213 F.3d 1055 | 9th Cir. | 2000
Lead Opinion
Opinion by Judge CARTER; Dissent by Judge PREGERSON.
These appeals require us to navigate carefully the shoal-infested channel between the Scylla of the First Amendment’s Free Speech Clause and the Charybdis of the First Amendment’s Establishment Clause. In attempting this task, we are fully cognizant of Justice O’Connor’s observation when engaged in a similar judicial endeavor: “Reliance on categorical platitudes is unavailing. Resolution instead depends on the hard task of judging. ... Such judgment requires courts to draw lines, sometimes quite fine, based on the particular facts of each case.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 847, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (O’Connor, J., concurring).
FACTUAL BACKGROUND
This case arises from the City of Tucson’s rejection of Patricia and Robert Gen-talas’ application to the City’s Civic Events Fund for the coverage of costs for city services for local observances of the National Day of Prayer held in one of the City’s public parks.
The City established the Fund to encourage civic events and provide a budgetary mechanism for accounting for the costs of in-kind services provided by the City for certain civic events. The Fund provides support for events “that celebrate and commemorate the historical, cultural and ethnic heritage of the City and the nation, or increase the community’s knowledge and understanding of critical issues, with the purpose of improving citizens’ quality of life; generate broad community appeal and participation ...; [or] instill civic pride in the City, state or nation.” In-kind services provided by the City include use of the parks’ event equipment, refuse containers and street sweeping.
As the organizers of the local observance of the National Day of Prayer, the Gentalas applied to the Fund for coverage of the costs of city services. The event organized by the Gentalas was part of the annual observance of the National Day of Prayer. See Lynch v. Donnelly, 465 U.S. 668, 677, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). This event was established by a
Prior to holding their event, the Genta-las submitted an application for reimbursement of costs from the Fund to the subcommittee which administers the Fund. After the event had been mounted, the City Council reviewed the subcommittee’s rejection and upheld it. Both groups cited only the Fund’s explicit policy statement that “events held in direct support of religious organizations” are not eligible for the provision of services and concerns about how the Constitution regulates church-state relations in support of the rejection of the Gentalas’ application.
The Gentalas subsequently filed this action alleging that on its face and as applied to their application the Fund’s exception tor “events held in direct support of religious organizations” violated the Free Speech, Free Exercise and Establishment Clauses of the First Amendment.
During the proceedings, the City moved to amend their answer to add state-law defenses. The district court denied the City’s motion to amend their answer.
Both the Gentalas and the City have filed appeals challenging the district court’s respective adverse rulings.
STANDARDS OF REVIEW
We review for abuse of discretion the district court’s denial of preliminary and permanent injunctive relief. See Roe v. Anderson, 134 F.3d 1400, 1402 & n. 1 (9th Cir.1998), aff'd, Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999); Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1493 (9th Cir.1996). The district court abuses its discretion when it bases its decision on erroneous legal or factual conclusions. See Roe, 134 F.3d at 1402 n. 1; Easyriders, 92 F.3d at 1493.
[T]o obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable*1061 harm increases as the possibility of success decreases.
Roe, 134 F.3d at 1402. To obtain a permanent injunction, the moving party must demonstrate “the likelihood of substantial and immediate irreparable injury and the inadequacy of remedies at law.” Easyriders, 92 F.3d at 1495 (internal quotation and citation omitted). “ ‘The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1148 (9th Cir.) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)), amended by 160 F.3d 541 (9th Cir.1998).
We also review for abuse of discretion the district court’s denial of leave to amend. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995). Although there are strong public policy justifications urging liberality in granting leave to amend, “[futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Id.
ANALYSIS
The Gentalas’Appeal
The Gentalas contend that the City’s rejection of their application for coverage of the cost of city services under the Civic Events Fund violated their free-speech rights guaranteed by the First Amendment. In response, the City argues both that there was not a free-speech violation and that even if the Gentalas’ free-speech rights were infringed, this was justified by the City’s compelling interest in avoiding an Establishment Clause violation.
Free Speech/Public Forum Issue
The Supreme Court’s decision in Rosenberger guides our resolution of the free-speech issues in this case. In Rosenberger, the Court reiterated that the principal evil from the government against which the Free Speech Clause protects the citizenry is discrimination on the basis of viewpoint when regulating expressive activities. See Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). This prohibition on viewpoint discrimination retains its vitality even when government has created the forum in which expressive activities occur. See id.; see also DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 969 (9th Cir.1999).
As an initial matter, we must determine whether the National Day of Prayer event amounted to expressive conduct protected by the First Amendment’s Free Speech Clause. According to the Genta-las’ application, they were inviting people to gather in the park for a time of praise and worship with singing and prayer. Such activity is speech within the meaning of the First Amendment. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995); Widmar v. Vincent, 454 U.S. 263, 265 n. 2, 269, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981).
Having concluded that the Gentalas were engaging in speech within the meaning of the First Amendment, we must next determine the nature of the forum to which they sought access. See Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); DiLoreto, 196 F.3d at 964. Before determining the forum’s character, however, we must clearly define the forum in question.
“The relevant forum is defined by the access sought by the speaker.” See DiLoreto, 196 F.3d at 965 (citing Cornelius, 473 U.S. at 801, 105 S.Ct. 3439). The parties and the district court have discussed the issues raised by this case as if both the City’s parks and the City’s Civic Events Fund were relevant fora. The City is correct in its assertion that the Gentalas were never denied access to the public park. They were allowed to hold their event. After having held their event, however, the Gentalas appealed the subcommittee’s rejection of their application
“‘Forum analysis divides government property into three categories: public fora, designated public fora, and nonpublic fora.’” DiLoreto, 196 F.3d at 964 (quoting Children of the Rosary v. City of Phoenix, 154 F.3d 972, 976 (9th Cir.1998), cert. denied, 526 U.S. 1131, 119 S.Ct. 1804, 143 L.Ed.2d 1008 (1999)); see also Perry Educ. Ass’n, 460 U.S. at 45-46, 103 S.Ct. 948. Because the Fund is not a source of funding for expressive activities held in trust since time immemorial, we conclude that it is not a traditional public forum. See Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948. Because the Fund’s implementing policy states on its face that the Fund is limited to certain topics and certain speakers and because the record developed by the parties demonstrates that the Fund has been managed in a selective manner, we cannot conclude that the City has designated the Fund as a forum open to general expressive activity. See Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 391-92, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Cornelius, 473 U.S. at 802, 105 S.Ct. 3439; DiLoreto, 196 F.3d at 965. Following the Supreme Court’s lead in Rosenberger, we conclude that the Fund is a limited public forum that has been opened to support the expressive activities of certain groups speaking about certain topics. See Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510; see also DiLoreto, 196 F.3d at 965, 967.
The dissent argues, relying on National Endowment for the Arts v. Fin
In maintaining the boundaries and integrity of the Fund, the City will, of necessity, engage in discrimination on the basis of the content of applicants’ speech. In managing this forum,' however, the City’s decisions to exclude speakers must be reasonable in light of the Fund’s purposes. See Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510; DiLoreto, 196 F.3d at 965, 967. Thus, content-based discrimination is legitimate only if conducted consistent with the Fund’s purposes, whereas any discrimination between applicants on the basis of viewpoint is forbidden. See Board of Regents of the Univ. of Wis. Sys. v. Southworth, - U.S. -, 120 S.Ct. 1346, 1356-57, 146 L.Ed.2d 193 (2000); Rosenberger, 515 U.S. at 829-30, 115 S.Ct. 2510; DiLoreto, 196 F.3d at 965, 967.
