*1 PETITION FOR REVIEW GRANT-

ED. GENTALA; E.

Patricia Robert A.

Gentala, Plaintiffs-Appellants-

Cross-Appellees, TUCSON,

CITY OF Defendant-

Appellee-Cross-Appellant.

Nos. 97-17069. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted Oct. April

Filed

servation when engaged in a similar judi cial endeavor: “Reliance on categorical platitudes is unavailing. in Resolution stead depends on the hard task of judg ing. ... Such judgment requires courts to lines, draw quite fine, sometimes based on particular facts of each case.” Rosen berger v. Rector & Visitors the Univ. Va., 819, 847, (1995) L.Ed.2d 700 (O’Connor, J., concur ring).

FACTUAL BACKGROUND This case arises from of Tuc- rejection son’s of Patricia and Robert Gen- talas’ Civic Events Fund for the coverage costs for city services for local observances of the Na- *5 Day tional Prayer of held one of the City’s public parks.2 Theriot, Kevin H. American Center for The City established the Fund to en- Justice, Law and Lawrenceville, Georgia, courage civic and provide events a budget- for the plaintiffs-appellants-cross-appel- ary mechanism for accounting for the costs lees. of in-kind services provided by the for certain civic events. provides Thomas The Fund Berning, J. City Attorney, Tus- con, for Arizona, events for “that celebrate the and defendant-appellee- commemorate cross-appellant. historical, the cultural and

ethnic heritage of the City nation, and the or increase community’s the knowledge and understanding issues, of critical the purpose of improving citizens’ quality life; of generate broad community appeal ...; and participation instill [or] civic Before: PREGERSON, SNEED and pride City, the state or nation.” In-kind Circuit Judges; CARTER,1 District provided by services the include Judge. use parks’ of the equipment, event refuse con- Opinion by CARTER; Judge Dissent tainers and street sweeping. Judge PREGERSON. organizers As the of the local observ- CARTER, District Judge: ance of the National Day Prayer, the applied Gentalas to the Fund for coverage These appeals require us to navigate of the costs carefully city the services. The event shoal-infested channel be organized by tween Scylla the the part Gentalas was First Amendment’s Speech Free Clause annual Charybdis and the observance of the National Day of the First Prayer. Amendment’s Lynch Establishment Donnelly, 465 Clause. In attempting task, 668, 677, are we 79 L.Ed.2d 604 fully cognizant of (1984). Justice O’Connor’s ob This event was established by a Carter, 1. The Honorable O. David District 2. According to the application Gentalas’ Judge California, for Fund, the Central District of they services for sought which sitting by designation. coverage $500. amounted less than of reli- held direct tor “events in 1952. Since Congress resolution joint the Free violated Day organizations” gious marked has 1952, each President For the and Establishment proclamation. Free Exercise Speech, presidential awith and the Clinton President The Amendment.3 year question, of the First Clauses con- proclamation mayor City’s issued from enjoin the sought to Gentalas proclama- Mayor’s cerning the event. other and excluding plaintiffs espe- and prayer how “clearly state[d] tion coverage of for eligibility from groups day of of a national cially the observance The district court the Fund. under costs and cultural historical part of the prayer prelimi- motions the Gentalas’ denied nation. and of’ the heritage relief, injunctive con- nary permanent and pastors personnel, Air Force States United vio- actions did not cluding that the and City’s congregations, nine of rights and speech free late the Gentalas’ attended people one hundred almost National funding stated The Gentalas’ event. violated Estab- would have activities in pray- led would be the participants Clause. lishment rela- improved concerns: for various er City moved proceedings, During segments different tionships between add state-law their answer to amend leaders; law enforcement society; political court denied district defenses. youth, personnel; emergency services and homeless; their answer. motion to amend families, neighborhoods The application and schools. educators City have Both the Gentalas include would the event stated that also challenging district appeals filed Thus, and music. decorations patriotic rulings. adverse respective court’s strong sectarian had a while the event in- capable of character, event civic OF REVIEW STANDARDS community’s knowledge creasing the abuse of discretion We review *6 as well as critical issues understanding of preliminary of court’s the district denial interest, sup- community broad generating Roe injunctive relief. See permanent and event fell within port and civic pride, 1400, n. Anderson, 1402 & 1 v. 134 F.3d Fund had which thé scope of events Roe, (9th Cir.1998), v. 526 U.S. aff'd, Saenz been created. 1518, 689 489, 143 L.Ed.2d 119 S.Ct. event, Genta- holding to their Prior F.I.G.H.T. v. (1999); Freedom Easyriders for reimburse- application las submitted an (9th 1486, Cir. 1493 Hannigan, 92 F.3d the sub- the Fund of to ment costs 1996). its abuses discre The district court Fund. which administers the committee on errone decision when bases its tion mounted, the had been After the event Roe, factual conclusions. legal ous the subcommittee’s City Council reviewed 1; Easyriders, 92 F.3d at 1402 n. 134 F.3d groups cited it. Both rejection and upheld at 1493. statement explicit policy only the Fund’s injunction, the preliminary obtain [T]o reli- in of direct that “events held (1) either show moving party must eligible are not organizations” gious concerns success on probable and of provision of services combination regulates irreparable Constitution of possibility about how the and the merits of the (2) in church-state are questions relations that serious injury or application. rejection of the Gentalas’ hardships tips of and the balance raised two formulations its favor. These ac- this subsequently filed The Gentalas sliding on a scale points two represent applied on face and tion its alleging that irreparable of required degree which the exception the Fund’s application their case, we do the context of violated tion that the 3. Because we conclude other constitutional rights free-speech the Gentalas’ address the Gentalas’ provide a suffi- does not Establishment Clause claims. viola- compelling justify ciently reason

1061 harm increases as the of possibility (1992)); suc- L.Ed.2d 305 Perry Educ. v. Ass’n cess decreases. Ass’n, Perry Local 37, Educators’ 460 U.S. 46, 948, (1983). Roe, 103 S.Ct. 134 F.3d at 1402. To obtain L.Ed.2d 794 perma injunction, This moving prohibition nent on party viewpoint must discrimina- demonstrate “the of likelihood tion vitality substantial retains its even govern- when irreparable injury immediate and the ment has created the forum in which ex- of remedies at law.” inadequacy Easyri pressive id.; activities occur. See see also ders, (internal 92 F.3d at 1495 quotation DiLoreto v. Downey Sch. Bd. Dist. Unified “ omitted). and citation ‘The loss of First Educ., (9th 958, Cir.1999). 196 F.3d freedoms, Amendment for even minimal matter, As an initial we must deter time, periods of unquestionably constitutes mine whether S.O.C., National irreparable injury.’” Inc. v. Coun Clark, (9th Cir.) event amounted ty 1136, expressive 152 F.3d pro conduct Burns, (quoting v. tected Elrod 427 U.S. First Amendment’s Free (1976)), 49 L.Ed.2d 547 Speech Clause. According to the Genta- (9th Cir.1998). amended F.3d application, las’ they inviting were people gather park for a time praise also review for We dis abuse worship with singing and prayer. cretion the district court’s denial of leave Such Calderon, activity speech to amend. See Bonin within meaning 59 F.3d (9th Cir.1995). 815, 845 Although First there Amendment. See Capitol are strong public policy justifications urg Square Pinette, & Advisory Review Bd. v. ing liberality amend, in granting leave to 753, 760, 515 U.S. “[futility can, by itself, jus amendment (1995); L.Ed.2d 650 Vincent, Widmar v. tify the denial a motion for leave to 2, 269, 454 U.S. 265 n. amend.” Id. (1981). 70 L.Ed.2d 440 Having concluded that the Gentalas ANALYSIS were engaging speech within the mean The Gentalas’Appeal ing Amendment, of the First we must next The Gentalas contend determine the nature of the forum to rejection of their for coverage which they sought access. See Cornelius city of the cost of services under the Civic v. Legal NAACP and Educ. Defense Events Fund violated free-speech their Fund, Inc., 788, 800, *7 rights guaranteed by the First Amend- 3439, (1985); 87 L.Ed.2d DiLoreto, 567 196 response, ment. In the City argues both F.3d at 964. Before determining the fo that there was a free-speech not violation character, however, rum’s we clearly must and that if free-speech even the Gentalas’ define the question. forum in rights infringed, justified were this by was the compelling in interest “The avoiding relevant forum is defined an Establishment Clause violation. the sought by access speaker.” the See DiLoreto, 196 at (citing F.3d 965 Speech/Public Free Corneli Forum Issue us, 801, 3439). 473 U.S. at 105 S.Ct. The Supreme Court’s in decision parties and the district court have dis Rosenberger guides our resolution of the cussed the issues raised this if case as free-speech in issues this case. Rosen both the City’s parks and the Civic berger, the Court prin reiterated that the Events Fund were fora. The relevant cipal evil from the government against is correct its assertion the that which the Free Speech protects Clause the Gentalas never were denied access the to citizenry is discrimination on the basis public park. They were viewpoint allowed to hold when regulating expressive ac event, their event. 829, having tivities. After held Rosenberger, See 515 their U.S. at however, 115 (citing S.Ct. 2510 appealed R.A.V. v. the Gentalas St. the sub Paul, 377, 391, 112 2538, 120 505 U.S. S.Ct. rejection committee’s of their application 1062 is not the Fund Because 103 S.Ct. 948. under the city services cost-coverage of

