its activities on a flyer. Are we then to accept that a librarian will know worship when he or she sees it? Are we now to declare that the County’s librarians are experts in theology and world religion? Perhaps they might consult the books on the shelves of their libraries. Or are we only excluding traditional Christian wor
Separating religious worship from other religious speech inevitably leads to state entanglement in religion that would not otherwise exist should private religious groups be allowed the freedom to conduct activities consistent with the goal of the policy, given reasonable time, place, and manner restrictions also imposed on all other groups wishing to use the public library meeting room. See Widmar,
II
The majority opinion not only ignores the obvious state entanglement problems the exclusion of worship presents, but it also holds that religious services cannot include speech which expresses viewpoints on otherwise secular subject matter, a conclusion contrary to the weight of Supreme Court authority. My court agrees with the County that the exclusion is content based and viewpoint neutral. Because my colleagues conclude the County has created a limited public forum,
Based on its argument that religious worship may be parsed from other religious speech, the County contends that the policy excludes a whole category of speech with a distinct content, apparently believing that all religious worship speaks of the same subject matter and contains no particular viewpoint on otherwise permissible secular topics. I disagree. The speech at issue here may include discussion of religious viewpoints on a variety of otherwise includible subjects, and to exclude this speech would be classic viewpoint discrimination. “Viewpoint discrimination is a form of content discrimination in which ‘the government targets not subject matter, but particular views taken by speakers on a subject.’ ” Children of the Rosary v. City of Phoenix,
Although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum ... or if he is not a member of the class of speakers for whose especial benefit the forum was created ..., the government violates the First Amendment when it denies access to a speaker solely to suppress the point*1223 of view he espouses on an otherwise includible subject.
Lamb’s Chapel,
The Supreme Court in Good News Club saw “no reason to treat the ... use of religion as something other than a viewpoint merely because of any evangelical message it conveys.”
A
The County argues that the exclusion “is directed to a distinct type of subject matter and separate category of speech, not a particular religious ‘viewpoint’ on an otherwise permissible subject.” It represents its prohibition as “permissible content-based restrictions” which, for example, “exclude speech based on topic, such as politics or religion, regardless of the particular stand the speaker takes on the topic.” DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ.,
First, as previously stated, the notion that religious worship may be parsed from other religious speech ignores the weight of Supreme Court authority against it. See supra § I. Second, even if the County were somehow able to parse religious worship from other religious speech, and all religious worship is treated alike under the exclusion, the County does not explain why religious services cannot include religious viewpoints on permissible subjects. See Lamb’s Chapel,
Faith Center’s religious service consists of singing songs, engaging in prayer, and sermons about community and moral character from a Biblical viewpoint. Community and moral character are two secular subjects that would be includable under the policy’s broad scope. Yet the County and my colleagues assert that Faith Center’s worship cannot express a viewpoint because of the way ideas are communicated — through prayer and sermon.
As an example of what it deems to be the distinction between subject matter and viewpoint discrimination, the County argues- that “true viewpoint discrimination ... would occur if the County permitted Christian . or Buddhist religious services but disallowed Muslim or Jewish services.” However, the County must therefore assume all religious services, regardless of denomination, do not communicate ideas on topics that are permissible under the policy, such as moral character. The “exclusion of several views ... is just as offensive to the First Amendment as exclusion of only one.” Rosenberger,
The religious service portion of Faith Center’s meeting is not unlike the services at issue in Bronx Household and Campbell, which were not mere religious worship. The Eastern District of Louisiana in Campbell noted that “[i]t is difficult to imagine any religious service, no matter how traditional or nontraditional that does not include sermons, homilies or lessons directed at moral and ethical conduct or how one should live one’s life.”