The Fund’s implementing policy states that the Fund has been created, in part, to
The policy explicitly excludes those “events held in direct support of religious organizations” and the City relied upon this exemption-when rejecting the Genta-las’ application. The Gentalas’ application indicates that a free-will offering was to be taken at the end of the event. Although such an offering would probably be small in relation to the cost of mounting the event,
Although we have concluded that reimbursement of the event’s costs under the Fund was not direct support of religion in a constitutional sense, we cannot conclude that the City acted in bad faith when deciding that the National Day of Prayer event fell within the Fund’s exception. See Cornelius, 473 U.S. at 808, 105 S.Ct. 3439 (“The Government’s decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation.”). Even if the exclusion was reasonable, however, the City could not reject the Gentalas’ application based on their viewpoint as speakers. See Rosenberger, 515 U.S. at 830, 115 S.Ct. 2510; DiLoreto, 196 F.3d at 969. In other words, the Gentalas’ application could not be denied merely because it would bring a religious perspective to an otherwise permissible conversation. See Rosenberger, 515 U.S. at 831, 115 S.Ct. 2510; Lamb’s Chapel, 508 U.S. at 393-94, 113 S.Ct. 2141.
As noted previously, the Supreme Court in Rosenberger examined a fund established by the University of Virginia to cover the printing costs for publications from approved student groups. See Rosenberger, 515 U.S. at 824, 115 S.Ct. 2510. The University excluded from its scheme those publications written by groups engaging in “religious activities.” Id. at 825, 115 S.Ct. 2510. Wide Awake Productions, a student group which published a maga
The National Day of Prayer event was, in part, a civic gathering drawing the community together to address issues of community-wide concern — e.g., homelessness, education, law enforcement. The nature of the event fits within the general purposes of the forum. Moreover, there is no indication from the record that if a local public school wanted to hold a fund-raiser or if a group of social service providers wanted to hold a rally on behalf of homeless people that the City would have denied their applications to the Fund.
The record also indicates that the City had approved an application to the Fund by the Tucson Festival Society and Carrillo School for a Las Posadas festival. The festival is a re-enactment of a story from Christian folklore — namely, Joseph and Mary’s search for lodging in Bethlehem prior to the birth of Jesus. The City approved funding for this “religious-related” event because it was “art” and was “not held to directly support a religious organization.” Because the Las Posadas festival re-enacts an event connected with the Christian tradition, it would provide the same kind of diffuse support for Christianity writ large as would the National Day of Prayer event. Thus, the City decided that artistic expression was a sufficiently indirect way of engaging a religious tradition — and therefore an appropriate activity in the forum, but that public prayer was too direct a way of engaging a religious tradition — and therefore an inappropriate activity in the forum.
Although we can sympathize with the difficult judgment calls the City is required to make when reviewing applications to the Fund, we conclude that its rejection of the Gentalas’ application was impermissible viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. See Rosenberger, 515 U.S. at 829-831, 115 S.Ct. 2510; Lamb’s Chapel, 508 U.S. at 392-94, 113 S.Ct.2141. Moreover., in light of our discussion of the Las Posadas application, we conclude that distinguishing between those who speak about religion who are directly supporting a religious organization and those who speak about religion who are not will al
Establishment Clause Issue
The City contends that its rejection of the Gentalas’ application was justified in light of the City’s compelling interest in obeying the strictures of the First Amendment’s Establishment Clause.
A majority of the Justices of the Supreme Court have never agreed as to the precise meaning and relevance of the history of the Establishment Clause. The Court has agreed, however, that the Establishment Clause
means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or pro- ' fessing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
Everson v. Board of Educ. of Ewing Tp., 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947). At the same time, the Supreme Court has repeatedly stated that government may acknowledge the role of religion in the life of its citizenry and incorporate some religious expression into public life. See Lynch, 465 U.S. at 674-78, 104 S.Ct. 1355; Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The “central lesson” of the Supreme Court’s Establishment Clause jurisprudence “is that ... governmental programs” must maintain “neutrality towards religion.” Rosenberger, 515 U.S. at 839, 115 S.Ct. 2510. On a number of occasions, the Court has concluded that governmental programs which distribute benefits on religiously neutral grounds do not run afoul of the Establishment Clause merely because they provide incidental benefits to organizations that seek to engage in religious expression. See id.; Capitol Square, 515 U.S. at 762-63, 115 S.Ct. 2440; Widmar, 454 U.S. at 273-74, 102 S.Ct. 269.
When determining whether the relationship between religious expression and the government is permissible under or violative of the Establishment Clause, “it [is] useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion.” Lynch, 465 U.S. at 679, 104 S.Ct. 1355 (citing Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)). At the same time, we are not bound “to any single test or criterion in this sensitive area.” Id.
The City’s Fund, which exists to support and encourage events celebrating the history and culture of the City’s residents, undeniably serves a secular interest. See Lamb’s Chapel, 508 U.S. at 395, 113 S.Ct. 2141; Widmar, 454 U.S. at 271, 102 S.Ct.
The City’s Fund also does not have the primary or principal effect of advancing religion. The Supreme Court has concluded that a state university’s provision of a classroom to a student Bible study club for its meetings constituted only negligible aid for such devotional exercise and thus was not constitutionally impermissible. See Widmar, 454 U.S. at 273, 102 S.Ct. 269. In Lynch, Chief Justice Burger, writing for the majority, concluded that a nativity scene, while religiously significant by itself, when placed by the city government among secular symbols such as “candy-striped poles ..., carolers, [and] cutout figures representing such characters as a clown, an elephant, and a teddy bear” in the business district of the City of Paw-tucket, Rhode Island, did not substantially support any religion in a constitutionally problematic manner. Lynch, 465 U.S. at 671, 687, 104 S.Ct. 1355.
The dissent asserts some observers may perceive that the City has aligned itself with the Christian faith by including a Christian symbol in its display and that this serves to advance religion. We can assume, arguendo, that the display advances religion in a sense; but our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action. The Court has made it abundantly clear, however, that “not every law that confers an ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.” Committee for Public Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 771, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973).
Id. at 683, 104 S.Ct. 1355. Similarly, here, even if the City’s reimbursement of costs for the National Day of Prayer event provided some support for theism over its opposite, or for Christianity over competing world views, the support provided by the City was neither substantial nor direct enough to amount to advancement of religion under the Supreme Court’s Establishment Clause jurisprudence.
In more recent cases involving private religious speech in government-created fora, the Supreme Court has focused on whether the religious expression occurring in the forum has been endorsed or favored by the government when determining whether there is an Establishment Clause violation. See Capitol Square, 515 U.S. at 762-65, 115 S.Ct. 2440; Rosenberger, 515 U.S. at 839-40, 115 S.Ct. 2510; Lamb’s Chapel, 508 U.S. at 393, 113 S.Ct. 2141. In Rosenberger, the most legally and factually analogous case to the one before us, the Court reviewed the constitutionality of the University of Virginia’s refusal to cover the printing costs of a student publication, based on the publication’s religious perspective, due to the University’s concern that covering the costs would violate the Establishment Clause. See Rosenberger, 515 U.S. at 822-23, 115 S.Ct. 2510. The Court concluded that the University would not violate the Establishment Clause by covering the publication’s printing costs when using “neutral criteria and evenhanded policies” to determine which applicants would have their costs covered. See id. at 839, 845-46, 115 S.Ct. 2510.
