Patricia E. Gentala and Robert A. Gentala,plaintiffs-Appellantscross-Appellees v. The City of Tucson,defendant-Appelleecross-Appellant ( 2001 )

FERNANDEZ, Circuit Judge,

dissenting:

As I see it, this case is not about speech, or viewpoints of speakers, at all. It is solely about outright discrimination against religious organizations. As such, it does violate the First Amendment, but not the clause which precludes government from “abridging the freedom of speech.” Rather, it violates the clauses which command that government “shah make no law respecting an estabhshment of religion, or prohibiting the free exercise thereof.” As I shall explain, that does not make the law any less mahgnant.

Because it is where the City of Tucson (as well as the majority) starts, I shall first address the speech issue, and in so doing I shall begin with the City’s “Civic Event Policy Statement and Evaluation Criteria.” That is both inclusive and exclusive. It provides for City support of civic events which either “celebrate and commemorate the historical, cultural and ethnic heritage of the City and the nation, or increase the community’s knowledge and understanding of critical issues,” or “generate broad appeal and participation,” or “instill civic pride,” or “contribute to tourism,” or “are identified as unique community events.” A large menu of choices of great breadth! The support of those events does not come in the form of cash paid to the sponsoring organizations; it comes in the form of accounting transfers within the City’s departments to defray such “typical event-related services” as police protection, clean up (including street sweeping), use of park event equipment, and the like.

A wide array of non-profit organizations, indeed almost all of them, can participate. The only types of organizations excluded at the threshold are those that are receiving a special City benefit already, and religious organizations. As the policy puts it, “events held in direct support of religious organizations” are not eligible for support.

The parties spill a great deal of ink over whether the fund thus created is a forum and, if so, just what type of forum it is. The purpose of that liquid flood is to decide just what restrictions the City can place upon speech, if any. Of course, it is a commonplace that the government can have, and sponsor, a restrictive viewpoint, if it is the speaker. See, e.g., Rust v. Sullivan, 500 U.S. 173, 192-200, 111 S.Ct. 1759, 1771-76, 114 L.Ed.2d 233 (1991); Downs v. Los Angeles Unified School District, 228 F.3d 1003, 1013-16 (9th Cir.2000); cf. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 586-88, 118 S.Ct. 2168, 2178-79, 141 L.Ed.2d 500 (1998) (grants need not be entirely neutral); Regan v. Taxation With Representation, 461 U.S. 540, 544-51, 103 S.Ct. 1997, 2000-04, 76 L.Ed.2d 129 (1983) (government can choose not to subsidize lobbying with tax exemptions). On the other hand, if some sort of forum is created, the government cannot “discriminate against speech on the basis of its viewpoint.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 2517, 132 L.Ed.2d 700 (1995). Rather, the government’s restrictions on speech must remain reasonable and viewpoint neutral. See Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 392-93, 113 S.Ct. 2141, 2147, 124 L.Ed.2d 352 (1993). Not surprisingly, that includes religious speech and viewpoints. Cf. Widmar v. Vincent, 454 U.S. 263, 269, 277, 102 S.Ct. 269, 274, 278, 70 L.Ed.2d 440 (1981) (content based restrictions on religious speech were not reasonable). The tour through the debates in this area is, and always has been, an extremely exciting excursion, but in the context of this case its relevance is equally exiguous. In fact, the policy at hand does not key on the viewpoint of the speaker at all.

A careful reading of the policy makes it clear that what the City has decreed is that an event cannot directly benefit a religious organization. So, for example, if a religious organization put on a perfectly secular play for the entertainment of the public — say “Pygmalion” — and derived some benefit from that, consideration for support would be precluded at the threshold. That would not, one presumes, be because of the viewpoint of George Bernard Shaw or of the performers of the play. It would be because a religious organization was deriving direct support from it. On the other hand, if a secular non-profit organization put on a prayer program, even one solely and generally Christian, consideration for support would not be precluded. Certainly it could not be said that something as broad as a general chiliastic prayer would directly support any religious organization. Again, the lack of a threshold exclusion would not depend on the viewpoint of the speakers. In short, I think it is a mistake to fassick in the fields of freedom of speech. What we must do, instead, is turn our gaze on the hostility to religious organizations which is expressed by the policy in question.

