Faith Center Church Evangelistic v. Glover

• Decision Date: 20 September 2006
• Docket Number: No. 05-16132.,05-16132.
• Citation: 480 F.3d 891
• Parties: FAITH CENTER CHURCH EVANGELISTIC MINISTRIES, a California non-profit religious corporation; Hattie Hopkins, an individual, Plaintiffs-Appellees, v. Federal D. GLOVER, member and Chair of the Contra Costa County Board of Supervisors; Mark Desaulnier; John M. Gioia; Millie Greenberg, members of the Contra Costa County Board of Supervisors; John W. Sweeten; Anne Cain, Contra Costa County Librarian; Patty Chan, Senior Branch Librarian for the Antioch Branch of the Contra Costa County Public Library; Laura O'Donahue, Administrative Deputy Director for the Antioch Branch of the Contra Costa County Public Library; Gayle B. Uilkema, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

480 F.3d 891

FAITH CENTER CHURCH EVANGELISTIC MINISTRIES, a California non-profit religious corporation; Hattie Hopkins, an individual, Plaintiffs-Appellees, v. Federal D. GLOVER, member and Chair of the Contra Costa County Board of Supervisors; Mark Desaulnier; John M. Gioia; Millie Greenberg, members of the Contra Costa County Board of Supervisors; John W. Sweeten; Anne Cain, Contra Costa County Librarian; Patty Chan, Senior Branch Librarian for the Antioch Branch of the Contra Costa County Public Library; Laura O'Donahue, Administrative Deputy Director for the Antioch Branch of the Contra Costa County Public Library; Gayle B. Uilkema, Defendants-Appellants.

No. 05-16132.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 17, 2006.

Filed September 20, 2006.

Amended March 9, 2007.

Silvano B. Marchesi, Kelly M. Flanagan, and Danielle R. Merida, County Counsel, Martinez, CA; Debra S. Belaga and Colleen M. Kennedy, O'Melveny & Myers LLP, San Francisco, CA, for the appellants.

Benjamin W. Bull, Gary S. McCaleb, and Jordan W. Lorence, Alliance Defense Fund, Scottsdale, AZ; Elizabeth A. Murray, Alliance Defense Fund, Washington, D.C.; Timothy D. Chandler, Alliance Defense Fund, Folsom, CA; Terry L. Thompson, Law Offices of Terry L. Thompson, Alamo, CA, for the appellees.

Appeal from the United States District Court for the Northern District of California; Jeffrey S. White, District Judge, Presiding. D.C. No. CV-04-03111-JSW.

Before: PAEZ and RICHARD C. TALLMAN, Circuit Judges, and LAWRENCE K. KARLTON,^* Senior District Judge.

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. 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[ ]" 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-à-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 "[t]hese 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 these forms of speech.

As the Court has explained in subsequent decisions, Wid-mar'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...