The first distinction between Rosenberger and the present case urged by the City is that the publication in Rosenberger was not produced by a “religious organization,” see id. at 826 & 844, 115 S.Ct. 2510, and that the event for'which the Gentalas sought in-kind services was. Assuming that the City is correct that the organization responsible for managing the National Day of Prayer is a religious organization, we conclude that this factual difference is an insufficient basis for distinguishing Rosenberger. In Widmar, the Supreme Court reviewed the University of Missouri at Kansas City’s decision to for
In a similar vein, the dissent relies on the Gentalas’ original application for reimbursement from the Fund, and attachments thereto, which state that the National Day of Prayer event was being organized for “Tucson Christians.” The district court stated that the National Day of Prayer event was open to the public and nothing in the record or the comments by the City Council which reviewed the Gen-talas’ application after the event had been held indicates that the event excluded non-Christians from the event. The fact that a government-subsidized event which remains open to the public is organized for and by a particular religious group is insufficient to create an Establishment Clause violation. See Widmar, 454 U.S. at 265 n. 2, 102 S.Ct. 269 (noting that a Christian group’s meetings were “open to the public”). Finally, the dissent notes that all the speakers at the event were Christians to support the charge of an Establishment Clause violation. In Ro-senberger, however, the publication which the University of Virginia refused to subsidize — a decision the Supreme Court rebuked — was a magazine with an explicit and obvious Christian perspective on the issues discussed. See Rosenberger, 515 U.S. at 825-26,115 S.Ct. 2510.
In Widmar and Rosenberger, the Supreme Court was much less concerned about the religious identity or message of the speakers being subsidized by the state than it was about the nature of subsidy being offered. The Court’s concern in these cases is whether the support offered by the state is part of a neutral program available to a large range of speakers or whether it is a program designed and administered to further religious interests in some direct way. The City and the dissent would have us read the Establishment Clause in a way that forbids religious groups and religious speakers from participating in and taking advantage of neutral government programs available to citizens motivated by non-sectarian concerns. Such a theory of the Establishment Clause implicitly denigrates those citizens who seek to operate in the public realm and engage the larger culture in light of their religious convictions and' fails to take seriously the constitutional values enshrined in the Free Speech and Free Exercise Clauses.
The Rosenberger Court focused extensively on whether the payments from the University of Virginia’s fund were being made directly to the student organization. See id. at 842-43, 115 S.Ct. 2510. We agree with the City and the district court that the Rosenberger Court was careful to explain that its conclusion might have been different if the scheme under review had involved “a tax levied for the direct support of a church,” id. at 840, 115 S.Ct. 2510, if the money available could be used for “unlimited purposes,” id. at 841, 115 S.Ct. 2510, or if the program made
The City also argues that this case is different from Rosenberger because the Fund is created through general revenue taxes and the printing-cost fund in Rosen-berger was created through the assessment of student fees. The Supreme Court did state in Rosenberger that its decision “cannot be read as addressing an expenditure from a general tax fund.” Rosenberger, 515 U.S. at 841, 115 S.Ct. 2510. While this is a close question, we conclude that the City presses this difference as a formal distinction whereas the Court used it as a functional one. Both student-fee and general-tax assessments are mandatory on the relevant population. See id. at 840, 115 S.Ct. 2510 (treating the student-fee as a mandatory assessment). Thus, it cannot be the mandatory character of a general tax that would give rise to different considerations under the Establishment Clause. A plurality of the Court distinguished between a student fee and a general tax based on the limited purposes for which the student fees could be used and the neutrality of the program under which the student fees were distributed. See id. at 840-41, 115 S.Ct. 2510. Given that the Fund was used for a limited purpose, that the City maintains a great deal of discretionary control over the Fund, and that the Fund is not administered to favor religion, we conclude that the Fund is more like the student-fee generated fund in Rosenberger than a general-tax generated fund.
Finally, the Rosenberger Court noted that “[t]he University has taken pains to disassociate itself from the private speech involved in this case.” Rosenberger, 515 U.S. at 841, 115 S.Ct. 2510. Whether private religious speech would be mistaken for the speech of the government is a central inquiry under the Establishment Clause. See id.; Widmar, 454 U.S. at 274, 102 S.Ct. 269. The City and the district court relied on the presence of City employees operating lighting and sound equipment to establish that the National Day of Prayer event could be mistakenly interpreted as the speech of the City. In light of Widmar’s teaching that allowing religious groups to meet on campus is insufficient to “confer any imprimatur of state approval,” we conclude that the presence of City employees, without more, does not create such an imprimatur. See Widmar, 454 U.S. at 274 & n. 14, 102 S.Ct. 269; see also Mergens, 496 U.S. at 249-50, 253, 110 S.Ct. 2356.
The record also demonstrates, however, that any event having costs covered by the Fund must “acknowledge through event advertising and an announcement during [the] event that the City has contributed services to the event.” In Capitol Square, 515 U.S. at 763, 115 S.Ct. 2440, a plurality of the Court rejected the government’s argument that a cross erected by a private group and placed in close “proximity to the seat of government” would violate the Establishment Clause because it “may produce the perception that the cross bears the [government’s] approval.” The plurality stated that government endorses religious expression in violation of the Establishment
Because we have concluded that the City engaged in viewpoint discrimination in violation of the First Amendment when rejecting the Gentalas’ application to the Fund and that the exception for events which directly support religious organizations is unconstitutional on its face, and that the Establishment Clause does not provide a compelling interest justifying that discrimination, it is now apparent that the district court based its determination that the Gentalas were unlikely to succeed on the merits of this case on an erroneous legal conclusion. See Roe, 184 F.3d at 1402; Easyriders, 92 F.3d at 1493. Moreover, because the Gentalas’ expressive freedoms were violated as a result of the City’s unconstitutional activities, the Gen-talas suffered an irreparable injury. See S.O.C., 152 F.3d at 1148.
Accordingly, we reverse the district court’s denial of the Gentalas’ motions for preliminary and permanent injunctions and we remand for further proceedings. The City’s Cross-appeal
The City has also filed a cross-appeal contending that the district court abused its discretion by denying its motion for leave to amend its answer to assert a defense under the Arizona constitution. In Widmar, the Supreme Court concluded that Missouri’s state constitutional defenses were insufficiently compelling to override free-speeeh interests protected by the Federal Constitution. See Widmar, 454 U.S. at 276, 102 S.Ct. 269. Because we have concluded that the City’s denial of the Gentalas’ application would have violated the Free Speech Clause, we conclude that the City’s proposed amendment would have been futile and that the district court did not abuse its discretion by denying it leave to amend its answer. See id.; Bonin, 59 F.3d at 845.
Accordingly, we affirm the district court’s denial of the City’s motion for leave to amend its answer.
