635 F.2d 1310 (8th Cir. 1980), 80-1048, Chess v. Widmar

Docket Nº:80-1048.
Citation:635 F.2d 1310
Party Name:Florian Frederick CHESS, Dale Rhoton, Ronald Barnes, Glenn P. Garrison, Kathleen Anne Aguirre, Douglas Neef, Clark Vincent, James S. Colmer, Jr., Dawn B. Wallace, Jonathan Williams, Malinda Ann McMurray and Katherine Cyman, Appellants, v. Gary E. WIDMAR, The Board of Curators of the University of Missouri, Barbara Berkmeyer, Daniel L. Brenner, Robe
Case Date:August 04, 1980
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1310

635 F.2d 1310 (8th Cir. 1980)

Florian Frederick CHESS, Dale Rhoton, Ronald Barnes, Glenn

P. Garrison, Kathleen Anne Aguirre, Douglas Neef, Clark

Vincent, James S. Colmer, Jr., Dawn B. Wallace, Jonathan

Williams, Malinda Ann McMurray and Katherine Cyman, Appellants,

v.

Gary E. WIDMAR, The Board of Curators of the University of

Missouri, Barbara Berkmeyer, Daniel L. Brenner, Robert A.

Dempster, William T. Doak, C. R. Johnston, Marian Oldham,

Wallace R. Stacey, M. D., Rex Z. Williams and Van O.

Williams, Appellees.

No. 80-1048.

United States Court of Appeals, Eighth Circuit

August 4, 1980

Submitted May 21, 1980.

Rehearing En Banc Denied Sept. 19, 1980.

Certiorari Granted Feb. 23, 1981.

See 101 S.Ct. 1345.

Page 1311

James M. Smart, Jr., Smart & Whitehead, Kansas City, Mo., argued, for appellants; William H. Pickett, Kansas City, Mo., on brief.

Ted D. Ayres, Columbia, Mo., argued, for appellees; Jackson A. Wright, James S. Newberry and Robert L. Ross, Columbia, Mo., on brief.

Charles A. Blackmar and Jane E. Nelson, Kansas City, Mo., for amicus curiae, Bible Study, et al.

Barry A. Fisher, David Grosz and Larry J. Roberts, Los Angeles, Cal., for amicus curiae, Holy Spirit Assoc., et al.

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Before GIBSON, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

This appeal presents the question of whether the University of Missouri-Kansas City, which permits recognized student organizations to use the student center, certain other buildings and the grounds of the University for political, cultural, educational, social and recreational events, may prohibit a recognized student group from using these same facilities for religious worship services or teaching. We hold it may not.

I

BACKGROUND

With the goal of making student free-time activity a cooperative aid to academic study, 1 the University of Missouri-Kansas City (UMKC) encourages the formation of student organizations, boards and committees. The University officially recognizes over ninety student organizations. The University's past and present policy is to permit recognized student groups to use the student center and certain other UMKC facilities for their lectures, discussions, symposiums, meetings, events and programs. Each student is required to pay a student

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activity fee of $41.00 per semester (1978-1979) to help defray the costs of these activities.

Appellant Cornerstone is, and for at least four years has been, an officially recognized student organization on the UMKC campus. It has a nucleus of about twenty active students and its on-campus meetings and events have been attended by up to 125 people.

From 1973 until 1977, Cornerstone sought and obtained permission to use University facilities for its weekly meetings and events. In 1977, however, this practice was terminated by the University on the ground that Cornerstone's meetings violated regulations adopted by the Board of Curators in 1972. The full text of these regulations, which prohibit the use of University buildings or grounds for purposes of religious worship or religious teaching, is as follows:

4.0314.0107 No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. Student congregations of local churches or of recognized denominations or sects, although not technically recognized campus groups, may use the facilities, commonly referred to as the student union or center or commons under the same regulations that apply to recognized campus organizations, provided that no University facilities may be used for purposes of religious worship or religious teaching. The general prohibition against use of University buildings and grounds for religious worship or religious teaching is a policy required, in the opinion of The Board of Curators, by the Constitution and laws of the State and is not open to any other construction. No regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. This provision does apply to such buildings as may be designated under provision of part .0106.