As I have written before, “the Supreme Court [has] reminded us that laws of general application do not run afoul of the religion clauses; rather, those clauses assume and require an evenhanded neutrality both toward and on behalf of religious belief.” Goehring v. Brophy, 94 F.3d 1294, 1306-07 (9th Cir.1996) (Fernandez, J., concurring); see also Walker v. San Francisco Unified Sch. Dist., 46 F.3d 1449, 1470 (9th Cir.1995) (Fernandez, J., concurring and dissenting) (“I ... applaud the majority’s overall analysis, which ultimately looks upon the establishment clause as a kind of equal protection clause.... ”). But hostility is obviously anathema where neutrality is required. As the Supreme Court has cogently put it, “government may not ... impose special disabilities on the basis of religious views or religious status.” Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 1599, 108 L.Ed.2d 876 (1990). While government regulations and programs may interfere with the particular beliefs of some citizens, the religion clauses do not bar “application of a neutral, generally applicable law to religiously motivated action.” Id. at 881, 110 S.Ct. at 1601. Of course, it must be admitted that some laws which affect religion might be unconstitutional, even though they are neutral, but that is simply because they would be unconstitutional anyway — for example, a law restricting religious speech may well be unconstitutional because it is restricting speech, and it would be just as unconstitutional if the speech were not religious. See id. at 881-82, 110 S.Ct. at 1601-02; see also Board of Educ. v. Barnette, 319 U.S. 624, 634-642, 63 S.Ct. 1178, 1183, 1187, 87 L.Ed. 1628 (1943) (Jehovah’s Witnesses children are not required to participate in flag salute. That does not “turn on one’s possession of particular religious views;” it turns on First Amendment limitations which preclude governmental invasion of “the sphere of intellect and spirit.”). But I digress. The law at hand is not some apparently benign enactment that happens to touch on someone’s religious beliefs. It is, instead, a law aimed directly at religious organizations as such.

In that respect, the policy in question is more like the law that confronted the Supreme Court in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). There the target was really a single religion, but the government is no more benignant when it targets all religions. As Justice Kennedy said:

In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice .... A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.

Id. at 531-32, 113 S.Ct. at 2226. And the Court went on to point out that:

A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance “interests of the highest order” and must be narrowly tailored in pursuit of those interests.

Id. at 546, 113 S.Ct. at 2233 (citation omitted).

Of course, I recognize that the policy in question here does not impose a direct restriction on religious organizations; it simply denies a benefit that is available to virtually everyone else. To my mind, that is a distinction without a difference. It may well be that the government has a great deal of discretion when it grants benefits, and also attempts to distance itself from religion and the religious traditions of the American people. But as the Supreme Court has said, any state interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution ... is limited by the Free Exercise Clause.... ” Widmar, 454 U.S. at 276, 102 S.Ct. at 277.

While it has never been called upon to rule directly on the question, the Court has often expressed its incredulity at any sug-gestión that the Establishment Clause prohibits the extension of general public benefits to religious groups. That feeling is a recurrent theme. As the Court has often stated in varying ways, were it otherwise, “a church could not be protected by the police and fire departments, or have its public sidewalks kept in repair.” Roemer v. Board of Pub. Works, 426 U.S. 736, 747, 96 S.Ct. 2337, 2345, 49 L.Ed.2d 179 (1976); see also Widmar, 454 U.S. at 274-75, 102 S.Ct. at 277; cf. Walz v. Tax Comm’n, 397 U.S. 664, 672-75, 90 S.Ct. 1409, 1413-15, 25 L.Ed.2d 697 (1970) (granting of tax exemptions to churches does not violate the Establishment Clause any more than granting police and fire protection does).

But the City in its anxiety to avoid establishment problems has done just what the neutral demands of the religion clauses refuse to allow; it has run afoul of the Free Exercise Clause while it was at it. The City has done something very like denying police and fire protection to churches. It has allowed all other nonprofit organizations (except those that it already subsidizes) to cross the threshold that gives them the possibility of participation in a fund which allows the use of city facilities and services at no additional cost, but it has excluded religious organizations from those benefits. It is as if the City charged religious organizations, and only religious organizations, when firemen or policemen came to their facilities, or for the repair of sidewalks, or for the use or cleaning of roadways. That cannot be and is not constitutional. As the Supreme Court said over 50 years ago:

[S]uch is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.

Everson v. Board of Educ., 330 U.S. 1, 18, 67 S.Ct. 504, 513, 91 L.Ed. 711 (1947). The City’s policy does handicap religious organizations by refusing to treat them in the way that it treats all other non-profit organizations.¹

Religious organizations are not cankers on an otherwise healthy body politic. On the contrary, they tend to infuse us with all that is best in human nature and history, and they help prevent our democracy from becoming a kakistocracy. They should not be treated with hostility out of bigotry,² or out of misguided constitutional affection, or out of fear of offending someone. They should be treated with neutrality. The Supreme Court has said that government can sometimes act with a “benevolent neutrality.” Walz, 397 U.S. at 676, 90 S.Ct. at 1415. It has never suggested that government can act with a malevolent one. The blessings of our Constitution do not stop short of religion.

Thus, I respectfully dissent.

2 . See Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 2551-52, 147 L.Ed.2d 660 (2000).