CONCLUSION
While the idea of the government subsidizing a public prayer service raises obvious Establishment Clause concerns, the idea of excluding religious speakers from neutral government programs because of their identity and their message raises equally compelling Free Speech and Free Exercise questions. These principal guarantees of the First Amendment require the government to juggle conflicting obligations toward its citizens. On the one hand, the Establishment Clause obligates government to inspect vigilantly its practices and policies to ensure that they do not create the impression that government
We do, however, offer some general guidance to the City of Tucson and other governmental decision-makers based on our examination of this appeal and our investigation of the relevant Supreme Court decisions in this area. Where the government has created a forum for expressive activities, and a private speaker meets the criteria for access to the forum, the speaker cannot be excluded merely because the speaker’s expression addresses religion or adopts a religious perspective on an otherwise permissible topic. In addition, where the governmental forum includes the provision of financial subsidies or in-kind services, as long as those services are provided to all speakers in the forum on a religiously neutral basis, provision of such subsidies or services to a speaker with a religious perspective will not violate the Establishment Clause.
Our resolution of the issues in a manner different from the City of Tucson and the district court should not be construed as to cast any doubt that the City and the court took their obligations seriously and carefully considered their conclusions. After reviewing the particular facts of this appeal, we have merely drawn the lines between the guarantees of the Free Speech and Establishment Clauses in a different fashion than did the City and the district court.
The City shall bear the costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
. According to the Gentalas’ application to the Fund, the services for which they sought coverage amounted to less than $500.
. Because we conclude that the City violated the Gentalas’ free-speech rights and that the Establishment Clause does not provide a sufficiently compelling reason to justify that violation in the context of this case, we do not address the Gentalas’ other constitutional claims.
. As the dissent correctly notes, the terms "designated public forum,” "limited public forum,” and "nonpublic forum” have not always been used with precision. See DiLoreto, 196 F.3d at 965 & n. 4. A "designated public forum” is a forum which the government, through its explicit and intentional conduct, has designated as a forum generally open to the public for expressive activity. See Perry Educ. Ass’n, 460 U.S. at 46-47, 103 S.Ct. 948; Widmar, 454 U.S. at 267-68 & n. 5, 270, 102 S.Ct. 269; DiLoreto, 196 F.3d at 965 & n. 4. The Supreme Court has referred to a forum opened by the government to certain speakers or topics as a "limited public forum,” see Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510; the Ninth Circuit has referred to such a forum as a "nonpublic forum open for a limited purpose,” see DiLoreto, 196 F.3d at 965-66. Because content-based discrimination is not allowed absent a compelling interest in either a traditional or designated public forum, see Perry Educ. Ass’n, 460 U.S. at 54-55, 103 S.Ct. 948, and is permissible in fora opened for more limited purposes to preserve the nature of the forum, see Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510; Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948; DiLoreto, 196 F.3d at 965-66, the Ninth Circuit’s terminology may lead to less conceptual blurriness. Regardless of the terminology used to describe the forum, however, the Supreme Court and the Ninth Circuit agree that governmental discretion in managing the more selective forum is bounded by the same considerations— reasonableness in light of the forum’s purpose and viewpoint neutrality. See Rosenberger, 515 U.S. at 829-30, 115 S.Ct. 2510; Perry Educ. Ass’n, 460 U.S. at 48-49, 103 S.Ct. 948; DiLoreto, 196 F.3d at 967, 969. Thus, because the distinction between a limited public forum and a nonpublic forum is a semantic distinction without an analytic difference, and because the Rosenberger Court referred to the fund it was analyzing as a limited public forum, a fund we conclude is most analogous to the Fund at issue in this case, we will continue to use that terminology. See Finley, 118 S.Ct. at 2178 (stating the fund at issue in Rosenberger was a "limited public forum”); Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510 (stating the fund being analyzed by the Court was a "limited public forum”); DiLoreto, 196 F.3d at 965 (noting that the Rosenberger Court had used the term "limited public forum”).
. Although the Supreme Court’s decision in Widmar is instructive in our analysis of the issues on appeal, the distinction between discrimination permissible in traditional and designated public fora on the one hand and in limited and nonpublic fora on the other prevents Widmar from controlling the present case. The Supreme Court classified the meeting space in Widmar as a designated public forum. See Widmar, 454 U.S. at 267-68 & n. 5, 270, 102 S.Ct. 269. The Court then concluded that prohibiting groups from using classrooms as meeting space "based on the religious content of the group's intended speech” was content-based discrimination that could only be justified by a compelling interest and a narrowly tailored regulation. Id. at 276, 102 S.Ct. 269. If the Fund were a traditional or designated public forum, the exception for religious speech would be an impermissible content-based discrimination. See id. at 276, 102 S.Ct. 269. Because the Fund is, at most, a limited public forum opened for certain speakers and topics, Wid-mar is inapplicable to the free-speech analysis and we must determine whether the exception discriminates on the basis of viewpoint on its face or as applied to the Gentalas by the City.
. For this reason, the dissent's reliance on DiLoreto is misplaced. In DiLoreto, this Court upheld the School District’s refusal to post the text of the Ten Commandments on Downey High School's baseball field fence. See DiLoreto, 196 F.3d at 962. The Court concluded that the refusal was permissible content-based discrimination, not because of the religious character of the posting per se, but because thé forum itself had been limited to business advertising. See id. at 969. (“Mr. DiLoreto’s ad was not a statement addressing otherwise-permissible subjects from a religious perspective....”) Because the Genta-las’ event fit .the religiously neutral criteria for inclusion within the forum created by the City’s Fund, this case is distinguishable from DiLoreto.
. The prior year, the free-will offering raised $393.84 and the expenses associated with the event amounted to $404.54.
. Although both the Rosenberger and Lamb's Chapel Courts concluded that the government had engaged in viewpoint discrimination, in neither opinion was there any discussion of other speakers being allowed access to the forum to discuss the same issues from a nonreligious perspective. In Lamb’s Chapel, the Court was satisfied that the school board had engaged in viewpoint discrimination where the record was silent on the question of whether the subject matter seeking to be addressed by the religious speaker was forbidden, but the record clearly established that the film series was rejected because of its religious perspective. See Lamb’s Chapel, 508 U.S. at 393-94, 113 S.Ct. 2141.
. Obeying the mandate of the Establishment Clause is undeniably a compelling state interest. See Capitol Square, 515 U.S. at 761-62, 115 S.Ct. 2440; Lamb’s Chapel, 508 U.S. at 394, 113 S.Ct. 2141.
. In her concurrence, Justice O’Connor identifies two other reasons why a fund created by student fees should be analyzed differently than a fund created by general tax assessments. See id. at 851-52, 115 S.Ct. 2510. Justice O'Connor observes that the fund in Rosenberger "belongs to the students” because it is administered by them and is used to benefit those who paid into the fund. See id. Given that the Fund is administered by a City Council composed of duly-elected representatives of the residents of the City of Tucson to provide civic events for the benefit of the residents of the City of Tucson, we conclude that it belongs to the City in a similar fashion. Justice O'Connor also observes that students may have a First Amendment right to "opt-out” of student-fee assessments not available to citizens who have to pay tax assessments. See id. at 851, 115 S.Ct. 2510. This is a distinction between the Fund in Rosenberger and the City’s Fund, but it is a distinguishing characteristic which only garnered one vote from the Court. Moreover, a majority of the Court has subsequently rejected such an argument with respect to viewpoint-neutral subsidy programs. See Southworth, 120 S.Ct. at 1349-50. Accordingly, we cannot find it a persuasive rationale for why this case should be resolved differently than the majority resolved Rosenberger.
