Gentala v. The City of Tucson, s. 97-17062,97-17069

Citation244 F.3d 1065
Decision Date30 March 2001
Docket NumberNos. 97-17062,97-17069,s. 97-17062,97-17069
Parties(9th Cir. 2001) PATRICIA E. GENTALA and ROBERT A. GENTALA,Plaintiffs-AppellantsCross-Appellees, v. THE CITY OF TUCSON,Defendant-AppelleeCross-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Kevin H. Theriot, Lawrenceville, Georgia, for the plaintiffsappellants-cross-appellees.

Merle Turchik, Deputy City Attorney, Tucson, Arizona, for the defendant-appellee-cross-appellant.

Appeal from the United States District Court for the District of Arizona Frank R. Zapata, District Judge, Presiding. D.C. No.CV-97-00327-FRZ

Before: Mary M. Schroeder, Chief Judge, Ferdinand F. Fernandez, Thomas G. Nelson, Andrew J. Kleinfeld, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon; Dissent by Judge Fernandez; Dissent by Judge Kleinfeld

BERZON, Circuit Judge:

The pivotal question in this case is whether a city may, using tax funds and public employees, provide stage lighting, sound, and other special-event services for a sectarian religious organization's prayer service held in the bandshell of a public park. The City of Tucson believed that to do so would violate the Establishment Clause of the First Amendment. For that reason, although Tucson, through its Civic Events Fund ("Fund"), does provide such support to certain events held in public parks, Tucson declined the National Day of Prayer Committee's request that it provide the equipment and services for its National Day of Prayer gathering. We agree with Tucson that although the Establishment Clause remains a "blurred, indistinct and variable barrier" to government support for religious activity, Lemon v. Kurtzman , 403 U.S. 602, 614 (1971), "the circumstances of [the] particular relationship," id., between Tucson and recipients of Civic Events Fund support is such that Tucson was correct in concluding that the requested funding would have fallen on the Establishment Clause side of that "serpentine" wall. McCollum v. Board of Educ., 333 U.S. 203, 238 (1948) (Jackson, J., concurring). Tucson's decision to refuse Civic Events Fund support to the prayer service's organizers therefore did not run afoul of another First Amendment proscription, against abridging freedom of speech.

I. The Tucson National Day of Prayer Gathering

The Tucson National Day of Prayer Committee ("Prayer Committee") is an organization that, according to its fundingapplication to the City, requires its members to "pledge [a] specific religious belief," namely, Christian, and terminates the membership of any member who does not do so. 1 In the spring of 1997, the Prayer Committee organized a National Day of Prayer gathering described in that application as "an annual gathering of Tucson Christians." As planned and as carried out, the event, open to the public, involved "a time of prayer and worship" led by "[p]astors from nine different churches," and two choirs. More than 500 area church congregations were invited to participate in prayers "for local, state and national issues." Contributions were collected from attendees for the purpose of paying for this event and future similar events.

The Prayer Committee chose to hold its National Day of Prayer service in and around a bandshell in Tucson's Reid Park. The organizers applied for and received a permit from the City to use the bandshell, and the event went forward as planned. Tucson in no way prevented the Prayer Committee from holding its prayer service in Reid Park nor interfered with its doing so, instead allowing the Prayer Committee's organizers and members to use the park, as other citizens may do, "for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. Congress of Indus. Orgs., 307 U.S. 496, 515 (1939).2

The Prayer Day's organizers, including the appellants here, Patricia and Robert Gentala, were not seeking, however, simply to use the park for their event. They also wanted the City to cover the costs of city-supplied lighting and audio systems. The Prayer Committee applied for free use of $340 worth of such equipment and related services for which the City ordinarily charges a fee, observing that "without help, we will have [an] inadequate stage and sound package, as previous years did."