for activities expressive for funding source Given City Council. the full to Fund immemorial, we time since in trust held that conclude activity, we post-event public a traditional that it is not Fund, conclude not to the access sought Gentalas Ass’n, at 460 U.S. Perry See Educ. forum. the Fund Although park. merely to the Fund’s 45, Because 103 S.Ct. physical in the speech a forum face that on its policy states implementing source of sense, government-created aas topics certain to is limited the Fund en with costs associated cover funding to the record and because speakers certain deserving First Amend in behavior gaging parties demonstrates developed by with Fund is forum protection, ment in a managed Fund has been that Amendment. the First meaning of in the manner, conclude we cannot 830, 115 S.Ct. selective at 515 U.S. Rosenberger, See Fund as designated has by the created a fund (stating 2510 activity. expressive general open forum printing cover University Virginia Moriches v. Center Chapel Lamb’s See publications organizations’ of student costs 384, Dist., 391- 508 Sch. U.S. Free Union metaphysical than more “a forum (1993); 2141, 352 92, L.Ed.2d 113 124 sense, S.Ct. but geographical spatial in a 3439; 802, Cornelius, 105 S.Ct. at 473 U.S. principles are Amendment] [First same DiLoreto, Following at 965. 196 F.3d applicable”). Rosenberger, we Court’s Supreme lead gov analysis divides “‘Forum public Fund is limited conclude categories: three into property ernment opened forum that has been fora, and fora, public designated public groups of certain activities expressive DiLoreto, F.3d at 196 nonpublic fora.’” Rosen topics. See certain speaking about Rosary v. (quoting 964 Children of 2510; see 115 S.Ct. at berger, 515 U.S. (9th Phoenix, 976 F.3d 154 City of DiLoreto, at 967.4 196 F.3d also denied, Cir.1998), 526 U.S. cert. on relying argues, (1999)); The dissent see 143 L.Ed.2d v. Fin the Arts 45-46, Endowment National Ass’n, at Educ. Perry also 965-66, terminology notes, Circuit’s the Ninth correctly the terms dissent 4. As the forum,” public conceptual Re- blurriness. may "limited to less "designated public lead forum,” not al- "nonpublic terminology have to describe gardless forum” used DiLoreto, precision. however, forum, ways Supreme used Court and been "designated public An. 4. F.3d at 965 & agree governmental Circuit the Ninth government, which the is a forum forum” selective fo- managing the more discretion conduct, through explicit and intentional its by the same considerations— bounded rum is open generally designated a forum has purpose light of the forum’s reasonableness Perry activity. expressive public for Rosenberger, neutrality. See viewpoint 948; 46-47, Ass’n, 460 U.S. Educ. 2510; 829-30, Perry U.S. at 5, 270, Widmar, n. at 267-68 & 454 U.S. 948; Ass’n, Educ. DiLoreto, DiLoreto, 269; & n. 4. F.3d at 965 Thus, be 196 F.3d to a forum has referred between a limited *8 the cause distinction speakers government to certain opened the by a semantic nonpublic forum is forum forum,” public see topics as a "limited or difference, analytic without an distinction 2510; 829, S.Ct. at 115 Rosenberger, 515 U.S. the Rosenberger Court referred the because such a forum referred to Circuit has the Ninth public analyzing aas limited was fund it forum, open for a limited "nonpublic forum as a analogous we is most a fund conclude DiLoreto, F.3d at 965-66. 196 see purpose,” case, we will at this to the Fund issue discrimination content-based Because Finley, terminology. See to use that continue compelling in either absent a interest allowed (stating at issue in the fund at 2178 118 S.Ct. forum, public designated see traditional forum”); public a "limited Rosenberger was 54-55, Ass’n, at U.S. 103 460 Perry Educ. 829, 2510 at S.Ct. 115 Rosenberger, 515 U.S. 948, opened fora permissible in and is S.Ct. being analyzed the Court (stating fund the preserve purposes to the more for limited DiLoreto, forum”); 196 public was a "limited forum, Rosenberger, 515 U.S. the see nature of Rosenberger Court (noting Ass’n, 965 2510; F.3d at 829, Perry S.Ct. Educ. at forum”). DiLoreto, "limited 46, 948; the term had used 196 F.3d at U.S. ley, 569, 2168, 141 the motivation behind decision. (1998), L.Ed.2d 500 because City Even agreed if we with the analy- dissent’s makes selective determinations when sis could have denied the awarding reimbursements under the Fund Gentalas’ for a number of rea- that the Fund exempt analy forum sons under the Fund’s implementing poli- sis. The dissent’s reliance on Finley is cy, in actuality, the record shows—and the misplaced. policy being challenged in City has never contested —that appli- Finley was of a different character than cation was denied due to the religious the policy being challenged in this case. character of event for which the Genta- As Supreme point was careful to las seeking were reimbursement. These out, the “decency” criterion Finley was factors —the absolute bar for reimburse- one of several criteria for the NEA to ment of certain kinds of events consider making when funding decisions, City’s policy, the character of the Gentalas’ 2175-76, see id. at whereas the challenge, and the state of the record— Fund any renders “event held in direct make this appeal more like Rosenberger organizations” abso than like Finley. lutely ineligible for reimbursement Moreover, costs. the nature of the chal In maintaining the boundaries and lenges to the respective policies Finley integrity of Fund, will, the City and this case are of a notably different necessity, engage in on discrimination In Finley, character. Supreme Court basis of the content of applicants’ speech. considering facial challenge to the In managing forum,' this however, NEA’s “decency” criterion. id. at City’s decisions to speakers exclude must 2175, 2178. This is relevant least be reasonable in light of the pur Fund’s First, two reasons. the burden on liti poses. See Rosenberger, 515 U.S. gants pursuing a facial challenge is much 2510; DiLoreto, F.3d heavier than the litigants burden on pursu Thus, content-based discrimination is ing as-applied challenge. See id. at legitimate if only conducted consistent Second, even policy which is view with the purposes, Fund’s any whereas point-neutral may on its face be applied in discrimination between applicants on the a viewpoint-discriminatory manner. The basis viewpoint is forbidden. See Board Court in Finley explicitly pointed out that Regents the Univ. Sys. Wis. they were not considering “a situation Southworth, - U.S. -, where the grant denial of a may be shown 1356-57, 146 L.Ed.2d (2000); Rosen product be the of invidious viewpoint berger, 515 2510; discrimination” because the litigants had DiLoreto, 196 F.3d at 967.5 brought a facial challenge. See id. at 2178. case, however, we are considering The Fund’s implementing policy states an actual denial and we know that created, the Fund has been part, 5. Although Supreme Court’s decision in that could only justified by be a compelling Widmar is instructive in our analysis of the interest and a narrowly regulation. tailored appeal, issues on the distinction between dis- Id. at 102 S.Ct. 269. If the Fund were a permissible crimination in traditional and designated public forum, traditional or designated public fora on the one hand and in exception speech would be an nonpublic limited pre- fora on the other impermissible content-based discrimination. vents Widmar from controlling present See id. at 102 S.Ct. 269. Because the case. The Court classified the meet- *9 is, most, Fund at a public limited forum ing space in designated public Widmar as a opened speakers for certain and topics, Wid- Widmar, forum. See 454 U.S. at 267-68 & n. inapplicable mar is free-speech to the analysis 102 S.Ct. 269. The Court then con- and we must cluded that determine prohibiting excep- whether the groups using from classrooms as tion meeting discriminates on space viewpoint "based on the basis of the religious group's content of applied the on its face intended or as the Gentalas the speech” was content-based City. discrimination public-at- of the members or traditions [e]vents support [c]ivic and “encourage tradi- non-religious a belong to large who histori- commemorate and celebrate

that: however, conclude, that We cannot the tion. heritage of ethnic cal, and cultural from this and diffuse benefits communi- minimal nation, increase the the or and the constitutionally imper- a understanding of criti- amount to event knowledge and ty’s improving religion. of support of issues, purpose the missible with cal life; broad generate quality of citizens’ Although concluded we have [or] participation; and community appeal under event’s costs of the reimbursement state, City, in the pride civic instill religion of support not direct the Fund was event obvi- the Gentalas’ While nation.” sense, con we cannot in a constitutional elements, as previously ously had sectarian faith in bad when acted clude a civic described, had character it also Prayer Day of the National deciding that subject general comfortably within the fits exception. Fund’s the fell within event Fund was the for which of events matter Cornelius, at 473 U.S. See created.6 (“The to re decision Government’s those explicitly excludes policy The nonpublic forum need to a access strict religious direct held “events reasonable; need not be the only be upon the relied organizations” only reasonable reasonable or most rejecting Genta- exemption-when this limitation.”). if the exclusion was Even application The Gentalas’ application. las’ reasonable, however, City could not offering was to be free-will a indicates based on reject the Gentalas’ Although the event. taken at the end See speakers. Rosen viewpoint their be small offering probably would such 2510; 830, 115 S.Ct. berger, 515 U.S. mounting to the cost in relation DiLoreto, In other at 969. 196 F.3d provide some event,7 offering might not words, application could the Gentalas’ organiz- support for the degree of financial bring a merely it would because be denied reim- requested of the event. ers per an otherwise religious perspective to Fund, some from bursement Rosenberger, conversation. missible costs, meager financial also a is $340 2510; 831, 115 Lamb’s establishes outlay. The record Chapel, Prayer publicized was National Court previously, noted As consistent with in a manner organized a fund estab Rosenberger examined for tradition and counsel Judeo-Christian University Virginia by the lished argument that at oral stated Gentalas publications printing cover costs was Day event the National groups. See Ro student approved from perspective. from Christian presented 115 S.Ct. 2510. senberger, 515 U.S. religious per- Thus, a clear the event had from scheme University its excluded that a acknowledge must spective and we by groups en written publications those from such conducted prayer service Id. at in “religious activities.” gaging members would a perspective Productions, Awake Wide organiza- and Christian Jewish maga- published which group other faith student members of tions more than addressing reason, not statement ad was on DiLoreto’s the dissent's reliance this 6. For DiLoreto, subjects otherwise-permissible from reli- misplaced. DiLoreto the Genta- gious perspective....”) Because District’s refusal upheld the School criteria religiously neutral event fit las’ on Ten post of the Commandments the text .the created within the forum inclusion field fence. Downey High School's baseball Fund, distinguishable this case DiLoreto, The Court 196 F.3d at 962. DiLoreto. permissible refusal concluded that discrimination, because of content-based se, offering prior year, the raised posting per free-will 7. The character expenses associated and the $393.84 limited itself had because forum been but thé (“Mr. $404.54. event amounted advertising. at 969. See id. to business *10 “offer[ing] perspective perspective zine a Christian on ... in resulted the refusal” to issues,” personal community both was provide access to the relevant forum. Ro coverage policy. denied under the Id. at senberger, 2510. S.Ct. 825-27, Supreme 115 S.Ct. 2510. The The record also indicates that City University’s concluded that the Court de approved application had to the Fund coverage nial of was an unconstitutional by the Society Tucson Festival and Carril- viewpoint form of discrimination. See id. lo School for a Las Posadas festival. The 2510; see also South festival a re-enactment story of a from worth, 120 at 1356-57. In reaching namely, Christian Joseph folklore— conclusion, relied Mary’s search for lodging in Bethlehem heavily on Lamb’s Chapel. See Rosenber prior the birth of Jesus. The 830-32, ger, 115 S.Ct. 2510. In approved funding “religious-relat- for this Chapel, Lamb’s a local per school board ed” event because was “art” and was community groups mitted to use its build “not held directly support a hours, ings after but denied access a organization.” Because the Las Posadas group wanting to show a film series “that festival re-enacts an event connected with ... would ... undermining discuss tradition, the Christian provide it would only influences of the media that could be the same kind of diffuse support for Chris- by returning counterbalanced to tradition tianity writ large as would the National al, family Christian values.” Lamb’s Thus, Day Prayer event. de- 386-88, Chapel, 508 U.S. at expression cided artistic was a suffi- The National event ciently way indirect engaging religious a was, in part, gathering drawing a civic tradition —and therefore an appropriate community together to address issues of forum, activity in the but that pray- community-wide e.g., homeless concern — way er was too direct a engaging ness, education, law enforcement. na religious tradition —and an inap- therefore event general ture fits within the propriate activity in the forum. Moreover, purposes of the forum. there is Although sympathize we can no indication from the if record that a local judgment the difficult calls the public school wanted to hold a fund-raiser required to make when reviewing applica or if a group providers of social service Fund, tions to we conclude that its rally wanted to hold a on behalf of home rejection application of the Gentalas’ was people less would have de impermissible viewpoint discrimination applications nied their to the Fund.8 The violation Speech of the Free Clause of the rejected Gentalas’ because Rosenberger, First Amendment. See of their view that the most relevant man 829-831, 2510; U.S. at Lamb’s ner in important which to address these 392-94, Chapel, 508 U.S. at 113 S.Ct.2141. through expressive social concerns was Moreover., light of our discussion of the worship, singing prayer. acts of “Re application, Las Posadas we may conclude ligion be a vast area of inquiry, but it here, distinguishing between those who provides, speak also specific as it did premise, perspective, religion directly supporting about who are standpoint from variety subjects may religious organization which a be dis and those who cussed and considered. prohibited speak religion about who are not al- will Although Rosenberger engaged viewpoint both the and Lamb's discrimination where Chapel government Courts question concluded that the the record on was silent discrimination, engaged viewpoint subject seeking had whether the matter to be ad- opinion any speaker neither was there discussion of dressed den, was forbid- speakers being clearly other allowed access to the but the record established that rejected forum to discuss the same issues a non- the film series was because of its religious perspective. Chapel, religious perspective. In Lamb’s Chapel, See Lamb’s Court was satisfied that the school board had U.S. at 113 S.Ct. 2141.