. It is important, when considering how the situation of the National Day of Prayer event having costs covered by the City’s Fund would be interpreted by observers, to note that most of the attendees of the event were probably adults. See Marsh, 463 U.S. at 792, 103 S.Ct. 3330 (stating that an adult is "not readily susceptible to 'religious indoctrination,' or peer pressure”) (citations omitted); see also Widmar, 454 U.S. at 274 n. 14, 102 S.Ct. 269 (stating that "[u]niversity students ... are less impressionable than younger students” and should be able to appreciate the government's neutrality toward religion even when a religious group is benefitting under a university program); Mergens, 496 U.S. at 250-51, 110 S.Ct. 2356 (stating that high school students are also able to distinguish between a government endorsement of religion and a neutral governmental policy that happens to aid religion).
Dissenting Opinion
dissenting:
I dissent. The district judge got it right. Taxpayer funds may not be used to support a religious organization. And that is undisputedly what Appellants’ organization is — a religious organization. See Appendix at 3, 5.
As the majority opinion notes, resolution of cases like this one “depend[ ] on the hard task of judging.” See supra at 1059 (quoting Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 847, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (O’Connor, J., concurring)). Indeed, “[s]uch judgment requires the court to draw lines, sometimes quite fine, based on the particular facts of each case.” Id. (emphasis added). The facts of this case are crucial and should not be diluted.
Appellants’ organization, the Tucson National Day of Prayer Committee, applied for financial support from a fund largely consisting of taxpayer money for an event whose stated purpose was to “organize an annual gathering of Tucson Christians.” See Appendix at 3, 5. Appellants did not organize a National Day of Prayer for all Tucson residents of all faiths; their event was for Tucson Christians only. See id. Moreover, Appellants’ application for funding clearly stated that an individual’s membership in their organization, the Tucson National Day of Prayer Committee, would be terminated if the individual would not “pledge” to the Christian belief. Id. In fact, at no time during oral argument or in their briefs on appeal have Appellants denied that their organization is a “religious organization.”
The constitutionality of the congressionally established National Day of Prayer is not at issue here. Appellants’ event, for
Thus, this case is not about the constitutionality of the National Day of Prayer. The only issue presented in this case is whether the City of Tucson violated the Constitution by denying Appellants taxpayer funds to subsidize the cost of their event. Because I believe the City acted clearly within the bounds of the Constitution, I would affirm the well-reasoned decision of the district court.
I
Appellants are active sponsors and organizers of the Tucson National Day of Prayer. Appellants requested permits and funding from the City of Tucson (“the City”) to hold the event in the City’s De-meester Outdoor Performance Center (“Demeester bandshell”). Appellants obtained the necessary permits and the event was held as planned, but the City denied Appellants’ request for funding. As a result, Appellants’ organization had to pay approximately $340 to rent equipment used for production of the event.
The City allows members of the public to use its parks for a wide variety of purposes. The Demeester bandshell is located in Tucson’s Reid Park. Pursuant to Tucson Code sections 21-14 and 21-16, specific fees are charged for the use of event equipment, park bandshells, and other facilities owned by the City. Grants are available from the City’s Civic Events Fund, on a limited basis, to help subsidize the cost of civic events. The Civic Events Fund consists of City money from the general fund appropriated by the City’s Mayor and Council each year. The source of the funds includes tax revenue, user fees, and other sources of recurring and non-recurring revenue. Sponsors of events at Reid Park may request a grant from the Civic Events Fund through the City’s' Civic Events Subcommittee (“Subcommittee”).
For the 1997 Tucson National Day of Prayer, the Appellants obtained permits to hold the prayer event in the Demeester bandshell. The event was carried on as planned, and Appellants do not allege that the City’s actions impeded free speech at the event in any way. Rather, Appellants allege that the City discriminated against the organization by refusing to support the Tucson National Day of Prayer financially with funds from the Civic Events Fund. They are mistaken.
The Civic Events Fund exists to encourage and support civic events that celebrate the City’s heritage, increase knowledge and understanding of issues that improve citizens’ quality of life, generate community appeal and participation, contribute to tourism, or are otherwise identified as unique community events. A number of conditions must be met for an event to be eligible for City - support. These conditions,, which are listed in the City’s “Civic Event Policy Statement and Evaluation Criteria” (“Policy”) include: (1) the event must be sponsored by a non-profit organization or by individuals conducting the event on a non-profit basis; (2) the event must be open to the public and cannot discriminate against persons in any manner; and (3) the event sponsor must maintain liability insurance, maintain a financial accounting of the event, and acquire necessary permits from the City. The Policy farther indicates that “events held in direct support of religious organizations” are not eligible for funding from the Civic Events Fund.
The City does not automatically award grants to all eligible events pursuant to the City’s Civic Event Policy. Once the Sub
In this case, Appellants’ event was designed to directly benefit their religious organization. Although Appellants argued that members of all faiths could have participated in the event, according to Appellants’ own application,
The majority finds that the City’s refusal to fund the Tucson National Day of Prayer violated the First Amendment. I disagree for several reasons. First, the Civic Events Fund is not a limited public forum as the majority asserts. In fact, the majority’s analysis of this case using “forum doctrine” is not appropriate given the nature of the Civic Events Fund. Second, the majority opinion disregards Supreme Court precedent which establishes that there is an important distinction between a government’s refusal to fund protected activity and a government’s actual denial of a person’s constitutional rights. See e.g., National Endowment for the Arts v. Finley, 524 U.S. 569, 118 S.Ct. 2168, 2179, 141 L.Ed.2d 500 (1998); Rust v. Sullivan, 500
II
This is not a case involving the denial of “equal access” to City facilities; rather, it simply involves the denial of taxpayer funding. If the City had denied Appellants access to the Demeester bandshell, which is a traditional public forum, this would be a different case. But Appellants were not denied access to the bandshell. Thus, their Free Speech claim can succeed only if they can demonstrate that the Civic Events Fund is a type of forum protected by the First Amendment.
The majority contends that the Fund is a limited public forum
A. The Civic Events Fund is Not a Forum.
The Supreme Court has identified three types of fora: the traditional public forum, the designated public forum, and the nonpublic forum. See Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 1641, 140 L.Ed.2d 875 (1998). As explained in Forbes, if governmental property is not a traditional public forum or a designated public forum, it is either a nonpublic forum or is not a forum at all. See id. at 1641. I would find that Civic Events Fund is not a forum at all: (1) because the City’s administration of the Civic Events Fund necessarily requires “editorial discretion,” and (2) when “government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.” Rosenberger, 515 U.S. at 833, 115 S.Ct. 2510.
