Faith Center Church Evangelistic Ministries v. Glover , 480 F.3d 891 ( 2007 )

ORDER

The final sentence of the seventh paragraph of Section V.A. of the Opinion filed September 20, 2006 and published at 462 F.3d 1194, 1209 (9th Cir.2006), is amended by inserting the following after “See id. at 138 n. 3, 121 S.Ct. 2093, 150 L.Ed.2d 151”: “(Souter, J., dissenting).”

The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

The petition for rehearing en banc is DENIED. Judge Bybee’s dissent from denial of en banc rehearing is filed concurrently herewith.

BYBEE, Circuit Judge,

with whom O’SCANNLAIN, KLEINFELD, TALLMAN, CALLAHAN, BEA and SMITH, JR., Circuit Judges, join, dissenting from the denial of rehearing en banc:

The panel majority’s decision permits the government to single out what it calls “mere religious worship” for exclusion from a forum that it has opened broadly for use by community and cultural groups. In so doing, the majority has disregarded equal-access cases stretching back nearly three decades, turned a blind eye to blatant viewpoint discrimination, and endorsed disparate treatment of different religious groups. I respectfully dissent from the court’s decision not to rehear this case en banc.

I

The Contra Costa County Library makes its rooms generally available to the public for “educational, cultural and community related meetings, programs and activities.” Faith Ctr. Church Evangelistic Ministries v. Glover, 462 F.3d 1194, 1198 (9th Cir.2006). The County’s policy contains several time, place, and manner restrictions, along with one purportedly content-based restriction: The rooms “shall not be used for religious services.” Id. at 1198-99. All other meetings — including those involving religious speech short of “services” — are welcome to the library.¹

Faith Center Evangelistic Ministries Outreach reserved a meeting room at the County’s Antioch Library for a four-hour period. In its promotional flyers, Faith Center described the scheduled meeting as having two components: two hours in the morning for a “Wordshop” entitled “ ‘The Making of an Intercessor,’ an End-Time call to Prayer for every Believer, and how to pray fervent, effectual Prayers that God hears and answers,” and two hours in the afternoon for a “Praise and Worship” meeting, including a sermon. The library ultimately advised Faith Center that it could conduct its '“Wordshop” but not its “Praise and Worship” session. The district court enjoined the County’s policy because it was likely to result in impermissible viewpoint discrimination. Faith Ctr. Church Evangelistic Ministries v. Glover, 2005 WL 1220947, at *1 n. 1 (N.D.Cal.2005).

A divided panel disagreed with the district court. The majority declared that “[p]ure religious worship ... is not a secular activity that conveys a religious viewpoint on [an] otherwise permissible subject matter.” Faith Ctr., 462 F.3d at 1210. Thus, religious worship “is not a viewpoint but a category of discussion,” and a “blanket exclusion of religious worship services from the forum is [a permissible one] based on the content of speech.”² Id. at 1211. Judge Tallman dissented, accurately describing the County as having “draw[n] an arbitrary line in the sand.” Id. at 1217 (Tallman, J., dissenting).

II

Beginning with Widmar v. Vincent, 454 U.S. 263, 267, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the Supreme Court has consistently held that once the government establishes a forum open generally to use by the public, it “assume[s] an obligation to justify its discriminations and exclusions under applicable constitutional norms.” Under these norms, the government must grant both religious and non-religious groups access to the forum on equal terms. In other words, the government can exclude religious speech only if the content of that speech is not germane to the purposes of the forum or if the expressive activity violates standard time, place, and manner restrictions on the forum’s use. See Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 830, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). But the government cannot exclude religious speech simply because of its religious character.

The panel majority, however, authorized the County to do just that. It upheld the County’s policy prohibiting the use of its library meeting rooms for “religious services” even though those rooms were otherwise generally open for “educational, cultural and community related meetings, programs and activities.” “Religious services” undeniably fall within the broadly stated purpose of the forum, and Faith Center’s worship services indisputably complied with all of the time, place and manner regulations governing use of the meeting room. In other words, the County’s sole basis for excluding Faith Center from the library was the religious character of its speech activities.