4.0314.0108 Regular chapels established on University grounds may be used for religious services but not for regular recurring services of any groups. Special rules and procedures shall be established for each such chapel by the Chancellor. It is specifically directed that no advantage shall be given to any religious group. ( 2

The University's enforcement of this regulation began with Cornerstone's January 5, 1977, request to continue its use of a particular lecture hall for Saturday night meetings during the spring term. On the University's request form, Cornerstone stated that its purpose was to "promote a knowledge of Jesus Christ among students" and listed the subject of the proposed meetings to be "various topics relating to Christianity and the Bible." The request stated that the meetings and events would be open to the public, no University funds would be used, no admission would be charged and no donations would be solicited. The Dean of Students met with Cornerstone representatives and requested more information regarding the nature and purpose of their meetings. In response, Cornerstone's attorney submitted a letter containing this direct and candid description:

Typical Cornerstone meetings in University facilities usually include the following:

1. The offering of prayer;

2. The singing of hymns in praise and thanksgiving;

3. The public reading of scripture;

4. The sharing of personal views and experiences (in relation to God) by various persons;

5. An exposition of, and commentary on, passages of the Bible by one or more persons for the purpose of teaching practical biblical principles; and

6. An invitation to the interested to meet for a personal discussion.

As you probably already know, these meetings are open to the public. Any students, be they Jewish, Christian, Moslem, or any other persuasion are invited,

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and, in fact, actively recruited by the students in Cornerstone.

Although these meetings would not appear to a casual observer to correspond precisely to a traditional worship service, there is no doubt that worship is an important part of the general atmosphere. There also is no doubt that the undecided and the uncommitted are encouraged and challenged to make a personal decision in favor of trusting in Jesus Christ both for salvation and for the power to live an abundant Christian life on earth.

There are no collections or solicitations of funds at these meetings, and there are no specific rituals or practices of any particular denomination or sect.

Relying on this letter, the University concluded that Cornerstone's meetings would violate its regulations and denied the application on February 4, 1977. The University later refused the group's request to hold small group Bible studies on the University lawn.

In response to these refusals, eleven student members of Cornerstone initiated this action in federal district court, alleging that the University had violated their rights under both the federal and state constitutions. They claimed, inter alia, that the University had deprived them of their rights to free exercise of their religion, freedom of speech and equal protection of the law. Named as defendants were the University's Board of Curators and the Dean of Students. At a pretrial conference, the parties agreed that the case could be submitted on stipulated facts. After the stipulation was filed, cross-motions for summary judgment were made.

On December 11, 1979, the district court granted the defendants' motion and denied the plaintiffs'. It characterized the issue as "whether the university's ban on religious activities in university-owned buildings is required by the establishment clause of the first amendment." Chess v. Widmar, 480 F.Supp. 907, 914 (W.D. Mo. 1979). Using the familiar establishment clause analysis, 3 the district court determined that a neutral policy accommodating all student groups in their use of the University's facilities would clearly reflect a secular legislative purpose and would avoid excessive entanglement with religion. But, analogizing the facts before it to those faced by the Supreme Court in Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), the court found that "a university policy permitting regular religious services in university-owned buildings would have the primary effect of advancing religion." Chess v. Widmar, supra, 480 F.Supp. at 915-916. It concluded "that the university's present ban on religious services in its buildings is required by the establishment clause." Id. at 916 (emphasis added).

Notwithstanding this conclusion, the court then considered whether this ban ran afoul of rights guaranteed by other clauses, particularly the Free Exercise Clause. Initially, it found that no free exercise right was violated since it did not appear that the " 'practice' of holding religious services in a university-owned building is a matter of deep religious conviction to (these) plaintiffs." Id. at 917. Second, it concluded that the infringement, if any, of plaintiffs' free exercise rights was justified by a compelling state interest Missouri's "long history of strict separation of church and state." Id. Finally, the court dismissed the argument that the Free Exercise Clause prevails if the Establishment and Free Exercise Clauses conflict, finding that the conflict is illusory because the two clauses are aimed at separate evils. Id. at 917-918.

The plaintiffs also argued that the University's regulations act as a prior restraint on their free speech rights. Characterizing this as an argument that the Establishment Clause is subordinate...

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