The Court has recognized that when a government’s administration of public property requires “editorial discretion,” it should not be subject to review to determine if it is engaging in viewpoint discrimination. See Forbes, 118 S.Ct. at 1639-40; Alan E. Brownstein, Alternative Maps for Navigating the First Amendment Maze, 16 Const. Comment. 101, 135 (1999); see also Finley, 118 S.Ct. at 2184 (Scalia, J., concurring); Fordham Univ. v. Brcnvn, 856 F.Supp. 684, 701-02 (D.D.C.1994). The Supreme Court’s examples of such discretionary decisions include: a university’s selection of a commencement speaker, a public institution’s selection of speakers for a lecture series, or a television broadcaster’s programming selections. See Forbes, 118 S.Ct. at 1639. In Forbes the Court explained that these actions “by [their] nature will facilitate the expression of some viewpoints instead of others.” Id.; see also Chicago Acorn v. Metropolitan Pier and Exposition Auth., 150 F.3d 695, 701 (7th Cir.1998) (noting that “[wjhenever government is in the business of speech, whether it is producing television programs ... or making grants ... the exercise of editorial discretion is inescapable”)
Moreover, the grant program in the present case is analogous to the grant program in Finley, which the Supreme Court concluded was not a limited public forum. See 118 S.Ct. at 2179. In Finley, the issue was whether the statute, requiring the National Endowment for the Arts (“NEA”) to consider “decency” when awarding grants, violated the First Amendment. See id. at 2178-79. In analyzing the NEA grant program, the Court did not apply forum doctrine. See id. The Court explained that such analysis was not appropriate because when the government awards NEA grants, it “does not indiscriminately ‘encourage a diversity of views from private speakers.’ ” Id. at 2178 (distinguishing Rosenberger). Consequently, the Court noted that the subjective and competitive grant process in Finley was significantly different from limited public forum cases because those cases involved “comparably objective decisions on allocating public benefits, such as access to a school auditorium or a municipal theater.” Id. (distinguishing Rosenberger and Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993)). Consequently, the Court concluded that the grant process in Finley was not a limited public forum and that the statute did not violate the First Amendment.
Like the grant process at issue in Finley, the City of Tucson did not create the Civic Events Fund to “indiscriminately ‘encourage a diversity of views from private speakers.’ ” Finley, 118 S.Ct. at 2178 (quoting and distinguishing Rosenberger, 515 U.S. at 834, 115 S.Ct. 2510). And similar to the program in Finley, the process of awarding grants in this case is not an “objective” process. See Finley, 118 S.Ct. at 2178 (distinguishing selective grant process in Finley from Lamb’s Chapel and other cases that involved “comparably objective decisions on allocating public benefits, such as access to a school auditorium or a municipal theater”). The Subcommittee in the present case evaluates organizations’ applications for funding and chooses which events to fund based on a number of factors. As noted above, not all eligible events receive financial support from the Civic Events Fund. Accordingly, because the City did not create the Civic Events Fund to “indiscriminately ‘encourage a diversity of views from private speakers,’ ” analysis under the forum doctrine is not appropriate. Finley, 118 S.Ct. at 2178.
Additionally, in concluding that the Civic Events Fund is a limited public forum, the majority disregards the critical distinction between a government’s decision not to fund protected activity and the actual deni
may “selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, ‘the [g]overnment has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. ’ ”
Finley, 118 S.Ct. at 2179 (quoting Rust, 500 U.S. at 193, 111 S.Ct. 1759) (emphasis added).
The majority does not explain why the important and “ ‘basic difference between direct state interference with a protected activity and state encouragement of an alternative activity1 ” is not relevant in the present case. Rust, 500 U.S. at 193, 111 S.Ct. 1759 (quoting Maher, 432 U.S. at 475, 97 S.Ct. 2376). Nor does the majority explain how, in light of the Court’s instruction that “[a] refusal to fund protected activity, without more, cannot be equated with a disposition of a ‘penalty’ on that activity,” id., the City has burdened Appellants’ free speech rights. Consequently, I cannot conclude that simply because the City of Tucson elects to selectively fund civic events, its refusal to fund Appellants’ event violated the. First Amendment.
Furthermore, it is clear that the City was justified in excluding events that were in direct support of religious organizations because “when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.” Rust, 500 U.S. at 194, 111 S.Ct. 1759. Events that obtain funding from the City of Tucson are advertised as having received City funding, and City employees operate light and sound equipment at these events. Additionally, during these events an announcement is made acknowledging that the City contributed to the services at the event. The majority argues that the City could have modified the policy to “decry any endorsement by the City” when such events are advertised. Supra -at 1072. But the City should not have to engage in such a practice. The City created the Civic Events Fund and is entitled to obtain recognition that it participates as a co-sponsor of civic events in Tucson. See Rosenberger, 515 U.S. at 833, 115 S.Ct. 2510 (“when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes”) (citing Rust, 500 U.S. at 194, 111 S.Ct. 1759).
As Justice Sealia recently noted, “[i]t is preposterous to equate the denial of taxpayer subsidy with measures ‘aimed at the suppression of dangerous ideas.’ ”. Finley, 118 S.Ct. at 2183 (Sealia, j., concurring) (quoting Regan, 461 U.S. at 550, 103 S.Ct. 1997). Here, there is no evidence that the City enacted the Policy to suppress speech or a particular viewpoint. The City excluded events that directly support reli- . gious organizations only to ensure that it complied with the Establishment Clause. This exclusion was permissible and did not violate the Free Speech Clause of the First Amendment.
Contrary to Appellants’ argument, the Supreme Court’s recent decision in Rosen-berger does not negate the well-established precedent discussed supra. In Rosenber-ger, the Court found that by subsidizing publications of student organizations with money from the Student Activity Fund, the University of Virginia had intended to “open a forum for speech” and “encourage a diversity of views from private speakers.” See id. at 834, 887, 115 S.Ct. 2510. The Court accordingly concluded that the University had created a limited public forum. See id. at 837, 115 S.Ct. 2510. Because the University had created a limited public forum, the Court held that the University could not exclude all publications with religious editorial viewpoints from grant eligibility. See id. Rosenber-ger is distinguishable for several reasons.
First, the funding process in the present case is more akin to the grant process in Finley than the process used in Rosenber-ger. In Rosenberger, funding was available for all student organizations’ publications that met the stated criteria and were “related to the educational purposes of the University,” except those with religious editorial viewpoints. Id. at 824, 115 S.Ct. 2510. Here, the City provides financial support only to the events that meet the Policy’s criteria and that the Subcommittee determines are most deserving. Thus, the City’s grant program is quite different from the objective grant process at issue in Rosenberger.
Second, the Court emphasized in Rosen-berger that the case did not involve “religious organizations.” See id. at 844, 115 S.Ct. 2510. The Court noted that “if the State pays a church’s bills it is subsidizing it, and we must guard against this abuse.” Id. But the Court recognized that subsidizing a religious organization was not a “danger” in Rosenberger because “the student publication is not a religious institution” and “it is not a religious organization as [defined] in the University’s own regulations.” Id. In contrast, it is undisputed that Appellants’ organization is a religious organization. See Appendix at 1, 3, 5.
Third, unlike the City in the present case which co-sponsors civic events, the University in Rosenberger was not promoting its own message.
Fourth and most importantly, taxpayers did not fund the Student Activity Fund in Rosenberger.
[T]he $14 paid each semester by the student is not a general tax designed to raise revenue for the University.... Our decision then cannot be read as addressing an expenditure from a general tax fund. Here, the disbursements from the fund go to private contractors for the cost of printing that which is protected under the Speech Clause of the First Amendment. That is a far cry from a general public assessment designed and effected to provide financial support for a church.
Id. at 841, 115 S.Ct. 2510 (emphasis added). Justice O’Connor’s concurrence in Rosenberger also highlighted this point, stating that “[p]ublic funds may not be used to endorse the religious message,” and “[t ]hese decisions [ ] provide no precedent for the use of public funds to finance religious activities.” Id. at 847, 115 S.Ct. 2510 (O’Connor, J., concurring) (emphasis added). Thus, the Court sent a very clear message in Rosenberger that taxpayer money may not be used to pay a religious organization’s bills. Indeed, Rosenberger did'not change this rule — it reinforced it.