By permitting the County to “justify its discrimination[ ] and exclusion[ ]” based on the religious nature of the speech, see Widmar, 454 U.S. at 267, 102 S.Ct. 269, the majority has effectively relegated religious worship to an inferior status vis-á-vis community and cultural speech that claims a secular component. This disparate treatment effectively nullifies the Supreme Court’s statement in Widmar that “religious worship and discussion ... are forms of speech and association protected by the First Amendment,” id. at 269, 102 S.Ct. 269, and runs counter to the equal access cases that follow Widmar. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001); Rosenberger, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700; Lamb’s Chapel v. Ctr. Moriches Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993).

A

In Widmar, the University of Missouri-Kansas City had enacted a policy governing access to university facilities that was uncannily similar to the policy here: It barred the use of university buildings, which were generally open to use by student groups, “for purposes of religious worship or religious teaching.” Widmar, 454 U.S. at 265 n. 3, 102 S.Ct. 269. Pursuant to this policy, the university denied an evangelical student group permission to use university facilities, in part because some of its activities consisted of religious worship.³ Id. at 265, 102 S.Ct. 269. The Court held that this type of discrimination against groups seeking to engage in “religious worship and discussion” was improper because “[tjhese are forms of speech and association protected by the First Amendment.” Id. at 269, 102 S.Ct. 269.

Given the close parallels between the policy and expressive activity involved in this case and those at issue in Widmar, the panel should have summarily affirmed the district court. The classrooms in Widmar were open broadly to the university community just as the library’s rooms here were open broadly to community and cultural groups. Like the student group in Widmar, the church here sought access for both worship and non-worship speech activities. As in Widmar, there was no constitutional basis for distinguishing between permitted and prohibited forms of speech.

As the Court has explained in subsequent decisions, Widmar’s equal access rule imposes two requirements. First, once the government has opened a limited forum, it “must respect the lawful boundaries it has itself set” and “may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum.” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510 (internal quotations omitted). Second, even if the exclusion reasonably relates to the purpose of the forum, any restriction must be viewpoint neutral. Lamb’s Chapel, 508 U.S. at 397-98, 113 S.Ct. 2141. The religious character of the speech is simply irrelevant to both of these requirements.

Thus, in Lamb’s Chapel, where a school district had opened its property for “social, civic, and recreational uses” but prohibited groups from using its property for “religious purposes,” 508 U.S. at 387, 113 S.Ct. 2141, the Court held that the district had applied its policy unconstitutionally when it refused to grant access to the forum to a group wishing to show a film dealing with family issues and child rearing from a religious perspective, id. at 393-94, 113 S.Ct. 2141. The film “dealt with a subject otherwise permissible under [the school district’s policy], and its exhibition was denied solely because the series dealt with the subject from a religious standpoint.” Id. at 394, 113 S.Ct. 2141. Denial of access based on the religious nature of the speech constituted impermissible viewpoint discrimination.⁴

Similarly, in Rosenberger, the Court held that the University of Virginia’s policy of denying funds to student newspapers with “religious editorial viewpoints” violated the First Amendment because the university had excluded a particular perspective on “subjects ... otherwise within the approved category of publications.” 515 U.S. at 831, 115 S.Ct. 2510. It was irrelevant both that some of the “viewpoints” were uniquely religious and lacked a secular counterpart and that the university’s restriction, which barred all uniquely religious content, excluded “an entire class of viewpoints.” Id. As the Court noted, “exclusion of several views ... is just as offensive to the First Amendment as the exclusion of only one.” Id.

In Good News Club, the Court confirmed that even “quintessentially religious” speech, including worship and evangelization, cannot be excluded from a forum so long as that speech is reasonably related to the purposes of the forum. 533 U.S. at 111, 121 S.Ct. 2093. In that case, the school had set aside the forum for use by “any group that promote[s] the moral and character development of ehil-dren.” Id. at 108, 121 S.Ct. 2093 (internal quotations omitted) (alteration in original). Although the speech at issue had components that could be described only as “religious worship,” the Court concluded that it “address[ed] a subject otherwise permitted under the rule ... from a religious standpoint.” Id. at 109, 121 S.Ct. 2093. Because there was no difference between the Club’s invocation of Christianity and “the invocation of teamwork, loyalty, or patriotism by other associations” in addressing a matter germane to the purpose of the forum, the school could not rely on the religious nature of the former in excluding the Club. Id. at 111-12, 121 S.Ct. 2093.

