Wednesday, January 9, 2002
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Ninth Circuit Sends Church-State Controversy Back to District Court
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals yesterday sent a long-running controversy over a religious group’s use of Tucson, Ariz. city property back to the U.S. District Court for the District of Arizona for further proceedings.
A Ninth Circuit en banc panel voted 10-1 to return the case of Gentala v. City of Tucson to the district judge without further briefing or argument. Judge Ferdinand Fernandez, who dissented from last April’s ruling in favor of the city, was the lone dissenter.
In its previous ruling, the court held 8-3 that the city properly insisted that sponsors of a National Day of Prayer gathering pay the $340 fee for use of a bandshell in a city park, rather than grant a waiver it makes available to many other groups.
Supreme Court Ruling
Two months after that ruling, the U.S. Supreme Court ruled in Good News Club v. Milford Central School, 121 S.Ct. 2093.
The high court held that a New York school district violated the First Amendment by prohibiting a private group that conducts after-school religious activities for children of elementary school age from doing so on school grounds. Since other groups could use the same facilities for secular purposes, the justices said in a 6-3 decision, the district was guilty of viewpoint discrimination.
The justices subsequently sent Gentala back to the Ninth Circuit for reconsideration in light of Good News Club.
Patricia and Robert Gentala applied in 1997 to use Tucson’s Reid Park and take part in a program under which groups may grant waivers of the fees they would normally have to pay for city workers to set up, operate and monitor electrical equipment at the bandshell.
For groups that get the waiver, the city pays employees and equipment charges from a “Civic Events Fund” meant to encourage cultural and civic events in Tucson, and funded by tax money. A stringent set of rules governs what types of events may be funded, and what types of organizations may participate.
One of the rules specifically excludes “events held in direct support of religious organizations.”
The Tucson National Day of Prayer group was permitted to use the park, but officials denied the fee waiver since it would go to support a religious organization. The Gentalas alleged that a policy of denying to a religious organization the funding that was made available to other groups violated the First Amendment’s protection of free speech.
Subsidized Prayer
The Ninth Circuit held that if it granted the waiver, the city would be subsidizing prayer in violation of the Establishment Clause. Judge Marsha Berzon authored the opinion.
Fernandez argued in dissent that in bending over backwards to avoid breaching the Establishment Clause, Tucson officials violated the Free Exercise Clause. “The City has done something very like denying police and fire protection to churches,” Fernandez said.
Judge Andrew Kleinfeld, joined by Judge Kim Wardlaw, filed a separate dissent in which he said the district court should have first found out more about what kinds of waivers the city usually grants and denies.
Copyright 2002, Metropolitan News Company