1066 Ewing Tp., v. Board Educ. on Everson City to discriminate require ways 504, 15-16, 91 L.Ed. 1, 67 S.Ct. See 330 U.S. viewpoint. speakers’ of the the basis time, (1947). the Su Community At the same 711 Westside Educ. Board 248, that 226, 253, stated repeatedly has 496 Court Mergens, preme U.S. v. Schs. (1990); acknowledge the role of 2356, may L.Ed.2d 191 government 110 110 S.Ct. 11, Widmar, citizenry 272 n. 102 S.Ct. 454 at life of its U.S. in the religion religious expression into 269. incorporate some 674-78, at Lynch, 465 U.S. life. See Issue Clause Establishment Chambers, 1355; 463 Marsh 104 S.Ct. 3330, 783, 792, re 77 L.Ed.2d its City contends that The U.S. (1983). “central lesson” the Gentalas’ The jection of 1019 City’s compelling ju light of the justified in Clause Establishment Supreme Court’s of the the strictures obeying in pro interest ... governmental risprudence “is Clause.9 Establishment First Amendment’s “neutrality towards must maintain grams” in Ro Supreme Court’s lead Following the 839, at Rosenberger, 515 U.S. religion.” reject City’s argument senberger, we occasions, a number of 2510. On reimbursing costs and conclude governmen concluded that has would under Fund the Gentalas’ event on distribute benefits programs tal which have violated Establishment not run grounds do religiously neutral 839, at 515 Rosenberger, U.S. Clause. merely Clause afoul of the Establishment 115 S.Ct. 2510. benefits they incidental to provide because engage to reli that seek organizations of the of the Justices majority A id.; Capitol Square, expression. See gious as to agreed have never Supreme Court 2440; 762-63, S.Ct. Wid at 115 515 of the U.S. meaning and relevance precise 273-74, mar, 102 S.Ct. 269. at 454 U.S. Clause. history of the Establishment however, the Es agreed, Court has whether determining When Clause tablishment religious expression relationship between nor Neither state at this: a means least permissible under government and the up can set the Federal Government Clause, or Establishment violative which pass can laws church. Neither chal whether the inquire useful to “it [is] pre- or religions, aid all religion, aid one pur conduct has a secular lenged law or Neither over another. religion fer one principal primary or ef pose, whether its go to person influence can force nor religion, and to advance or inhibit fect is against away from or to remain church entangle it creates excessive whether a belief profess him to his will or force religion.” government ment person any religion. No or disbelief 679, 104 S.Ct. at Lynch, 465 U.S. entertaining pro- or punished for can be Kurtzman, 403 U.S. Lemon v. (citing ' disbeliefs, for beliefs or fessing religious (1971)). 29 L.Ed.2d 745 S.Ct. or non-attendance. church attendance time, we are not bound “to At same small, amount, any large or No tax or criterion this sensitive any single test any support can be levied Id. area.” institutions, they or whatever activities Fund, exists which called, they or whatever form may be celebrating the his- encourage events religion. may adopt practice teach or residents, and culture of the tory Govern- nor the Federal Neither state interest. See undeniably serves secular can, secretly, participate ment openly Chapel, 508 U.S. Lamb’s religious organiza- any affairs Widmar, 2141; U.S. and vice versa. groups tions or 2440; Chapel, Lamb’s Obeying of the Establishment the mandate undeniably compelling state inter- 113 S.Ct. 2141. Clause is Capitol Square, est. See avoid Insofar as the seeks to vided some for theism over its *12 entanglement religion when adminis- or opposite, Christianity for over compet- Fund, tering opportunity the its best for views, ing world support provided by the attempts so is to abandon to distin- doing City the was neither substantial nor direct guish religious expression between that di- enough to amount to advancement of reli- rectly supports religious organization a gion under the Court’s Supreme Establish- religious indirectly expression jurisprudence. ment Clause Widmar, supports religion. See 454 U.S. In more recent involving private cases 11, 272 n. at 102 S.Ct. religious speech government-created City’s The Fund also have the does not fora, the Supreme Court has focused on primary principal advancing effect of expression whether the religious occurring religion. Supreme Court has conclud in the forum has been endorsed or favored university’s ed that a state of a provision government the when determining classroom to a student Bible for study club whether there is an Establishment Clause meetings only negligible its constituted aid Capitol Square, violation. See 515 at U.S. for such devotional exercise and thus was 762-65, 2440; Rosenberger, constitutionally impermissible. See 839-40, 2510; at U.S. Lamb’s Widmar, 273, at U.S. 393, Chapel, 508 U.S. 113 S.Ct. 2141. Lynch, Burger, writing In Chief Justice In Rosenberger, the most factu legally and majority, nativity for the concluded that a ally analogous us, case to the one before scene, itself, religiously significant by while constitutionality the Court reviewed the of placed by city government when University Virginia’s of refusal to cov among symbols “candy- secular such as printing er the costs of a publica student ..., carolers, striped poles cutout [and] tion, publication’s based on the figures representing such characters as perspective, due to the University’s con clown, elephant, an and a teddy bear” covering cern that the costs would violate business district of Paw- tucket, Island, Establishment Clause. Rosenber substantially Rhode did not support any religion constitutionally ger, 515 U.S. at 115 S.Ct. 2510. problematic Lynch, manner. The Court concluded that the University 671, 687, 104 S.Ct. 1355. would not violate the Establishment may