Faith Center’s speech here fits squarely within the protections erected by these cases. As noted above, religious services — both as religious expression per se, see, e.g., J.S. BACH, Mass in B Minor, and as vehicles for moral and theological teaching — bear a reasonable relationship to the “educational, cultural and community” purposes for which the County has set aside its library meeting rooms. Given this relationship, the County’s express exclusion of religious speech — and only religious speech — is a pure viewpoint-based exception and is plainly prohibited by the First Amendment.

B

The majority attempts to avoid the great weight of these cases by arguing that “mere religious worship” is not a viewpoint but a separate category of discussion distinguishable from other religious speech. The majority argues that, unlike the religious speech at issue in the Supreme Court’s equal access jurisprudence, “mere religious worship” has no secular counterpart on which it provides a religious perspective; in other words, under the majority’s view, whether religious speech offers a viewpoint is judged entirely by a secular standard, and the absence of a secular counterpart means that “mere worship” can be treated as a separate, and perhaps unique, category of speech. See Faith Ctr., 462 F.3d at 1210-11. The majority further argues that the Court itself recognized “mere religious worship” as a separate — and constitutionally inferior — category of speech in Good News Club. See id. at 1209. None of these objections survives close scrutiny.

First, Widmar rejects outright any attempt to make “a distinction between the kinds of religious speech explicitly protected by the Court’s cases and a new class of religious speech act[s] constituting worship.” Widmar, 454 U.S. at 269 n. 6, 102 S.Ct. 269 (citation and internal quotations omitted) (second alteration in original); see also id. at 284-86, 102 S.Ct. 269 (White, J., dissenting). The Court noted “at least” three difficulties with the proposed distinction: (1) it lacks intelligible content; (2) it is not “within the judicial competence to administer”; and (3) it is a constitutionally irrelevant basis for distinguishing among different types of religious speech. Id. at 269, 102 S.Ct. 269 n. 6. Even if Widmar’s express rejection of the panel majority’s distinction were not dispositive, the distinction would still collapse under the weight of these three objections.

Second, Rosenberger undermines the viability of the content/viewpoint distinction in this context. The Court noted in that case that “discrimination against one set of views or ideas is but a subset or particular instance of the more general phenomenon of content discrimination.” Rosenberger, 515 U.S. at 830-31, 115 S.Ct. 2510 (citing R.A.V. v. St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)). Although religion can be classified both as a subject area and as a viewpoint, the Court explained that exclusion of religious speech constitutes impermissible viewpoint discrimination because it involves “a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered.” Id. at 831, 115 S.Ct. 2510. Notably, the Court treated speech activity that lacked a secular corollary, such as proselytization, no differently from that which offered a religious viewpoint on an otherwise secular topic.

Within the Rosenberger framework, the panel majority simply has no basis for drawing the line at worship in this context. The library has opened its rooms for cultural and community activities, an exceptionally broad category of speech that includes religious speech. The County acknowledges that religion as such is an “otherwise permissible category” that falls within the scope of the forum’s stated purposes, but' it expressly bars a particular subset of constitutionally protected speech — worship—that addresses religious, not to mention community, social, moral, and educational, matters from a particular viewpoint.⁵

There are, of course, perfectly permissible means by which categories of speech— including worship activities — could be excluded from the library. For example, if the library had set aside its meeting rooms for book clubs, it could certainly exclude every other category of expressive activity that did not fall within the purposes of the forum. The library could exclude worship services that were not book clubs, just as it could exclude political debates and city council meetings. What it could not do is exclude book clubs discussing the Koran, the Torah, or the Tibetan Book of the Dead. Or the library might open its meeting rooms broadly, while prohibiting food or drink. That policy would exclude meetings at which communion might be served, or a Seder celebrated, or prashad distributed, just as it would exclude serving refreshments at a Boy Scout Court of Honor or tea at a meeting of the Garden Club. What the library cannot do is permit food and drink except when it is consumed in connection with religious services. See 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). But that is exactly what the library has done here: It has opened the forum to all community and cultural speech except such speech that encompasses a viewpoint that is unique to religion.

