Church on the Rock v. City of Albuquerque, 95-2009

• Decision Date: 23 May 1996
• Docket Number: No. 95-2009,95-2009
• Citation: 84 F.3d 1273
• Parties: CHURCH ON THE ROCK; Don Kimbro, Pastor, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE; Toni Martorelli, in her official capacity as Director of Family and Community Services for the City of Albuquerque; Mark Sanchez, in his official capacity as Deputy Director of Family and Community Services for the City of Albuquerque; Kathleen Stark, in her official capacity as Supervisor, Bear Canyon Senior Center, City of Albuquerque, Defendants--Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1273

84 F.3d 1273

64 USLW 2751

CHURCH ON THE ROCK; Don Kimbro, Pastor, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE; Toni Martorelli, in her official capacity as Director of Family and Community Services for the City of Albuquerque; Mark Sanchez, in his official capacity as Deputy Director of Family and Community Services for the City of Albuquerque; Kathleen Stark, in her official capacity as Supervisor, Bear Canyon Senior Center City of Albuquerque, Defendants--Appellees.

No. 95-2009.

United States Court of Appeals Tenth Circuit.

May 23, 1996.

Benjamin W. Bull, The American Center for Law and Justice, Phoenix, Arizona (Jay Alan Sekulow, The American Center for Law and Justice, Washington, DC, Nikolas T. Nikas, The American Center for Law and Justice, Phoenix, Arizona, and Paul F. Becht, Becht Law Firm, Albuquerque, NM, with him on the briefs), for Appellants.

William D. Winter, Assistant City Attorney (Robert M. White, City Attorney, with him on the brief), Albuquerque, NM, for Appellees.

Before TACHA, LOGAN, and REAVLEY, ^* Circuit Judges.

TACHA, Circuit Judge.

Plaintiffs Church on the Rock and Pastor Don Kimbro ("Church on the Rock") brought suit under 42 U.S.C. § 1983 alleging that defendants the City of Albuquerque and its agents ("the City") denied Church on the Rock's First Amendment right to free expression at City Senior Centers. The district court granted summary judgment in favor of the City on all claims. Church on the Rock now appeals, arguing that the City's policy prohibiting "sectarian instruction and religious worship" at City Senior Centers violates the First Amendment. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

I. Background

The City owns and operates six Senior Centers. The centers are multipurpose facilities that provide forums for lectures, classes, movies, crafts, bingo, dancing, physical exercise, and other activities. To become a member of a Senior Center, one need only fill out an application. The sole requirement for membership is that a person be at least fifty-five years old or be married to a member who is at least fifty-five years old. People who use the Senior Centers do not reside there, and all of the programs are voluntary.

Many of the programs at the Senior Centers are organized and sponsored by private individuals or organizations. Senior center policies permit non-member groups to use the centers for classes and other activities if the subject matter is "of interest to senior citizens." Alternatively, groups may use the Senior Centers without regard to this subject matter requirement if they are composed of seventy-five percent or more senior citizens. Nonmembers or persons under fifty-five years of age may conduct classes, and people who deliver lectures or teach classes are also permitted to distribute literature.

The range of subjects that qualify as being "of interest to senior citizens" is quite broad. The Senior Centers' activities catalogs list many of the programs that meet this requirement, such as Amateur Radio, Ceramics, Chinese, Choral Group, Economics, El Abuelo--The Clown of Spanish Culture, Fishing, Medicare/Health Insurance Counseling, Myth of the Hanging Tree, and Plants and People of New Mexico. The catalogs also include a number of classes and presentations in which religion or religious matters are the primary focus: Bible as Literature, Myths and Stories About the Millennium, Theosophy, and A Passover Commemoration (an oratorio). The catalogs encourage "ideas for new classes and programs" as well.

On March 24, 1994, Pastor Kimbro, a citizen over the age of fifty-five, requested permission from Kathleen Stark, the supervisor of the Bear Canyon Senior Center, to show a two-hour film entitled Jesus. The film recounts the life of Jesus Christ as described in the Gospel of Luke. At the conclusion of the story, a voice-over narrator makes affirming statements such as, "Jesus is exactly who he claimed to be--the Son of the Lord, the Savior of all mankind." The narrator then invites viewers to adopt the Christian religion and to join him in a short prayer. Kimbro also requested permission to give away giant-print New Testaments to persons attending the film.