The dissent asserts some observers by covering publication’s print Clause perceive aligned that the has itself ing using costs when “neutral criteria and by including with the Christian faith policies” evenhanded to determine which symbol in display Christian its and that applicants have their would costs covered. this serves to advance religion. We can 839, 845-46, id. at 115 S.Ct. 2510. assume, arguendo, that display ad- The first distinction between Ro sense; religion vances in a our pre- but senberger the present urged case plainly contemplate cedents that on oc- publication that the Rosen religion casion some advancement of will berger produced “religious was not aby governmental result from action. The 844, organization,” see id. 826 & clear, abundantly Court has made it and that the event for'which however, that every “not law that con- sought the Gentalas in-kind services was. ‘indirect,’ ‘remote,’ fers an or ‘incidental’ Assuming is, is correct that the upon [religion] benefit for that reason alone, organization responsible constitutionally managing invalid.” Com- Religious Day orga mittee Public Educ. and National Liberty Nyquist, nization, we conclude that dif this factual (1973). 37 L.Ed.2d 948 ference is an insufficient basis for distin Widmar, guishing Rosenberger. here, Similarly, Id. at 104 S.Ct. 1355. Supreme University reviewed even if the Court reimbursement costs for the of Prayer pro- National event Missouri at decision to for- Kansas were at the event speakers that all evangelical Chris organization “an bid charge denominational various Christians from students tian In Ro- in “facilities violation. meeting Establishment Clause backgrounds” regisr however, for activities which publication available generally senberger, Widmar, 454 U.S. groups.” tered student refused to subsi- University Virginia (1981). S.Ct. 269 n. 264-65 & Supreme Court re- dize—a decision the Univer dismissed explicit with an magazine buked—was an Establishment about sity’s concerns on the perspective Christian and obvious *13 of meet provision its for violation Clause Rosenberger, 515 issues discussed. acknowl group for the student ing space 825-26,115 S.Ct. 2510. even “possible perhaps that it was edging — Rosenberger, the and In Widmar will religious groups foreseeable —that much less concerned Supreme Court was University facili to from access benefit message identity or of religious about the 273, 269. Widmar S.Ct. Id. at ties.” state by the being subsidized speakers the provision the mere of that demonstrates subsidy the nature of it was about than to a reli of benefits conferral services or concern in The Court’s being an neu under otherwise offered. organization gious offered the is whether more, these cases not, violate without does policy tral program a neutral part is of by Rosenber the state Clause. See the Establishment 2510; 839, or range speakers Wid a of large to ger, 515 U.S. available mar, S.Ct. and designed a ad program it is whether Rosenberger itself Moreover, the Court interests religious to further ministered seeking organization if stated that even the the way. The and dis direct some the costs from Uni coverage printing read the Establishment would have us sent “church,” there versity Virginia was religious way forbids in a that Clause Clause viola be no Establishment would partici speakers from and groups at issue the scheme tion because advantage taking in and of neutral pating an money to in payments “direct making available to citizens programs government engaged that is reli group or stitution by non-sectarian concerns. motivated Rosenberger, 515 U.S. at activity.” gious theory Establishment Clause Such added). 842, 115 (emphasis citizens who denigrates those implicitly public the realm and vein, operate the dissent seek a similar re light culture in of their larger original application engage the on the Gentalas’ lies Fund, and at to take seri from the and' fails for reimbursement convictions thereto, which state that the values enshrined in ously tachments the constitutional Day Prayer being event was National Free Exercise Speech the Free and Claus for “Tucson Christians.” organized es. that the National court district stated focused Rosenberger Court public open event was payments from extensively on whether the comments nothing in the or record fund were University Virginia’s be the Gen- reviewed Council which organiza directly the student ing made had been after the event talas’ 842-43, 115 S.Ct. 2510. id. at tion. See that the event excluded non- held indicates district agree We The fact that a event. Christians Rosenberger Court was that court event which re government-subsidized might explain its conclusion careful to organized mains to the is open if the scheme under have been different is religious group in particular “a tax levied had review involved an Establishment to create sufficient 840, church,” id. direct Widmar, 454 U.S. at violation. Clause could be money if available that a (noting 265 n. id. at purposes,” used for “unlimited meetings “open were group’s Christian program if made the dissent Finally, *14 charged against

are the Fund. im- As its distinction whereas the Court used it as a states, plementing policy the Fund “a is functional one. Both student-fee and gen budgetary detailing means of the costs eral-tax assessments are mandatory on the City departments providing incur in-kind relevant population. See id. at Moreover, to Civic Events.” (treating S.Ct. 2510 the student-fee as a City control assessment). maintains over what services mandatory Thus, it cannot by will be covered the Fund and the be the mandatory character of general charged amount the Fund will be for these tax that give would rise to different consid services. Although absorption erations under the Establishment Clause. of costs for in-kind through plurality services the A distinguished of the Court be clearly provides Fund a benefit to the Na- tween a student a general fee and tax event, Day tional of not a is based on the limited purposes for which City case where the “is making direct the student fees could be used and the money payments to an group neutrality institution or of program under which the that engaged religious activity.” is Id. student fees were distributed. See id. at 842-48, Moreover, 840-41, at 2510. inso- 2510. 115 S.Ct. Given that far in-kind services made Fund purpose, available was used for a limited that under the Fund were provision City of a great maintains deal of discre facilities, physical-plant Fund, the Supreme tionary control over the and that the Court has that such concluded services are Fund is not religion, administered to favor “ ‘incidental’ provid- benefits” which can be we conclude that the Fund is more like the ed to religious groups by government generated Rosenberger student-fee fund without violating the Establishment than a general-tax generated fund.10 concurrence, may In her right "opt- Justice O’Connor have a First Amendment to 10. why identifies two other reasons a fund creat- out” of student-fee assessments not available analyzed ed student fees should be differ- pay to citizens who to tax have assessments. ently by general than a fund created tax as- See id. at 115 S.Ct. 2510. This ais sessments. See id. at 115 S.Ct. 2510. Rosenberger between distinction the Fund in Justice that O'Connor observes the fund in Fund, distinguishing and the but it is a "belongs Rosenberger to the students” because only garnered characteristic which one vote it is administered them and is used to Moreover, majority from the Court. of paid benefit those into the who fund. See id. subsequently rejected argu Court has such an by City Given that the Fund administered respect viewpoint-neutral ment with to subsi composed duly-elected representa- Council of Southworth, dy programs. See tives of the residents of the of Tucson Accordingly, 1349-50. we cannot find it a provide civic events for the benefit of the persuasive why rationale for this case should Tucson, residents of we conclude differently majority be resolved than the re belongs that it to the in a similar fashion. Rosenberger. solved Justice O'Connor also that students observes Rosenberger Court Finally, concern Supreme Court’s University has taken religious organi “[t]he noted payments to direct about private itself from the pains of the student- to disassociate their treatment zations and larg in this case.” Rosenber provides speech involved distinction fee/general-tax underlying rationale ger, on the 515 U.S. perspective er has acknowl would be Rosenberger. religious speech private Whether Widmar, Mergens, government Lamb’s speech for the edged in mistaken which of the state the Establish Chapel programs inquiry a central under id.; Widmar, groups on neutral provide benefits ment Clause. groups or reli religious may benefit and the basis 269. The the relevant when gious perspectives presence of court relied on the district program. criteria of the meets the group lighting and City employees operating ar again once Rosenberger, the Court that the Na to establish equipment sound that the Establishment its view ticulated be mis Prayer event could tional when not violated Clause is interpreted speech as the takenly programs to benefit from groups happen light teaching City. In Widmar’s accounts, are, by all neutral as which cam religious groups to meet on allowing Rosenberger, 515 U.S. religion. See any imprima to “confer pus is insufficient pro Only where we conclude that approval,” tur of state financial provide in-kind or grams would City employees, without presence allow the which would benefits more, imprimatur. does not create such goals its sectarian pursue organization Widmar, 274 & n. 454 U.S. at *15 way government’s in an on the unfettered 269; Mergens, 496 U.S. at see also S.Ct. is the government’s or in the forum dole 253, 110 249-50, S.Ct. 2356.11 possibly violated. Establishment Clause demonstrates, record also The Where, Rosenberger and as with the as however, having cov any that event costs Fund, not make di government the does “acknowledge by the Fund must ered organization and payments to the rect an an through advertising and event control which activities will maintains over the during nouncement event that [the] subsidized, government the can ensure be to the event.” City has contributed services only by that those activities sectarian 763, 115 Capitol Square, In 515 U.S. at im a secular groups which have sufficient 2440, reject plurality a of the S.Ct. assistance. port government will receive argument that a cross government’s ed the groups participate Allowing religious private placed group erected a pro neutral of otherwise beneficiaries govern the seat of “proximity close commitment to grams fosters the nation’s ment” would violate Establishment expression freedom of lib per “may produce because it Clause of a state- erty raising specter without [govern that bears the church, ception the cross which or state-funded sanctioned plurality The stated approval.” ment’s] Estab inspiration was the historical religious ex government that endorses Lynch, 465 U.S. lishment Clause. See 678, 104 pression in violation of the Establishment S.Ct. younger considering impressionable than stu- important, how the ... are less 11. It is when Day Prayer event appreciate situation of the National dents” and should be able to having City’s Fund costs covered religion government's neutrality toward even observers, interpreted by to note would be religious group benefitting when a under that the attendees of the event were most of university program); Mergens, 496 U.S. at 792, Marsh, probably adults. 463 U.S. at 250-51, high (stating that 110 S.Ct. 2356 (stating S.Ct. 3330 that an adult is "not 103 distinguish school students are also able to susceptible 'religious readily indoctrina- government of reli- endorsement between tion,' (citations omitted); peer pressure”) or gion governmental policy that and a neutral Widmar, U.S. at 274 n. 102 see also 454 religion). happens to aid (stating "[u]niversity S.Ct. students over, only government speaks when the because the expressive Clause Gentalas’ manages a forum in favor of for itself freedoms were violated as a result of the religious expression. See id. at private City’s activities, unconstitutional the Gen- plurality 115 S.Ct. 2440. The ob- talas an irreparable injury. suffered served that “it is no violation the Es- [of S.O.C., 152 F.3d at 1148. government tablishment to en- Clause] Accordingly, we reverse the district policies happen act neutral to benefit court’s denial the Gentalas’ motions for Id. religion.” concurring While Jus- preliminary permanent injunctions to the gave greater tices role conclusions and we remand for further proceedings. in determining of a reasonable observer The Cross-appeal government had endorsed the whether speaker of a than the expression private The has also filed a cross- plurality, see id. at appeal contending that the district court (O’Connor, J., concurring) and by denying abused its discretion its motion (Souter, J., concurring), 115 S.Ct. 2440 for leave to amend its answer to assert a they rejected government’s also Estab- defense under Arizona constitution. argument observing that lishment Clause Widmar, Court concluded require could city sign placed be that Missouri’s state constitutional defens near explaining on or the cross es insufficiently were compelling to over city expression did not endorse the of the free-speeeh ride protected by interests private speaker, id. 115 S.Ct. 2440 Widmar, Federal Constitution. See (O’Connor, J., concurring) and at 102 S.Ct. 269. Because we (Souter, J., concurring). have concluded that the denial of the National event was not Gentalas’ would have violated expression itself and there is no Clause, Speech the Free we conclude that allegation that the Fund managed City’s proposed amendment would way that discriminated in favor of have been futile and that the district court speech. maintained control over did not abuse by denying the content of the statement in the its discretion event’s *16 id.; advertisement and could have modified it leave to amend its answer. See Bo decry any nin, to endorsement of 59 F.3d at 845. Thus, agree

the event’s content. we with affirm Accordingly, we the district the district court that the advertisement court’s denial of the motion for leave requirement is insufficient to demonstrate to amend its answer. expression endorsed the of the Gentalas. See id. at CONCLUSION 2440. government While the idea of the subsi- Because we have concluded that dizing public prayer service raises obvi- City engaged viewpoint discrimina concerns, ous Establishment Clause tion violation of the First Amendment excluding religious idea of speakers from rejecting