Third, contrary to the panel majority’s view, Good News Club does not support the separation of “mere worship” from other religious speech. In making this distinction, the majority relies heavily on footnote four of the Court’s opinion in Good News Club, which it reads as distinguishing between the Club’s activities and “mere religious worship.” See Faith Ctr., 462 F.3d at 1209 n. 4. However, any distinction drawn by the Court makes sense only in the context of the narrowly defined forum in that case.

In Good News Club, New York had adopted regulations under which school boards could open the schools to public use. 533 U.S. at 102, 121 S.Ct. 2093. One of the authorized purposes was for “teaching morals and character development to children.” Id. at 108, 121 S.Ct. 2093. Nevertheless, the school rejected a request by the Good News Club to use the school’s facilities for that purpose. Id. at 103-04, 121 S.Ct. 2093. The Court found that it was “clear that the Club teaches morals and character development to children,” and held that it was irrelevant that the Club offered a religious perspective on that subject. Id. at 108, 110-12, 121 S.Ct. 2093. The Court held that “speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint.” Id. at 112, 121 S.Ct. 2093.

In a footnote responding to Justice Souter’s dissent, the Court “conelude[d] that the Club’s activities [did] not constitute mere religious worship, divorced from any teaching of moral values.” Id. at 112, 121 S.Ct. 2093 n. 4. The Court was pointing out only that the Club’s activities were reasonably related to the purposes of the limited forum; in that sense, the Club’s activities were not “mere religious worship” lacking any connection to the purpose of the forum. If the Club had attempted to conduct worship that contained no references to moral and character development in children, the school could have denied permission for such use, just as it could have denied permission for a “mere political discussion” or a “mere Tupperware party” also devoid of such content. The relevant distinction was between “mere religious worship” and worship that bore a relationship to the narrow purposes of the dedicated forum, not between a category of fully protected religious speech with a secular component or counterpart and speech that is less protected because it is exclusively religious. Here, the County has opened its library meeting rooms generally to community groups for a wide range of cultural and community activities; the distinction between “mere religious worship” and other forms of religious speech is thus utterly irrelevant. Whatever “mere religious worship” involves, it is both a cultural and a community activity and as such certainly constitutes an “otherwise pérmis-sible subject! ]” under the County’s policy. See Good News Club, 538 U.S. at 112, 121 S.Ct. 2093.

m

The likely effect of the majority’s rule in the real world confirms that it ratifies viewpoint-based discrimination and raises profound Establishment Clause concerns. The Court has “consistently and firmly deprecated” government policies favoring one religion over another, Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), and subjects to strict scrutiny policies that “facially differentiate! ] among religions,” Hernandez v. Commissioner, 490 U.S. 680, 695, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). The rule established by the majority violates these principles by privileging some religious groups over others.

That the County’s policy treats religious groups differently is clear from even a brief survey of American religious denominations. For example, under the majority’s test, Evangelical and Unitarian groups should generally be granted access: Moral teaching is integral to their services, as are fellowship, singing, and other distinctly non-worship activities. Liturgically oriented denominations such as Episcopalians and Catholics will find themselves subject to greater burdens: The worship elements of their services are more distinct and easily severable from the non-worship elements, and they have more services (such as the Daily Office in the Catholic tradition) that can be characterized in their entirety as “mere worship.”

Furthermore, under the majority’s approach, a diverse range of religions may use the County’s library meeting rooms for “religious services” without fear of County censorship because their services cannot be characterized as “mere worship.” The last half-century has seen a flowering in this country of non-theistic religions that either do not recognize or do not worship any divine being. Rather, these religions — including certain strands of Buddhism, Confucianism, and newer groups such as the American Ethical Union (or Ethical Humanism) — concern themselves primarily, or even exclusively, with ethical principles.