Although my colleagues take pains to distinguish it, Bronx Household parallels this ease in many ways and is instructive on the interpretation of the precedent set by Good News Club. The Bronx Household of Faith applied to rent space in a public school in New York for Sunday morning meetings that included, at least in part, activities that can fairly be described as religious worship. Bronx Household,
The Second Circuit concluded that, after Good News Club, the district court did not abuse its discretion in determining that Bronx Household was substantially likely to establish that the Board of Education violated its First Amendment free speech rights. Id. at 354. While the majority in Good News Club characterized the Good News Club’s activities as “the teaching of morals and character development from a particular viewpoint,”
Faith Center’s religious activities and those in Bronx Household and Good News Club, are likewise too similar to make any
The majority opinion attempts to distinguish Bronx Household in two ways: (1) Faith Center’s activities do not contain “elements of worship” that further secular activities as in Bronx Household, but consist entirely of praise and religious worship; and (2) the forum in Bronx Household was different because the meeting was held in a school classroom after hours rather than a library meeting room during the day. Maj. Op. at 1211-12. But this reasoning is based on a faulty premise and an irrelevant issue.
1
Faith Center has never claimed that its services are mere religious worship, devoid of speech on permissible secular topics.
Apparently, this is enough for my colleagues to declare that these cases are so dissimilar that to reverse the district court here would not be creating a circuit split. They are wrong. Framing the argument in this manner repeats the same analytical mistake committed by the University of Missouri in Widmar:
The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech.
The common issue in all of these cases is what types of activities encompass a religious worship service. Faith Center explains that during its service Pastor Hattie Mae Hopkins may deliver a sermon, and the group may pray and sing religious songs. Not only are these activities the same as those at issue in Bronx Household, thus lending credence to the notion that the two cases are in fact indistinguishable, but parsing out the actual nature of the worship clarifies the answer to a question my colleagues never bother to ask: why is religious worship not speech containing viewpoints on otherwise permissible secular topics?
Singing a religious song may very well be akin to singing about morality according to religious tenets. Praying is usually speech containing praise to a higher being, but may also contain personal characterizations of one’s own life, wishes, hopes, or concerns. Pastor Hopkins’s sermon is the clearest example of religious speech which expresses a viewpoint on otherwise permissible secular topics. One can imagine the variety of subject matter that could be included in a sermon' — money, family, love,
Instead, the opinion categorizes all of Faith Center’s worship activities into one neat box and then calls it impermissible speech. Yet it never examines the nature of that speech.
2
The opinion also distinguishes Bronx Household by where the meeting rooms are located. Comparing this case to Bronx Household brings forth the inevitable question as to whether there is a difference between non-disruptive meetings held in a public meeting room during library hours and meetings held in an empty classroom or auditorium on public school grounds after school or on weekends. Despite any facial distinctions, Faith Center’s religious services do not lose their character as communication on permitted subject matter from a religious viewpoint simply because they are held in a library meeting room open to public use rather than at a school after hours. It is important to emphasize that the County has never argued that noise from Faith Center’s religious activities disturbed the peace of other library patrons elsewhere in the building. Unlike the cases in which groups were allowed on a public school campus to hold meetings, the policy did not restrict the use of the library meeting room to after hours when the stacks and reading area were closed.
The County argues that because the library is open to the public during the hours in which Faith Center wishes to hold its meetings, library patrons would come to believe that the County is endorsing Faith Center’s religious service. Looking at the context of Faith Center’s meetings, a reasonable observer, “aware of the history and context of the community and forum,” would no more believe that the County was endorsing Faith Center’s meeting than it would believe the County was endorsing the Boy Scouts, the Sierra Club, or Narcotics Anonymous. See Good News Club,
All meetings held at the Antioch Library are closed-door meetings. There is no evidence that Faith Center’s religious service was generally disruptive or that library patrons were bothered. The reasonable observer would be the library patron who knows the purpose for the meeting room, its policy, and its scope. This patron would be aware of the number of different community groups that have used the meeting room. Arguing that this informed observer would perceive a government endorsement of Faith Center’s activities just because of the possibility that he or she may hear some of what is going on in the room is akin to saying that this individual would perceive the County to be endorsing specific political speech when the East Contra Costa Democratic Club used the same room. There is simply “no realistic danger that the community would think that the [Library] was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been
The County further argues that cases like Bronx Household found no Establishment Clause violation because the meetings were held after school hours.