when Gentalas’ to government programs neutral because of exception the Fund and that the for events identity message their and their raises directly support religious which organiza equally compelling Speech Free and Free face, tions is unconstitutional on its and questions. Exercise principal guar- These that the Establishment Clause does not antees of the First require Amendment provide compelling justifying interest government to juggle conflicting obli- discrimination, apparent that is now that it gations toward its citizens. On the one the district court based its determination hand, the obligates Establishment Clause that unlikely the Gentalas were to succeed government inspect vigilantly prac- to its on the merits an of this case on erroneous Roe, policies they tices to legal and ensure do conclusion. See 184 F.3d at 1402; Easyriders, government at 1493. More- not impression F.3d create did the and the district any fashion than favoring religion or endorsing or On the other expression. court. religious

form of Free Exercise hand, Speech Free appeal. the costs on shall bear to moni- government require Clauses AFFIRMED in REVERSED part, practices to carefully its policies tor and REMANDED. part, unnecessarily they do ensure to opportunities on individuals’ trammel PREGERSON, Judge, Circuit conduct, especially expressive engage dissenting: from reli- conduct which stems expressive judge got district I dissent. The As much as we and belief. gious faith Taxpayer may funds not be used right. local, na- state and provide would like organization. And that bright entities governmental tional organiza- Appellants’ what undisputedly simplify the task simple tests to lines and Ap- religious organization. See tion is—a complex in this and" decisions making of 5. pendix area, drawing exact charged politically tests is articulating notes, formulaic lines and majority opinion resolution As the of the First purposes belied on the “depend[ of cases like this one ] themselves. See guarantees Amendment judging.” supra hard task Lynch, 465 U.S. & (quoting Rosenberger v. Rector Visitors 819, 847, Virginia, Univ. however, do, offer some We (1995) 132 L.Ed.2d 700 City of Tucson and guidance to the general J., Indeed, (O’Connor, concurring)). decision-makers based governmental other judgment requires court “[s]uch appeal of this and our on our examination lines, fine, quite based on draw sometimes of the relevant investigation case.” Id. particular each facts decisions in this area. Where added). The facts of this case (emphasis for ex government has created a forum crucial and should not be diluted. are activities, private speaker pressive organization, the Tucson Na- Appellants’ forum, criteria access to the meets the Committee, Day Prayer applied tional merely speaker be excluded cannot largely a fund for financial expression address speaker’s because the consisting money for an event taxpayer perspec religion adopts es “organize an purpose whose stated permissible topic. tive on otherwise gathering of Tucson Christians.” annual addition, governmental where the forum 3, Appellants did not of financial subsidies provision Appendix includes the all organize a National services, long as those ser or in-kind *17 faiths; of all their event Tucson residents speakers to all in the provided vices are only. for Tucson See id. basis, Christians religiously provi forum on a neutral s Moreover, Appellants’ application for fund- to a sion of such or services subsidie ing clearly stated that an individual’s mem- speaker religious perspective with a will organization, in their the Tucson bership not Clause. violate Establishment Committee, Day Prayer National of would Our of the issues in a manner resolution terminated if the individual would not be City different from the of Tucson and Id. In “pledge” to the Christian belief. district court should not be construed as to fact, in during argument oral or no time any City that the and the court cast doubt Appellants on have de- appeal their briefs seriously took their and care- obligations organization “religious their is a nied that fully their conclusions. After considered organization.” reviewing particular ap- facts of this constitutionality congression- peal, merely the lines The of we have drawn be- Day Prayer National of Speech ally tween of the Free established guarantees event, for Appellants’ not at here. and Clauses a different issue Establishment Christians,” general “Tucson should be con- appropriated by fund City’s fused the national event that was Mayor year. and each Council The source by congressional created resolution revenue, of the funds includes tax user language 1952. The of the congressional fees, and other sources of recurring and Congress, resolution indicates de- non-recurring revenue. Sponsors of claring Day Prayer,” of intend- “National events at Reid Park may request grant Americans, day day ed the to be a for all of from the Civic Events Fund through the all representative noted, faiths. As one City’s' (“Sub- Civic Events Subcommittee single religious can group “[n]o claim own- committee”). ership or control Day of the National of For the 1997 Tucson Day National rather, Prayer; truly to all belongs Prayer, the Appellants permits obtained guidance Americans who seek divine for hold the prayer event in the Demeester country.” themselves and for the bandshell. The event was carried on as 1988) Cong. (May 12, Rec. H2761-02 planned, and Appellants do not allege that (statement Rep. Dymally). City’s impeded actions free speech at Thus, this case is not about the constitu- Rather, the event in any way. Appellants of the Day Prayer. National tionality allege City discriminated against only issue presented in this case is organization by refusing City whether the of Tucson violated the Tucson National financially by denying Appellants Constitution tax- with funds from the Civic Events Fund. funds to payer subsidize the cost of their They are mistaken. event. Because I believe acted clearly within the bounds of the Constitu- The Civic Events Fund exists to encour- tion, I would affirm the deci- well-reasoned age and civic events celebrate sion of district court. the City’s heritage, increase knowledge and understanding of improve issues that

I life, quality citizens’ generate communi- Appellants sponsors are active orga- and ty appeal participation, contribute to of the Pray- nizers Tucson National Day of tourism, or are otherwise identified as requested er. Appellants permits and unique community A events. number (“the funding from the of Tucson conditions must be met for an event to be - City”) hold the event in the De- eligible City support. These condi- meester Outdoor Performance Center tions,, which are listed “Civic (“Demeester bandshell”). Appellants ob- Policy Event Statement Evaluation necessary tained permits and the event (1) (“Policy”) Criteria” include: the event planned, was held as but the denied must sponsored by non-profit organi- be Appellants’ request for funding. As a re- zation conducting individuals sult, organization Appellants’ pay had to (2) basis; event on a non-profit the event approximately equipment to rent $340 must open public be to the and cannot production used for of the event. against persons any discriminate man- allows members (3) ner; sponsor event must main- parks to use its variety a wide insurance, liability tain maintain a financial *18 purposes. The Demeester bandshell is lo- accounting event, acquire and neces- cated in Park. Tucson’s Reid Pursuant to sary permits City. Policy from the The Tucson Code sections 21-14 and farther that held in di- indicates “events specific charged fees are for the use of support rect religious organizations” of are event equipment, park bandshells, and oth- eligible funding not for from the Civic er facilities by City. owned the Grants are Events Fund. from City’s available the Civic Events City Fund, automatically The does not basis, award a help on limited to subsidize civic events. The grants eligible pursuant the of to all events cost to the Civic Events Fund City money consists of the Policy. from Civic the Event Once Sub- only those who application,1 “eli- lants’ own an that event determines committee par- could belief Subcommittee, to the Christian “pledge” us- the funding, for gible” organization.2 of their as members Criteria,” ticipate assesses the “Evaluation ing Indeed, Appellants’ the Appendix at 5. that it is one whether to determine event the that funding declared for application To determine co-sponsor. City will the an “organize to the event was purpose of funding, receive should an

whether event to Tucson Christians gathering of annual of factors a number the considers Id. Day Prayer.” the National observe (1) objectives and purpose the including: application, the reviewing 5. After (2) the event; to which the extent the fund the to refused the Subcommittee community appeal broad generates event directly support a it because would (3) for event need the event’s participation; and organization.3 (4) religious ability to ob- the event’s support; and public other tain financial the refus- majority finds that the past In the and sources. private Day of Tucson National fund the al to of non- a number to fund has refused I Amendment. the First Prayer violated that the as as events events well religious First, the for several reasons. disagree “in direct determined were Subcommittee a limited Fund is not Events Civic organizations.” On religious fact, the majority the forum as asserts. hand, funded events the has the other using “fo- case analysis of this majority’s that religious organizations sponsored given appropriate not rum doctrine” is organiza- religious directly support did not Second, Fund. the Civic Events nature of provided example, For tions. disregards Supreme majority opinion disabled clinic fishing for funding for establishes precedent which Aid co-sponsored was children that between a important distinction there is Lutherans. Association for ac- protected to fund government’s refusal actual denial of a tivity government’s and a case, was de- Appellants’ event In this e.g., rights. See person’s constitutional their directly benefit signed Arts v. Fin- Endowment National Appellants argued Although organization. for 2168, 2179, ley, 524 U.S. par- have all faiths could members of Sullivan, (1998); Rust event, Appel- L.Ed.2d according in the ticipated terminate religious faith and would specific relies majority that "the dissent claims 1.The not) they membership if did was person’s application reim- original on the Gentalas’ Fund, organization.” "religious not a attachments bursement from thereto, Day state that National which incorrectly asserts that majority 2. The organized Chris- Prayer was 'Tucson event ” prayer service "public was a event Gentalas’ Indeed, ap- supra at 1068. tians.’ perspective [that] from such conducted clearly funding indicated that plication for and Chris- support members of Jewish would organize an was "To purpose of the event prayer religious organizations....” tian service, to ob- gathering of Tucson Christians annual Appellants' admitted at counsel Prayer,” Appen- Day see the National serve perspec- argument, a Christian addressed oral had is what the Subcommittee dix at 5. This spoke only only. And the individuals tive reject the Genta- it decided before it when they prayer service were at the Christians— funding. application for las’ Jewish faith as not members of the were Moreover, suggests. question opinion on the majority ’ asks, organization require its your "Does evalu- Although did not the Subcommittee any specific pledge to members the event otherwise meet whether would marked ate belief?” which Gentalas To funding, appears the criteria for Appendix at in "Christian.” "Yes” wrote (1) asks, Tucson Na- not because: would part question 10 "If event 5. The second was not a membership Committee be termi- tional yes, person’s would a (2) money col- organization; non-profit person such if would make nated event; (3) highly it is doubt- "Yes.” lected pledge?” Gentalas marked Again, the *19 not discriminate the event "did any ful that of case Appendix at I am not aware re- any against any persons in manner” organi- any that a where court found similar Policy. (that quired pledge to required to zation its members 1075 Forbes, 173, 193, 411 114 sion S.Ct. L.Ed.2d Comm’n 523 118 U.S. (1991). Third, (1998). 1633, 1641, compel has S.Ct. 140 L.Ed.2d 875 Forbes, ling excluding explained state interest for events that As if governmental organi property “in of is not public are direct a traditional forum forum, funding eligibility compli designated public zations” it is either a — nonpublic with the Establishment Ac ance Clause. forum or is not a forum at all. cordingly, I that id. at I would 1641. would find conclude that Civic (1) it did not violate Constitution when Events Fund is not a forum at all: event, co-sponsor refused to that in because the administration of the “organize gathering to an annual tended Civic Events Fund necessarily requires Christians,” (2) using taxpayer discretion,” Tucson funds. “editorial “gov when appropriates ernment public funds pro