III
Even assuming that the City’s Policy violated the Free Speech Clause, the Policy is not unconstitutional if it serves a compelling state interest and is narrowly drawn to achieve that end. See Widmar v. Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). The City of Tucson enacted the Policy that excludes events which directly support religious organizations to avoid violating the Establishment Clause. As even the majority concedes, compliance with the Establishment Clause is a compelling state interest. See supra note 9 at 1066 (citing Capitol Square Rev. and Advisory Bd. v. Pinette, 515 U.S. 758, 761-62, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) and Lamb’s Chapel). Because City demonstrated that the Policy was necessary to avoid violating the Establishment Clause, it is constitutional.
The Establishment Clause forbids “sponsorship, financial support, and active involvement in religious activity.” Committee for Public Education & Religious
this Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution’s affairs.
Id. at 590, 109 S.Ct. 3086 (footnotes omitted) (emphasis added). The Court further noted that the Establishment Clause “means at least” that “[n]o tax in any amount, large or small, can be levied to support religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” Id. at 591, 109 S.Ct. 3086 (quoting Everson v. Board of Educ. of Ewing, 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947)). The Court explained that, “whether the key word is ‘endorsement,’ ‘favoritism,’ or ‘promotion,’ the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief....” Id. at 593-94, 109 S.Ct. 3086 (citing Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)).
It is clear that if the City funded events that directly support religious organizations, the principles stated above would be violated. Appellants’ event, a gathering and prayer service for “Tucson Christians,” is without question, religious activity. The City may not sponsor or provide financial support for such religious activity. See Nyquist, 413 U.S. at 772, 93 S.Ct. 2955. In addition, events that receive financial support from the Civic Events Fund are advertised as being co-sponsored by the City of Tucson. But the City may not promote or affiliate itself with any religious doctrine or organization. See County of Allegheny, 492 U.S. at 590, 109 S.Ct. 3086. Finally, the City may not use taxpayer funds, “in any amount, large or small” to support religious activities or organizations. Id. at 591, 109 S.Ct. 3086; see also Rosenberger, 515 U.S. at 840-41, 115 S.Ct. 2510; Nyquist, 413 U.S. at 780, 93 S.Ct. 2955.
The majority asserts that the City could fund events that directly support religious organizations because such conferral of incidental benefits does not violate the Establishment Clause. See supra at 1068-69. I agree that the conferral of incidental benefits does not necessarily implicate the Establishment Clause. However, I do not agree that the award of taxpayer funds to support a religious organization constitutes an “incidental benefit.” Indeed, all of the cases cited by the .majority that deal with incidental benefits are distinguishable. See discussion infra.
For example, the majority cites Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). The issue in Widmar, however, was simply whether the University of Missouri’s policy, which allowed all student groups to use its facilities, except for religious groups, was constitutional. See id. at 273, 102 S.Ct. 269. The Court found that the “benefits” to religion were incidental because they merely involved the use of University facilities. In contrast, here, Appellants are seeking more than mere “use” of a forum; they are seeking financial support for their event. This benefit is direct and is not “incidental” not only because taxpayers would be paying the fees owed by Appellants’ organization, but also because money was collected at the event for the organization. Moreover, the Court in Widmar emphasized that “[t]he basis for our decision is narrow” because the University “created a forum generally open to student groups.” Id. at 277, 102 S.Ct. 269. But in the present case the City of Tucson did not make the Civic Events Fund generally available to all non-religious organizations.
The majority also cites Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). The issue in Lynch was whether a city could display the creche on city property without violating the Establishment Clause. See id. at 685-88, 104 S.Ct. 1355. The creche had been displayed on the city property for 40 or more years and was only a small portion of a larger display. See id. at 671, 104 S.Ct. 1355. The Supreme Court held that the display of the creche on city property did not violate the Establishment Clause because “whatever benefit to one faith or religion or to all religions [was] indirect, remote, and incidental.” Id. at 683, 104 S.Ct. 1355. Unlike the benefits sought in present case, the Court in Lynch noted that “[n]o expenditures for maintenance of the creche have been necessary.” Id. at 684, 104 S.Ct. 1355. In addition, the Court pointed out that Lynch “does not involve a direct subsidy to church-sponsored schools or colleges, or other religious institutions .... ” Id. at 685, 104 S.Ct. 1355. In contrast, if the City in the present case were to fund Appellants’ religious organization, the benefit to that organization would be neither indirect, remote, or incidental. Indeed, the “benefit” would constitute direct financial support of Appellants’- organization because the City would be paying 'that organization’s bills.
It is also clear that the City of Tucson may not fund evénts that directly support religious organizations under Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1975). In Lemon, the Supreme Court set forth three “tests” to determine whether a government practice violates the Establishment Clause. See id. at 612-13, 91 S.Ct. 2105. “Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance not inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.” County of Allegheny, 492 U.S. at 592, 109 S.Ct. 3086 (citing Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105). It is undisputed that the purpose of the City’s Civic Events Fund is secular and that it neither advances nor inhibits religion in its principle or primary effect. However, if the City allowed events that directly support religious organizations to apply for funding, it would “foster an excessive entanglement with religion.” Id. The City’s Subcommittee, which evaluates and determines which events should receive funding, would have to pick and choose between various religious organizations, which is clearly impermissible. And the City would be serving as a co-sponsor of- the religious event, providing staff at the event and financial support.
Furthermore, -if the City of Tucson had funded Appellants’ event, the City would have violated the endorsement test. Under the “endorsement test” the appear-
In the present case, the Civic Events Fund excludes events that directly support religious organizations to avoid the appearance of City-endorsed religious speech. Events that receive funding are advertised as having received City funding. Even if the City were to stop advertising funded events and include a disclaimer, the appearance of endorsement would still exist.
If the City’s Policy did not exclude events that directly support religious organizations, the City would either have to terminate the grant program entirely, or fund every religious event that requested funding. The Establishment Clause clearly prohibits government from preferring one religion over another. Thus, the City could not continue to selectively award grants to “civic events” because such subjectivity would certainly create excessive entanglement with religion in violation of the Establishment Clause. See Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105.
IV
The use of taxpayer money to pay a religious organization’s bills is a blatant example of an Establishment Clause violation. See Rosenberger, 515 U.S. at 841, 844, 115 S.Ct. 2510; Nyquist, 413 U.S. at 780, 93 S.Ct. 2955. Even assuming that the City had adopted a totally “neutral” policy, the result would be the same— taxpayer money would still be used to pay the bills of religious organizations, which is clearly prohibited by the Establishment Clause. See Rosenberger, 515 U.S. at 844, 115 S.Ct. 2510; Nyquist, 413 U.S. at 780, 93 S.Ct. 2955.
As Justice O’Connor declared in Rosen-berger, there is “no precedent for the use of public funds to finance religious activities.” 515 U.S. at 847, 115 S.Ct. 2510 (O’Connor, J., concurring). The majority
The majority asserts that the City should award grants to “all speakers in the forum on a religiously neutral basis,” and that such conduct would not violate the Establishment Clause. See supra at 1072. Clearly that is not a realistic option here. The City does not have unlimited funds to financially support civic events. Under the current policy, the City evaluates applications and only funds those events that the Subcommittee determines will best further the City’s goals. Moreover, “[t]he Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions ... and not all state policies are permissible under the Religion Clauses simply because they are neutral in form.” Pinette, 515 U.S. at 777, 115 S.Ct. 2440 (O’Connor, J., concurring).