On May 18, 1994, after reviewing the film, Mark Sanchez, the City's Deputy Director of Family and Community Services, denied Kimbro's requests. Sanchez stated that City policy prohibited the use of Senior Centers "for sectarian instruction or as a place for religious worship." The City adopted this policy to conform with the terms of the Older Americans Act. The Older Americans Act provides federal funding to the states for multipurpose senior centers, but requires, as a condition for receiving such funding, that the "facility will not be used and is not intended to be used for sectarian instruction or as a place for religious worship." 42 U.S.C.A. § 3027(a)(14)(A)(iv).

In keeping with this directive, Senior Center personnel screen programs for sectarian instruction or religious worship before allowing them at the Senior Centers. Senior Center employees also monitor presentations for religious content by sitting in on classes and entertaining objections from Senior Center members who call attention to expression falling into one of these forbidden categories. When Senior Center employees determine that presentations are too religious in nature, they intervene to stop the presentations. There are no official criteria or written standards to assist them in deciding whether or not expression constitutes "sectarian instruction" or "religious worship."

Church on the Rock filed this suit seeking declaratory and injunctive relief. The district court granted summary judgment in favor of the City. In its decision, the court assumed without deciding that the Senior Center is a designated limited public forum. The court stated that the purpose of the Senior Center does not include sectarian instruction, and that the primary purpose of the film Jesus is to proselytize. The court concluded that the film constitutes sectarian instruction and that the City may therefore exclude the film on the ground that its subject matter is not within the purpose of the Senior Centers. The court also held that the City's restriction is not viewpoint-based because the City does not permit sectarian instruction from any religious perspective. This appeal followed.

II. The Degree of First Amendment Protection Afforded to the Expression

We review the district court's grant of summary judgment de novo. Cannon v. City and County of Denver, 998 F.2d 867, 870 (10th Cir.1993). We begin our analysis by noting that the speech in question is entitled to First Amendment protection. It is well established that religious worship and discussion are forms of speech and association protected by the First Amendment. Widmar v. Vincent, 454 U.S. 263, 269, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981); Heffron v. International Soc. for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2563-64, 69 L.Ed.2d 298 (1981). The City argues that the proselytizing religious speech in the film Jesus enjoys a lesser degree of First Amendment protection than does religious speech that is not intended to recruit new believers. The Supreme Court, however, has rejected the notion that speech about religion, religious speech designed to win converts, and religious worship by persons already converted should be treated differently under the First Amendment. Widmar, 454 U.S. at 269 n. 6, 102 S.Ct. at 274 n. 6; see also Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394-96, 113 S.Ct. 2141, 2148, 124 L.Ed.2d 352 (1993) (describing the fear that proselytizing by a "radical" church might cause unrest as "difficult to defend as a reason to deny the presentation of a religious point of view about a subject the District otherwise makes open to discussion on District property"). The City's policy, then, restricts speech that is entitled full protection under the First Amendment.

III. The Nature of the Forum

The government's ability to restrict protected speech by private persons on government property depends, in part, on the nature of the forum. Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 797, 105 S.Ct. 3439, 3446, 87 L.Ed.2d 567 (1985). The three types of forums that may exist on government property are traditional public forums, designated public forums, and nonpublic forums. Id. at 802, 105 S.Ct. at 3449. Traditional public forums are places such as streets and parks that "by long tradition ... have been devoted to assembly and debate." Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). Designated public forums are those "created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449. Thus, designated public forums may be limited in terms of participants and in terms of subject matter. University facilities opened for meetings of registered student organizations qualify as a designated public forum, Widmar, 454 U.S. at 267-68, 102 S.Ct. at 273-74, as do public school classrooms that are available to the general public outside of school hours for limited purposes, Lamb's Chapel, 508 U.S. 384, 390-94, 113 S.Ct. 2141, 2146-47. In Rosenberger v. Rector & Visitors of Univ. of Va., --- U.S. ----, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), the Supreme Court treated a university's student activities fund as a designated public forum, albeit "more in a metaphysical than in a spatial or geographic sense." Id. at ----, 115 S.Ct. at 2517. A nonpublic forum is government property that is not by tradition or designation a forum for public communication. Perry, 460 U.S. at 46, 103 S.Ct. at 955-56.

The Bear Canyon Senior Center is a designated public...