II mote a particular policy of its own it is involving is not a case denial say This entitled to what it wishes.” Rosenber rather, facilities; “equal it 833, 115 access” ger, 515 U.S. at S.Ct. 2510. simply taxpayer involves the denial of recognized The Court has that when a funding. Appel- If the had denied government’s public administration bandshell, lants access the Demeester property requires discretion,” “editorial it forum, public which is a traditional subject should not be to review to deter- Appellants would be a different case. But if engaging mine it is viewpoint discrimi- were not denied access to the bandshell. Forbes, 1639-40; nation. See Thus, Speech their Free claim can succeed Brownstein, Alan E. Maps Alternative only they if can demonstrate that the Civic Maze, Navigating the First Amendment Fund a type protected Events is of forum (1999); 16 Const. Comment. see by the First Amendment. (Scalia, J., Finley, also 118 S.Ct. at 2184 majority

The Brcnvn, contends that the Fund is concurring); Fordham Univ. v. (D.D.C.1994). a limited forum4 and public that the F.Supp. 701-02 directly refusal to fund events that Supreme examples Court’s of such organizations constitutes view discretionary decisions include: a universi- I point disagree. discrimination. The ma ty’s speaker, selection of a commencement jority’s analysis using of this case forum public speakers institution’s selection of series, is not appropriate doctrine because the for a lecture or a broad- television Civic Events Fund is not a forum at all. programming caster’s selections. addition, Forbes, In Supreme Court case which Forbes the majority urges controlling, is Rosen explained “by these actions berger v. Rector & Visitors the Univ. expression [their] nature will facilitate the Virginia, distinguishable. Id.; is viewpoints of some instead of others.” Chicago Metropolitan see also Acorn v. A. The Civic Events Fund is Not a Fo- Auth., Exposition Pier and 150 F.3d rum. (7th Cir.1998) “[wjhenever (noting government speech, Court has identified three is the business of forum, types public producing of fora: the traditional pro whether television forum, designated public grams making grants and the non- ... or ... exer public inescapable”) forum. See Arkansas Educ. cise of discretion Televi- editorial Downey precise majority 4. As noted in DiLoreto v. Sch. finds state that the Unified Educ., (9th Dist. Bd. 196 F.3d 965 n. 4 "nonpublic Civic Events Fund is a forum 1999), ‘desig Cir. "[t]he contours of the terms DiLoreto, open purpose." for a limited ' public public nated forum and ‘limited fo Nonetheless, purposes F.3d at 967. (citations always rum’ have not been clear.” clarity, majority because the uses the term omitted). Here, majority concludes forum,” public "limited I will use that term in the Civic Events Fund is a "limited my dissent as well. Supra perhaps forum.” 1062. It is more *20 Dist., added). Free School 508 U.S. Consequently, simply Union (emphasis (1993)). 2141, 124 Con- subsidy L.Ed.2d 352 program S.Ct. government a because purpose, govern- concluded that expressive sequently, the Court serves some speech selectivity funding private Finley in in a limited grant process was not ment purpose does not create further that the statute did not public forum and that purposes. Amendment for First forum violate the First Amendment. (Scalia, J., at 2183-85 Finley, 118 S.Ct. in Fin- grant process at issue Like the First Amend- (stating that the concurring) not create the ley, of Tucson did funding”); application to ment “has no “indiscriminately Events Fund Civic Comment, Broivnstein, 16 Constit. diversity pri- views from ‘encourage a Thus, pro- forum doctrine and its ” 134-35. at 2178 speakers.’ Finley, 118 S.Ct. vate viewpoint discrimination against hibition Rosenberger, (quoting distinguishing applicable not here.5 2510). And Moreover, in the grant program in program Finley, pro- similar to the analogous grant to the case is present in is not awarding grants this case cess Finley, in which program “objective” process. Finley, public not a limited concluded was Court (distinguishing selective Finley, In at 2179. forum. See 118 S.Ct. process Finley from Lamb’s grant statute, requir- whether the the issue was “com- Chapel and other cases involved for the Arts ing the National Endowment objective allocating decisions on parably (“NEA”) “decency” when to consider benefits, to a public such as access school the First grants, violated awarding theater”). The municipal auditorium or a In ana- See id. at 2178-79. Amendment. evalu- present in the case Subcommittee program, the Court lyzing grant the NEA funding organizations’ applications ates forum doctrine. See id. apply did not to fund based on and chooses which events analysis that such explained The Court above, not a number of factors. As noted gov- when the appropriate was not because eligible all receive financial events grants, NEA it “does not ernment awards Accordingly, from the Civic Events Fund. indiscriminately ‘encourage diversity because the did not create the Civic ” speakers.’ Id. at 2178 private views from “indiscriminately Events Fund to ‘encour- (distinguishing Rosenberger). Conse- diversity private of views from age subjec- noted that the quently, the Court ” analysis under the forum doc- speakers,’ competitive grant process Fin- tive and Finley, 118 S.Ct. appropriate. trine is not from limited ley significantly was different at 2178. those public forum cases because cases Additionally, concluding that the Civic objective “comparably decisions involved forum, Events Fund is a limited benefits, ac- allocating public on such as majority critical disregards the distinction municipal to a auditorium or a cess school not to government’s between a decision (distinguishing Rosenberger Id. theater.” actual protected activity Moriches fund and the deni- Chapel and Lamb’s Center using viewpoint at 969-70 analyze I were this case discrimination.” Id. 5. Even if doctrine, added). addition, (emphasis I would still conclude that the forum in DiLoreto constitutional, especially City's were actions rejected argument excluding reli- we light recent decision in DiLo of this court's gion subject category always as a consti- or 958; see News reto. See 196 F.3d also Good viewpoint tutes discrimination. Id. at 969. Sch., (2d Club v. Central F.3d 502 Milford argument "mischarac- We stated that such an Cir.2000) (ruling that school's refusal to allow holding Rosenberger” and we terizes the religious organization to use facilities was Rosenberger, merely "[t]he noted that in content, viewpoint). In DiLore- based on refusing only religious held that to fund view- to, we that the school district's refusal ruled (i.e. points otherwise-permissible subjects on religious messages high on permit school viewpoint pregnancy homosexuality) was "permissible, field fence con baseball Id. at 970. discrimination.” forum, tent-based limitation on the and not

1077 id., Regan activity,” City rights. Appel al of constitutional has burdened Wash., Representation Taxation With lants’ speech rights. Consequently, free I 540, 549, 1997, 76 461 U.S. 103 S.Ct. conclude simply cannot that because the (the (1983) government’s “de L.Ed.2d 129 City Tucson selectively elects to fund to subsidize the exercise of a cision not events, civic its to Appellants’ refusal fund right infringe does not on fundamental event violated First Amendment. the. Fordham, right”); F.Supp. 856 at 702. Furthermore, it City is clear Notably, Supreme repeated Court has justified was in excluding events that were ly forcefully emphasized this distinc in direct religious organizations e.g., Finley, tion. 118 S.Ct. at 2179 because “when the appropri- Government U.S, (1998); Sullivan, 193, Rust v. 500 at public program ates funds to establish it 1759; 549, Regan, 111 S.Ct. 461 U.S. at pro- is entitled to define the limits of that 1997; Roe, 103 Maher v. 432 S.Ct. U.S. Rust, 194, gram.” 500 at 111 U.S. S.Ct. 464, 475, 2376, 97 S.Ct. 53 L.Ed.2d 484 1759. Events that funding obtain from the (1977). recently explained As the in City of Tucson having are advertised as Finley, “although the First Amendment City funding, City received employees certainly subsidy has context, operate light and sound equipment at may we note that the Government competitive funding according Additionally, during allocate to these events. these impermissible criteria that would be were events an announcement is made acknowl- regulation of a criminal speech direct or edging City contributed to the penalty at stake.” 118 S.Ct. at 2179. Sim majority services at the event. The ar- ply put, government obligation has “no gues that the could have modified the fund to the exercise of constitutional policy “decry any endorsement Hawaii, rights.” Tipton v. Univ. 15 City” when such events are advertised. (9th Cir.1994). fact, F.3d 926 the Supra -at 1072. But the should not government: engage practice. have to in such a The may “selectively program fund a to en- City created the Civic Events Fund and is courage certain activities it believes to recognition partic- entitled to obtain that it interest, be without at the ipates co-sponsor as a of civic events funding pro- same time alternative Rosenberger, Tucson. See 515 U.S. at which gram prob- seeks to deal with the (“when government ap- 115 2510 S.Ct. way. doing, lem in another In so ‘the propriates public promote par- funds to [g]overnment has not discriminated on policy say ticular of its own it is entitled to viewpoint; merely the basis it has wishes”) Rust, (citing what it 500 at U.S. activity chosen to one to the exclu- fund 1759). 194, 111 S.Ct. ’” sion the other. noted, recently As Justice Sealia “[i]t Rust, Finley, (quoting at 2179 S.Ct. the denial of tax- preposterous equate 1759) (emphasis 500 U.S. at subsidy payer with measures ‘aimed at the added). Finley, suppression dangerous ideas.’ ”. majority explain why does not (Sealia, j., “ concurring) important and ‘basic difference between (quoting Regan, 461 U.S. at protected direct state interference 1997). Here, no there is evidence activity encouragement and state of an ” Policy suppress speech enacted the activity1 alternative is not relevant in the particular viewpoint. ex- Rust, 193, 111 present case. directly support cluded events that reli- Maher, (quoting gious organizations only to ensure that 2376). . majority Nor does the complied with the Establishment Clause. how, in explain light of the Court’s instruc permissible and did not This exclusion protected tion that refusal to fund “[a] more, Speech violate the Free Clause of the activity, equated without cannot be disposition ‘penalty’ with a of a on that First Amendment. at issue objective grant process from the Rosenberger Distinguishable. B. Rosenberger. argument, Appellants’ Contrary Second, in Rosen- emphasized the Court decision Rosen- recent Court’s did involve “reli- berger that the case not the well-established negate berger does See id. gious organizations.” *22 In supra. Rosenber- precedent discussed that “if the The Court noted 2510. S.Ct. subsidizing by that the found

