Metropolitan News-Enterprise


Monday, March 12, 2007


Page 1


Ninth Circuit Denies Review of Ban on Prayer Service in Library


By a MetNews Staff Writer


y a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals Friday denied en banc rehearing of a Sept. 20 ruling that public libraries whose meeting rooms have been opened to private groups can prohibit use of the rooms for religious worship.

The court said that a majority of its unrecused active judges had voted not to grant review of the panel’s decision, which overturned a preliminary injunction prohibiting Contra Costa County from enforcing such a ban in its public libraries.

The denial drew a dissent from Judge Jay S. Bybee, joined by Judges Diarmuid F. O’Scannlain, Andrew Kleinfeld, Richard Tallman, Consuelo Callahan, Carlos Bea and Milan Smith Jr.

“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,” Bybee wrote. “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.”

The county makes its public library meeting rooms available to the public during library hours for “educational, cultural and community related meetings, programs and activities.” The county prohibits use of the rooms for “religious services,” although other forms of activity related to religion are permitted.

Faith Center Church Evangelistic Ministries is a non-profit religious corporation led by Pastor Hattie Mae Hopkins. Hopkins testified that she believes there are many individuals who need to hear about the gospel of Jesus Christ but who may never enter a traditional church building.

To reach those individuals, Hopkins holds meetings and worship services in non-church buildings under the auspices of Faith Center.

Faith Center applied for and was granted permission to use a meeting room at the branch library in Antioch. A flyer advertising the event divided the day’s activities into a morning “Wordshop” and an afternoon “Praise and Worship” service with a sermon by Hopkins.

Toward the end of the afternoon service, library staff informed Faith Center representatives that they were not permitted to use the meeting room for religious services. The library subsequently rescinded its permission for Faith Center to use the room at a future date.

Faith Center sued to enjoin the county from excluding Faith Center’s proposed religious meetings, asserting that the county’s policy violated the  First Amendment.

In granting the preliminary injunction, District Judge Jeffrey White of the Northern District of California reasoned that religious worship is speech protected by the First Amendment, that religious worship cannot be distinguished from other forms of religious speech, and that he exclusion of religious worship from otherwise permissible speech of a religious nature constitutes viewpoint discrimination.

On appeal, the Ninth Circuit panel reasoned that the meeting rooms are limited public forums—so that restrictions governing their access are permitted so long as they are viewpoint neutral and reasonable in light of the purpose served by the rooms—because of the nature of libraries and because the county requires prior permission for access to the meeting rooms, charges a fee, and excludes schools from using the rooms “for instructional purposes as a regular part of the curriculum” and organizations who wish to engage in “religious services.”

Judge Richard A. Paez, writing for the panel, said the policy constituted a permissible limitation on subject matter rather than an impermissible restriction on the expression of certain viewpoints.

“Religious worship,” he wrote, “ not a viewpoint but a category of discussion within which many different religious perspectives abound....”

In a concurring opinion, Senior U.S. District Judge Lawrence K. Karlton of the Eastern District of California, sitting by designation, said the case should be a “simple” one that “asks whether the county can be forced to subsidize a religious organization’s prayer meetings by requiring it to provide the religious organization with a free place to worship.”

Tallman dissented, saying Faith Center was correct in arguing that it was a victim of viewpoint discrimination.

Bybee Friday picked up on that theme, saying the ruling was contrary to Supreme Court precedent, including a case holding that the University of Virginia violated the First Amendment by categorically denying financial assistance to student newspapers with “religious editorial viewpoints.”

The dissenting jurist wrote:

“Faith Center’s speech here fits squarely within the protections erected by these cases....Religious services—both as religious expression per se...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.”

The case is Faith Center Church v. Glover, 05-16132.


Copyright 2007, Metropolitan News Company