While community meetings are held during library hours, Faith Center’s meeting would also be open to the public. In addition, (1) the County would not be endorsing the meeting (in fact, the flyer for Faith Center’s meeting specified that it would be the meeting’s sponsor); (2) all library patrons would be on the premises voluntarily (unlike children attending public school during school hours); (3) the meeting would be held in a closed room; and (4) patrons would be aware of the policy and the types of groups that have used the meeting room. Additionally, the County would be able to enforce reasonable time, place, and manner restrictions, applicable to all groups using the meeting room, in order to maintain the academic atmosphere of the remaining library space. See Widmar,
The Supreme Court’s decisions in Good News Chib, Widmar, and Lamb’s Chapel, and the Second Circuit’s opinion in Bronx Household cannot meaningfully be distinguished from the facts presented in this case. Faith Center has demonstrated that the County’s enforcement of the policy is substantially likely to result in restricting speech based on viewpoint.
Ill
I do not question Contra Costa County’s sincere appreciation of one of our nation’s fundamental constitutional tenets — the separation of Church and State — or my colleagues’ adherence to this important principle. But the County has gone too far, and the court ignores the inherent constitutional flaws in the County’s argument. In the County’s attempt to walk the line between opening its doors to encourage its patrons to speak freely and closing its ears to religious doctrine, it has prevented its citizens from voluntarily hearing the “educational, cultural and community” views of an entire segment of the population in an accessible public space it opened for that very purpose.
Rather than adopting a policy of neutrality and placing reasonable time, place, and manner restrictions on every group that uses the library meeting rooms, the County has gone to great lengths to exclude a non-disruptive community group based on the views it wishes to express. The court fails in its analysis to adequately acknowl
I see no abuse of discretion in the district court’s grant of a preliminary injunction requiring the County to allow Faith Center the same access to the Antioch Library’s meeting room that most other groups are allowed under the County’s broad, inclusive policy. I respectfully dissent.
. The policy at issue has twice been amended while tliis litigation was pending, Faith Center Church Evangelistic Ministries v. Glover,
Contra Costa County Library
Policy for the Use of Meeting Rooms in Libraries
It is the policy of the Contra Costa County Library to encourage the use of library meeting rooms for educational, cultural and community related meetings, programs, and activities.
RELIGIOUS USE
Library meeting rooms shall not be used for religious services.
. My colleagues point to one quote during the preliminary injunction hearing in which Faith Center seemingly agreed that its activities constitute "mere worship.”
The [cjourt: What is your bottom line? Is your bottom line then the [cjourt cannot issue any injunction which has the effect of precluding, as you would call it or the courts call it, mere worship in the library rooms?
[Counsel for Faith Center]: That’s right, your honor.
This agreement does not bind Faith Center's activities to the Supreme Court's concept of "mere religious worship, divorced from any teaching of moral values” as noted in Good News Club,
. Although Widmar and Good News Club address this issue in dicta, it is essential to note that there is no such extensive Supreme Court dicta for the proposition that religious worship may be parsed from other religious speech in the context of a private group conducting meetings in places otherwise open to the public under a broad policy such as this one. The caselaw suggests the Court is clearly moving away from that notion and towards the principle that religious worship in this context cannot be distinguished from other religious speech.
. The Board of Supervisors did not even try to define the term "religious services” in the policy it enacted by resolution. Instead, it provided, "[t]he County Librarian shall promulgate rules for the implementation of this policy.” RESOLUTION NO.2004/655. No such rules have ever been brought to our attention in this litigation and we must assume that their absence from the record is not an oversight by County counsel.
. I do not agree that the County opened a limited public forum, thus allowing content-based discrimination. This case is similar to Concerned Women for America, Inc. v. Lafayette County,
. See supra § I n. 2.
. I note that the court's opinion does not address the County's Establishment Clause argument, but distinguishing Bronx Household from this case on the basis of the forum in each inevitably forces us to confront this issue.