ger, Court subsidizing it is pays a church’s bills State with organizations of student publications it, against this abuse.” guard and we must Fund, Activity from the Student money that subsidiz- recognized the Id. But Court had intended University Virginia the a was not religious organization a ing “encourage speech” a “open forum Rosenberger “the stu- “danger” in because private speak- from diversity of views a institu- religious is not a publication dent 834, 887, 115 2510. at See id. ers.” organization religious “it not a tion” and is that the accordingly concluded The Court University’s regula- in own the [defined] as public a limited University had created contrast, undisputed Id. In is tions.” 837, 2510. 115 S.Ct. id. at forum. See religious organization is Appellants’ 3, University 1, a lim- had created at 5. Appendix Because the See organization. forum, the held that the Court public ited Third, City present in the unlike the publica- all University could not exclude events, the co-sponsors which civic case viewpoints editorial tions Rosenberger promot- not University in Rosenberger, See id. Rosenber- grant eligibility. message.6 from its See ing own 835, 2510. As the 515 U.S. reasons. distinguishable several ger is publica- all Rosenberger, noted in First, in funding process present the the funding that received from Stu- tions grant process more akin to case is Activity printed Fund a disclaimer dent used Rosenber- Finley process than the are not declaring groups “that the student funding was avail- Rosenberger, In ger. subject to University’s agents, are not publica- organizations’ for all student able control, responsibility.” its and are its and were criteria tions that met the stated contrast, above, In as noted events Id. of the purposes the educational “related to funding Events Fund obtain from Civic University,” those with ed- except by being co-sponsored are advertised Id. at viewpoints. Moreover, itorial Tucson. an an- Here, City provides declaring financial at the event nouncement is made by City. co-sponsored that the event is that meet only to the events that the Subcommit- Policy’s criteria and taxpayers importantly, Fourth and most Thus, deserving. Activity are most Fund in tee determines not fund the Student did Rosenberger.7 quite is different City’s grant program held, suggested, present that when the distinguishes the case has not or 6. This also fact University have dis- Regents government speaks the ndes we from Board of - Southworth, U.S. System play. v. Wisconsin cussed come into (2000). -, (cita- added) L.Ed.2d 193 (emphasis S.Ct. at Id. 120 Southworth, that a omitted). the Court ruled tions activity university may charge its students an aspect Perhaps troubling of the the most program to facilitate extracurric- fee to fund majority’s opinion suggestion Court, speech. id. The how- ular student Rosenberger general and the student fees ever, emphasized that: present case are not assessments in the tax imply ought not be taken to Our decision supra despite distinguishable, see University, its that in other instances the agents language Rosenberger that Court’s forceful particular employees, im- or or—of addressing an the case "cannot be read as subject portance faculty are to First —its general expenditure from a tax fund." 515 analysis in this Amendment which controls majority 115 S.Ct. 2510. U.S. University speaks, either case. Where the apply argues does not that this distinction regents through its in its own name or officers, "[gjiven administered here that the Fund is ways through myriad or in other rep- composed duly-elected faculties, Council analysis likely diverse its of the residents altogether The Court resentatives would be different. Indeed, Rosenberger organization’s Rosenberger bills. The Court S.Ct. 2510. change did'not this rule —it it. reinforced noting fact that: stressed semester paid each [T]he $14 III designed tax general student is not a assuming City’s Policy Even University.... for the raise revenue Clause, Speech violated the Free the Poli- then cannot be read as Our decision cy is not unconstitutional if it serves addressing expenditure gen- compelling narrowly state interest and is Here, the eral tax disbursements fund. drawn to achieve that end. See Widmar go private from the fund contractors Vincent, 263, 270, that which printing for the cost of (1981). L.Ed.2d 440 of Tuc- protected Speech under the Clause of Policy son enacted the that excludes *23 cry First Amendment. That is a far the directly support religious events which or- general public a assessment de- ganizations violating to avoid the Estab- provide financial signed and effected majority lishment Clause. As even the for support a church. concedes, compliance with the Establish- compelling ment a 841, Clause is state interest. (emphasis Id. at 115 S.Ct. 2510 add- ed). supra (citing Capitol See note 9 at 1066 in O’Connor’s concurrence Justice Pinette, Square and Advisory Rev. Bd. Rosenberger highlighted point, also 758, 761-62, 2440, 515 U.S. 115 S.Ct. 132 may that funds not be stating “[p]ublic (1995) Chapel). L.Ed.2d 650 and Lamb’s religious message,” to endorse the used City Policy Because demonstrated that the provide prece- decisions no “[t ]hese [ ] necessary violating to avoid the Estab- public dent use funds finance Clause, lishment it is constitutional.8 847, Id. at 115 religious activities.” (O’Connor, J., concurring) (emphasis 2510 The Establishment Clause forbids added). Thus, very sent a clear the Court “sponsorship, support, financial and active message Rosenberger taxpayer religious activity.” in that in Com- involvement may pay religious Religious mittee Public Education & money not be used to placement provide event that of a mon- Tucson to civic events for benefits celebrated City Supra city park of the residents of the of Tucson.” ument which commemorated a 1069, Tucson, strongly disagree. n. 10. I That the a Las Posadas historical event taxpayer by "duly- argues funds are administered majority that the festival. The any this or elected officials” does not insulate dem- decision to fund the Las Posadas event other case from about violations of concerns City engaging in view- onstrates that the Establishment Clause. The Establishment point supra See at 1065. I discrimination. exists, part, protect Clause those in play disagree. Las event was a The Posadas minority, protection who without under the sponsored school. Al- that was Amendment, could be forced to live un- First religious story, though play told religious majority-imposed regime. der a religious directly support any event did not Weisman, 577, 592, U.S. 112 S.Ct. Lee v. 505 importantly, organization and more the fund- 2649, (1992) (stating L.Ed.2d 467 ing challenged. of that event was never "inspiration Clause” for the Establishment City The fact that the funded these events that "in the hands of the was the lesson Policy is not hos- demonstrates that the might begin government what as a tolerant religion. funding Under the cri- tile towards expression religious may in a views end teria, organizations religious, can receive coerce.”). policy indoctrinate and funding long for events so as the event does religious organiza- directly support not being necessary to avoid vio- In addition to City could have enacted more re- Clause, tion. The Policy lating the Establishment funding criteria that excluded from strictive sufficiently City’s Policy did not narrow. any relationship reli- events had all religious that any type of exclude all events with Instead, theme, gion, direct or indirect. only directly excluded events that adopt criteria that would chose to narrow support religious organizations. For exam- taxpayer money simply was not fishing ensure that funded the clinic for ple, religious organizations vio- handicapped sponsored used to children which was Church, Clause. a Mormon Battalion lation the Establishment the Lutheran 772, organization. See 756, doctrine or religious Nyquist, U.S. Liberty v. (1973) (citations 590, County Allegheny, L.Ed.2d 948 omitted). majority may Finally, As a not use S.Ct. 3086. County Allegheny recognized amount, funds, large any “in taxpayer Union, 492 Liberties Civil v. American activities or religious small” to 106 L.Ed.2d 109 S.Ct. 3086; Id. at organizations. (1989): Rosenberger, 515 U.S. see also to understand has come this Court 2510; Nyquist, 413 U.S. gov- Clause to mean Establishment or affiliate may promote not ernment could majority asserts that or- doctrine or any religious itself with support religious directly fund events among may not discriminate ganization, in- conferral of because such organizations of their the basis persons on not violate the Es- benefits does cidental may delegate practices, beliefs and at 1068-69. supra tablishment Clause. insti- to a power governmental of incidental the conferral agree I too tution, may not involve itself necessarily implicate the does not benefits affairs. an institution’s deeply in such However, I do not Clause. Establishment (footnotes omit 109 S.Ct. 3086 Id. at funds to taxpayer that the award of agree ted) added). The Court further (emphasis *24 constitutes religious organization a support Establishment Clause noted that Indeed, all of an “incidental benefit.” any tax in that “[n]o “means at least” .majority that deal with by the cases cited small, amount, large or can be levied distinguishable. are incidental benefits institutions, or religious activities support discussion called, See they may be or whatever whatever infra. they may adopt practice to teach or