The City of Tucson’s Civic Event Policy is constitutional. Accordingly, I would affirm the decision of the district court.
To Judge Pregerson’s Dissent.
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Application for Civic Event Support Page 2, question 2
Mayor Miller has proclaimed “A Day of Prayer” in our community in coordination with the annual National Day of Prayer. His proclamation clearly states how prayer and especially the observance of a national day of prayer is part of the historical and cultural heritage of our city and nation.
The purpose of our committee is to organize an annual gathering of Tucson Christians to observe this day. We have invited the participation of over 500 Tucson area churches and Christian ministries, including many different denominations and ethnic groups. We have contacted over 25 different public officials, inviting their participation and asking for specific prayer requests. The Air Force community will be represented.
The event will be hosted by a local radio announcer. There will be a time of praise and worship led by both a youth choir and an adult choir. Pastors from nine different churches will lead the participants in prayer for local, state and national issues including die following:
* Improved relationships between different segments of our society.
• National, state and locai leaders and their specific prayer requests.
• Law enforcement and emergency services.
• Youth, families, neighborhoods and the homeless.
• Educators and schools.
Patriotism will be emphasized in die decorations and music.
3.
.The majority claims that "the dissent relies on the Gentalas’ original application for reimbursement from the Fund, and attachments thereto, which state that the National Day of Prayer event was organized for 'Tucson Christians.’ ” See supra at 1068. Indeed, the application for funding clearly indicated that the purpose of the event was "To organize an annual gathering of Tucson Christians to observe the National Day of Prayer,” see Appendix at 5. This is what the Subcommittee had before it when it decided to reject the Genta-las’ application for funding.
Moreover, question 10 on the application asks, "Does your ’ organization require its members to pledge to any specific religious belief?” To which the Gentalas marked "Yes” and wrote in "Christian.” Appendix at 5. The second part of question 10 asks, "If yes, would a person’s membership be terminated if the person would not make such a pledge?” Again, the Gentalas marked "Yes.” Appendix at 5. I am not aware of any case where any court found that a similar organization (that required its members to pledge to a specific religious faith and would terminate a person’s membership if they did not) was not a "religious organization.”
. The majority incorrectly asserts that the Gentalas’ event was a "public prayer service conducted from such a perspective [that] would support members of Jewish and Christian religious organizations....” The prayer service, as Appellants' counsel admitted at oral argument, addressed a Christian perspective only. And the only individuals that spoke at the prayer service were Christians — they were not members of the Jewish faith as the majority opinion suggests.
. Although the Subcommittee did not evaluate whether the event would otherwise meet the criteria for funding, it appears that the event would not because: (1) the Tucson National Day of Prayer Committee was not a non-profit organization; (2) money was collected at the event; and (3) it is highly doubtful that the event "did not discriminate against any persons in any manner” as required by the Policy.
. As noted in DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 n. 4 (9th Cir.1999), "[t]he contours of the terms ‘designated public forum' and ‘limited public forum’ have not always been clear.” (citations omitted). Here, the majority concludes that the Civic Events Fund is a "limited public forum.” Supra at 1062. It is perhaps more precise to state that the majority finds that the Civic Events Fund is a "nonpublic forum open for a limited purpose." DiLoreto, 196 F.3d at 967. Nonetheless, for purposes of clarity, because the majority uses the term "limited public forum,” I will use that term in my dissent as well.
. Even if I were to analyze this case using forum doctrine, I would still conclude that the City's actions were constitutional, especially in light of this court's recent decision in DiLoreto. See 196 F.3d 958; see also Good News Club v. Milford Central Sch., 202 F.3d 502 (2d Cir.2000) (ruling that school's refusal to allow religious organization to use facilities was based on content, not viewpoint). In DiLore-to, we ruled that the school district's refusal to permit religious messages on a high school baseball field fence was a "permissible, content-based limitation on the forum, and not viewpoint discrimination.” Id. at 969-70 (emphasis added). In addition, in DiLoreto we rejected the argument that excluding religion as a subject or category always constitutes viewpoint discrimination. Id. at 969. We stated that such an argument "mischarac-terizes the holding in Rosenberger” and we noted that in Rosenberger, "[t]he Court merely held that refusing to fund only religious viewpoints on otherwise-permissible subjects (i.e. pregnancy or homosexuality) was viewpoint discrimination.” Id. at 970.
. This fact also distinguishes the present case from Board of Regents of the University of Wisconsin System v. Southworth, - U.S. -, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000). In Southworth, the Court ruled that a public university may charge its students an activity fee to fund a program to facilitate extracurricular student speech. See id. The Court, however, emphasized that:
Our decision ought not be taken to imply that in other instances the University, its agents or employees, or — of particular importance — its faculty are subject to First Amendment analysis which controls in this case. Where the University speaks, either in its own name or through its regents or officers, or in myriad other ways through its diverse faculties, the analysis likely would be altogether different. The Court has not held, or suggested, that when the government speaks the ndes we have discussed come into play.
Id. 120 S.Ct. at 1357 (emphasis added) (citations omitted).
. Perhaps the most troubling aspect of the majority’s opinion is the suggestion that the student fees in Rosenberger and the general tax assessments in the present case are not distinguishable, see supra at 1069, despite the Court’s forceful language in Rosenberger that the case "cannot be read as addressing an expenditure from a general tax fund." 515 U.S. at 841, 115 S.Ct. 2510. The majority argues that this distinction does not apply here "[gjiven that the Fund is administered by a City Council composed of duly-elected representatives of the residents of the City of
. In addition to being necessary to avoid violating the Establishment Clause, the Policy is sufficiently narrow. The City’s Policy did not exclude all events with any type of religious theme, it only excluded events that directly support religious organizations. For example, the City funded the fishing clinic for handicapped children which was sponsored by the Lutheran Church, a Mormon Battalion event that celebrated the placement of a monument in a city park which commemorated a historical event in Tucson, and a Las Posadas festival. The majority argues that the City’s decision to fund the Las Posadas event demonstrates that the City is engaging in viewpoint discrimination. See supra at 1065. I disagree. The Las Posadas event was a play that was sponsored by a public school. Although the play told a religious story, the event did not directly support any religious organization and more importantly, the funding of that event was never challenged.
The fact that the City funded these events demonstrates that the City’s Policy is not hostile towards religion. Under the funding criteria, religious, organizations can receive funding for events so long as the event does not directly support the religious organization. The City could have enacted more restrictive criteria that excluded from funding all events that had any relationship with religion, direct or indirect. Instead, the City chose to adopt narrow criteria that would simply ensure that taxpayer money was not used to support religious organizations in violation of the Establishment Clause.
. The majority argues that the benefit is not "direct” because the City of Tucson would not be required to make "direct” money payments to Appellants’ organization. See supra at 1069. I disagree. As Judge Sneed stated during oral argument, such a distinction "doesn’t make any sense — a concession to a particular religious organization in the form of the government spending money on their behalf as opposed to giving them the money to spend for the same cause really doesn't make any sense. In any event, an economic benefit is being made to a religious organization.”
. The majority argues that "[i]t is important, when considering how the situation of the National Day of Prayer event having costs covered by the City's Fund would be interpreted by observers, to note that most of the attendees of the event were probably adults.” See supra note 11 at 1070. There is absolutely no support for this conclusion in the record. There is no evidence that the event was geared towards adults or that most of the attendees were adults. Thus, this argument is based on pure speculation.