II. The Tucson Civic Events Fund

The City does fund such equipment and services for some private events held in the City's parks, through a fund denominated the "Civic Events Fund." Tucson, however, refused the Prayer Committee's request for support, on the basis of an established policy precluding funding of events directly supporting religious organizations. The reason for the policy, as Tucson notified Patricia Gentala in denying her funding request and has consistently maintained in this litigation, is to avoid Establishment Clause violations.3

Modern Establishment Clause doctrine is a species of constitutional inquiry which, as we shall develop as we go on, abjures absolutist doctrines and emphasizes contextual analysis instead, and in which the devil is, consequently, emphatically in the details. We therefore focus here on the features of Tucson's Civic Events Fund program with, perhaps, unusual specificity.

Tucson charges small fees ($75) for use of bandshells in city parks, but that general fee is not at issue in this case. Additionally, Tucson will provide, for specified fees, certain equipment and services for use at public facilities by any "civic, social, religious, charitable, commercial or other users." The Prayer Committee is therefore eligible to use the available equipment as long as it pays the applicable fee.

The available rental equipment includes, for example, display booths, portable stages, bleachers, portable public address systems, microphones, speakers, extension cords, automated refuse containers, lighting systems and serving tables. For audio and lighting equipment used at the bandshell in Reid Park, the City requires that its staff operate the equipment. The rental fees charged for the use of that equipment therefore include labor charges, and City employees operate the equipment during the event. Ordinarily, an event's organizers pay the necessary fees to the pertinent city department, which, for lighting and audio equipment, is the Parks and Recreation Department.

The City has determined that, aside from allowing the public to use the parks, facilities such as bandshells, and cityowned equipment, the City will "support and encourage" certain "Civic Events." The kinds of events that the City wishes affirmatively to support include those that: "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 . . .[;] generate broad community appeal and participation[;] instill civic pride in the City, state, or nation[;] contribute to tourism[;] or are identified as unique community events."

The City will recognize as a Civic Event only events sponsored by non-profit organizations or "individuals conducting the events on a non-profit basis," that is, "with fund-raising proceeds used for a community benefit." This limitation means that, whether or not they meet the substantive criteria for Civic Event designation, the City does not "support and encourage" corporate picnics, commercial concerts, or private birthday or anniversary celebrations in city parks (although the City does, as we understand the record, permit organizers of such events to use city-owned equipment and personnel if they pay the required fees).4 Also excluded from Civic Event designation and support are events sponsored by organizations that already receive city funding, whether directly or through rent waivers for use of city property. Finally, and critically here, among the events that "may [not ] be considered for City support through the Civic Event process " are "events held in direct support of religious organizations."

As part of its support and encouragement of Civic Events, Tucson maintains a Civic Events Fund, consisting of moneys appropriated from its general coffers and derived from tax revenue, among other sources. Organizers of eligible events may apply for payment from the Fund of any fees incurred for use of city equipment or services. When such financial support is approved, however, the City (with limited exceptions) does not provide any money directly to the event's sponsors. The city department that would ordinarily bill the event's sponsors instead bills and receives payment from the Fund. Of course, both the Fund account and the departmental account are city accounts. To implement its subsidy program, therefore, the City simply transfers on its books the amount of any fees from the Fund to the appropriate department, as "a budgetary means of detailing the costs City departments incur providing in-kind support to Civic Events."

Organizations receiving Fund support are required to: maintain financial records concerning the event and, on request, "provide City staff prompt access to such financial records and any additional financial information about the sponsoring organization"; obtain liability insurance for the event;5 and coordinate the planning of the event with a city Civic Event Coordinator. Additionally, to receive Civic Event Fund support, event organizers must promise to publicize the City's contribution of services in their event advertising and in an announcement made during the event.

In the 1996-97 and 1997-98 fiscal years, the City appropriated $170,760 from its General Fund to the Civic Events Fund. A subcommittee of the City Council made decisions on applications for support of less of than $1,500; the Mayor and the full Council ruled on larger requests.

The Fund application...

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