form example, majority Widmar For cites 591, (quot at 109 S.Ct. 3086 religion.” Id. Vincent, 263, 269, 70 454 U.S. 102 S.Ct. v. Ewing, v. Board Educ. ing Everson of (1981). Widmar, 440 The issue L.Ed.2d 504, 1, 15-16, 67 91 L.Ed. U.S. S.Ct. 330 however, the Universi- simply whether (1947)). that, explained 711 The Court all ty policy, Missouri’s which allowed ‘endorsement,’ key word is “whether the facilities, except to use its groups student ‘favoritism,’ ‘promotion,’ or essential groups, was constitutional. remains the same. The Estab principle 273, 269. The Court id. at 102 S.Ct. least, Clause, very prohib lishment at the religion were that the “benefits” found to take a government appearing its merely they involved incidental because religious be position questions on In con- University facilities. the use of 593-94, Id. at 109 S.Ct. lief....” here, trast, seeking are more Appellants 668, (citing Lynch Donnelly, 465 U.S. forum; they of a are than mere “use” (1984)). 1355, 687, 104 79 L.Ed.2d 604 S.Ct. support financial for their event. seeking City It is clear that if the funded events “inciden- is direct and is not This benefit directly support religious organiza- taxpayers would be only tal” not because tions, would be principles stated above by Appellants’ orga- paying the fees owed event, Appellants’ gathering a violated. nization, money was col- but also because for “Tucson prayer service Chris- organization. at the event for the lected tians,” activi- question, religious is without Moreover, empha- the Court Widmar City may provide not or ty. sponsor for our decision is “[t]he sized that basis religious activity. such support financial University a “created narrow” because 772, Nyquist, 413 at 93 S.Ct. U.S. open groups.” to student generally forum addition, fi- In events that receive 277, in the at 269. But Id. nancial from the Events Civic City did not present case the of Tucson being co-sponsored Fund are advertised generally Fund Civic Events make the may City of Tucson. But the organizations. any non-religious to all promote itself with available or affiliate addition, distinguish- organization lants’- present In case is because would Thus, in that case the paying organization’s from Widmar because 'that able be bills.9 “open that an forum a pointed sought by out Appellants the benefit in this any im- university does not confer public analogous case is not to the incidental primatur approval of state on Lynch benefits involved either or Wid- 276, practices.” sects or Id. S.Ct. mar. If Tucson awarded It is also clear that the of Tucson designed “organize funds to an event may directly not fund evénts that Christians,” gathering of Tucson it would religious organizations under Lemon v. City approved of message send a that the Kurtzman, 403 U.S. 91 S.Ct. 2105 Thus, it cannot religious organization. (1975). Lemon, Supreme Court set “incidental in- be said that benefits” forth three “tests” to determine whether analogous are to the

volved Widmar government practice violates the Estab- Appellants’ organization sought. benefits 612-13, lishment Clause. See id. v. Don majority Lynch also cites S.Ct. 2105. the Lemon analysis, “Under nelly, practice statute or which upon touches re- (1984). Lynch L.Ed.2d 604 The issue in ligion, permissible if it is to be under the city display was whether a could Clause, Establishment must have secular city violating property creche on without purpose; must advance not inhi- neither the Establishment Clause. See id. 685- religion in principal primary bit its ef- 1355. The creche had been fect; and it must not foster excessive displayed city property on the for 40 or entanglement religion.” County years only portion more and was a small Allegheny, 492 109 S.Ct. 3086 larger display. See id. at Lemon, (citing 403 U.S. at 1355. The Court held that the 2105). undisputed purpose It is display city property of the creche on did *25 Civic Events Fund is secular not violate the Establishment Clause be and that neither advances nor inhibits it cause “whatever benefit to one faith or religion principle its effect. primary or indirect, religions or to all religion [was] However, City if the allowed events that remote, 683, and incidental.” Id. at 104 directly religious organizations to sought S.Ct. 1355. Unlike benefits for apply funding, would “foster ex- case, present Lynch noted the Court entanglement religion.” cessive with Id. expenditures for maintenance of “[n]o City’s Subcommittee, which evaluates necessary.” the creche have been Id. at and determines which events should re- 684, addition, In 104 S.Ct. 1355. the Court funding, pick ceive have to would pointed Lynch out that “does not involve a organiza- choose various religious between subsidy church-sponsored direct to schools tions, clearly And impermissible. which is colleges, religious or or other institu City ” serving co-sponsor would be as 685, tions .... Id. at 104 1355. In S.Ct. event, religious providing of- the staff at contrast, City present if the in the case support. the event and financial to fund Appellants’ organi were Furthermore, -if zation, City of Tucson had the benefit to that organization event, remote, funded indirect, Appellants’ would would be neither or inci Indeed, have test. Un- dental. the “benefit” would con violated endorsement Appel- appear- stitute direct financial der the “endorsement test” the religious organization majority argues particular 9. The form that the benefit government spending money "direct” because the of Tucson would not on their required money opposed giving money pay- be to make behalf as to "direct” them Appellants’ organization. supra spend really doesn't ments to for the same cause event, any any disagree. Judge at I stated make sense. an economic As Sneed during being religious organiza- argument, to a oral such a distinction benefit made any "doesn’t make sense—a concession to a tion.” 1082 money endorsement of lie government

anee of reli to subsidize an event “Tuc Christians,” gious messages is unconstitutional. See son perceive would 592-601; 492 County Allegheny, City supports U.S. at faith or Christian reli Dept. gion Tucker v. State in general. impermissible This is un of California (9th Educ., 1204, 97 F.Sd 1215 n. 7 der the Cir. Establishment Clause. See Pi 1996). Scalia, nette, 777, 787-88, 799, Although writing Justice 515 U.S. 2440; 593-94, majority, rejected the Allegheny, endorsement 492 U.S. at Pinette, 3086; Tucker, justices supported test in five 109 S.Ct. at 1215. F.3d 786, threat, Recognizing funding test in that case. See 515 U.S. at 787-88, 797-99, 817-18, 2440; correctly criteria excludes events that di rectly Tucker, 7; support religious organizations. see 97 F.3d at 1215 n. also Sullivan, Parades, M. Kathleen Public City’s Policy If the did not exclude Squares Payments: and Voucher Prob directly events that support religious orga- Neutrality, lems of Government 28 Conn. nizations, would either have to (1996). L.Rev. Under the en grant program entirely, terminate the test, dorsement “when the reasonable ob every religious fund event that requested government practice server would view a funding. The Establishment Clause clear- ... endorsing religion duty as it is our to ly prohibits government preferring from Pinette, practice hold that invalid.” Thus, religion one over another. (O’Connor, J., U.S. at 115 S.Ct. 2440 could not selectively continue to award concurring). Accordingly, the Establish grants “civic events” because such sub- “imposes ment Clause affirmative obli jectivity certainly would create excessive State, gations may require some entanglement religion in violation of situations, steps being take to avoid Lemon, the Establishment Clause. See perceived supporting or endorsing a 612-13, U.S. (O’Con- private religious message.” Id. IV

nor, J., Indeed, concurring). very “at the least, prohibits [the Clause] Establishment taxpayer money pay use of government appearing posi to take a religious organization’s bills is a blatant questions tion on belief.” Id. example anof Establishment Clause viola- (Stevens, J., 115 S.Ct. 2440 dissent tion. Rosenberger, 515 U.S. at ing) (quoting County Allegheny, 2510; Nyquist, 413 U.S. at 3086). 93 S.Ct. 2955. Even assuming that *26 City adopted had a totally “neutral” case, present In the the Civic Events policy, the result would be the same— Fund directly excludes events that taxpayer money would still pay be used to religious organizations to the appear- avoid religious the bills of organizations, which is City-endorsed ance of religious speech. clearly prohibited by the Establishment Events that funding receive are advertised Rosenberger, Clause. See 515 U.S. at having City funding. received Even if 2510; Nyquist, City stop were to advertising funded 93 S.Ct. 2955. disclaimer, events and ap- include a pearance of endorsement would still ex- As Justice O’Connor declared in Rosen- ist.10 Citizens of Tucson have berger, access to there precedent is “no for the use information City spends about how the of public funds to finance activi- taxpayer individual, funds. A reasonable ties.” 515 U.S. at 115 S.Ct. 2510 upon learning (O’Connor, J., pub- allocated concurring). majority The majority argues important, The supra "[i]t note 11 at 1070. There is absolute- when considering ly how the situation of the no for this conclusion in the rec- National having event costs ord. There is no evidence that the event was City's covered geared Fund would be inter- towards adults or that most observers, preted by Thus, to note that most argument attendees were adults. attendees probably of the event pure speculation. were adults.” based on determines will best the Subcommittee single case where pointed not has Moreover, City’s goals. “[t]he further the upheld the this court forbids a State to Clause a Establishment directly support funds taxpayer use formally hide behind organization. studiously and remain criteria neutral majority asserts The ... effects of its actions oblivious to the in the speakers to “all grants award should permissible policies all state are and not basis,” and neutral religiously on a forum simply because Religion Clauses under violate the conduct would that such Pinette, 515 in form.” they are neutral supra at 1072. Clause. See Establishment (O’Connor, J., 777, 115 U.S. at here. option a realistic Clearly that is not concurring). unlimited funds not have City does Policy Tucson’s Civic Event events. Under support civic financially I af- Accordingly, would is constitutional. ap- evaluates policy, the current the district court. firm the decision of only funds those events plications

APPENDIX To Dissent. Pregerson’s Judge *29 Day The National Event for Civic Support

Application Page 2, question Prayer” community Day in our Mayor proclaimed “A Miller has Prayer. proclamation His the annual coordination with National day the observance of a national prayer especially clearly states how and city heritage of our and cultural prayer part of the historical nation. organize gathering an annual purpose of our Tucson committee is to participation day.

Christians to observe We have invited of over 500 ministries, including many Tucson area different churches and Christian denominations and We contacted over 25 groups. ethnic have different officials, inviting asking specific prayer participation their represented. requests. be community The Air Force will The event will There will be hosted radio announcer. be a time local praise and worship youth adult choir. led choir Pastors both local, nine prayer participants different churches state and will lead the national following: including issues die

[*] Improved relationships between different segments of our society. (cid:127) National, prayer requests. specific and their state and locai leaders (cid:127) Law emergency services. enforcement and

(cid:127) Youth, families, neighborhoods and homeless.

(cid:127) Educators and schools. emphasized Patriotism will and music. be die decorations notes public”). Widmar, money payments group “direct to ... a Clause. See 454 U.S. at engaged religious activity,” that is id. at S.Ct. 269. 115 S.Ct. 2510. The own evi- The City argues also this case is dence, however, demonstrates different from Rosenberger because the policy Fund not the kind of is about which Fund is through general created revenue Rosenberger expressed suspi- taxes and the printing-cost fund in Rosen- According management analyst cion. to a berger was created through the assessment City’s Department Budget from the and of student fees. The Supreme Court did Research, money from the Fund never state Rosenberger that its decision “can paid directly sponsors to the event not be read as addressing expenditure —event sponsors request City; services from the from a general tax fund.” Rosenberger, City departments the relevant submit bill- 841, 115 515 U.S. at S.Ct. 2510. While this ing statements to the Fund instead of the question, close we conclude that sponsors; event the costs of the services City presses this difference as a formal