Although each of these groups conducts “religious services” that may be highly ritualistic, none of them — by definition— engages in anything that could plausibly be called “mere worship.” Thus, whether the County was approached by a Buddhist group desiring to conduct a religious service — before a statue of the Buddha and surrounded by candles and incense — consisting of meditation on the Eightfold Path or an Ethical Humanist group scheduling a service devoted to “consecrating [participants’] lives to acting in ways that honor [their] primary commitment to respect the worth and dignity of each person and to create human institutions which enable societies ... to do so as well,” Jone Johnson Lewis, Ethical Culture as Religion, http:// www.aeu.org/religion.html (last visited Feb. 22, 2006), it would have to grant the application under the majority’s rule permitting the exclusion only of “mere worship.” After all, neither group would identify its activities as worship, nor, indeed, does either engage in anything akin to traditional, Judeo-Christian “worship.” Yet to the average outside observer, both services would likely appear indistinguishable from the activities the majority calls “mere worship,” and in fact, both groups would view their activities as quintessential religious activity. That one group would be granted access to engage in such activity and another denied is patently unconstitutional. As the Supreme Court recognized over four decades ago, disparate treatment of theistic and non-theistic religions is as offensive to the Establishment Clause as disparate treatment of theistic religions. See Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); see also Lee v. Weisman, 505 U.S. 577, 617, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (Souter, J., concurring) (noting that a policy that treats theistic religions similarly is not sufficiently universal to avoid Establishment Clause concerns because many religions are non-theistic).

IV

The majority’s rule permits government entities to deny access to a limited public forum made generally available to community groups solely on the basis of the uniquely religious viewpoint of the speaker. In doing so, the majority has jettisoned three decades of equal access jurisprudence, created a constitutionally inferior category of religious speech, and given governments throughout our circuit license to favor certain religions over others. I respectfully dissent from the order denying rehearing en banc.

1 . The library’s policy has undergone some refinement. Prior to 2004, the policy said no "religious purposes.” In mid-2004, the policy was amended to prohibit "religious services or activities.” In late 2004, the Board of Supervisors adopted the current no "religious services” policy. The panel majority’s opinion appears to revise it yet again, narrowing the prohibition to encompass only religious services that consist of “mere religious worship.”

2 . Judge Karlton wrote separately to criticize the Supreme Court's decisions in Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), and Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), for the ''majorities’ disdain of the Jefferson model” and "belief that religious values enhance rather than endanger society.” Faith Ctr., 462 F.3d at 1215 (Karlton, J., concurring). He then observed:

It may be that the majority of the Supreme Court really has doubt about the ability to distinguish between religious practice and secular speech. If so, they need only leave their chambers, go out in the street and ask the first person they meet whether in the instant case the conduct is religious in character. It is simply untenable to insist that there is no difference between a prayer and e.g. political speech. To coin a phrase, one can only pray for the court’s enlightenment.

Id. at 1216.

3 . The group's meetings generally consisted of the typical components of an evangelical worship service: “prayer, hymns, Bible commentary, and discussion of religious views and experiences.” Widmar, 454 U.S. at 265 n. 2, 102 S.Ct. 269. In his dissent, Justice White argued, and the majority appears to have accepted, that the student group's meeting was properly described as religious worship. Compare id. at 269-70, 102 S.Ct. 269 with id. at 283, 102 S.Ct. 269 (White, J., dissenting).

4 . Although the Court did not reach the issue, it subsequently implied that it would also have found the school district’s exclusion unreasonable given the purposes of the forum. As the Court noted, the only reason the group sponsoring the film had not qualified as "a social or civic organization” under the school district’s rules was because of its "religious purposes,” which, of course, it had held to be constitutionally irrelevant. Rosenberger, 515 U.S. at 832, 115 S.Ct. 2510.

5 . The content/viewpoint distinction may have some explanatory power, but in only in very narrow circumstances, such as in public schools or other fora opened for very limited purposes. For example, even though a public school could not permit Good News Club to make announcements over the public address system while forbidding the Hillel Society from doing so, it could forbid them both from using the PA system to conduct devotionals. The time for announcements is dedicated time, and the school may restrict the content of the announcements to germane when-and-where information. Similar content-based restrictions could be imposed if the forum has been established for a very narrow purpose, such as the moral education of children, as in Good News Club.

These considerations are not relevant here. Contra Costa' has opened the library to the broadest of audiences “for meetings, programs, or activities of educational, cultural or community interest.” It is hard to conclude that Faith Center's activities — worship or otherwise — don't fall well within those expansive guidelines.