United States 9th Circuit Court of Appeals Reports
FAITH CENTER CHURCH v. GLOVER, 462 F.3d 1194 (9th Cir.
2006) FAITH CENTER CHURCH EVANGELISTIC MINISTRIES, a
California non-profit religious corporation; Hattie
Hopkins, an individual, Plaintiffs-Appellees, v. Federal D.
GLOVER, member and Chair of the Contra Costa County Board
of Supervisors; Mark DeSaulnier; John M. Gioia; Millie
Greenberg, members of the Contra Costa County Board of
Supervisors; John W. Sweeten; Anne Cain, Contra Costa
County Librarian; Patty Chan, Senior Branch Librarian for
the Antioch Branch of the Contra Costa County Public
Library; Laura O’Donahue, Administrative Deputy Director for
the Antioch Branch of the Contra Costa County Public
Library; Gayle B. Uilkema, Defendants-Appellants. No.
05-16132. United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 17, 2006. Filed September 20,
2006. Page 1195
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 1196
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 1197
Silvano B. Marchesi, Kelly M. Flanagan, and Danielle R.
Merida, County Counsel, Martinez, CA; Debra S. Belaga and
Colleen M. Kennedy, O’Melveny & Myers Page 1198 LLP, San
Francisco, CA, for the appellants.
Benjamin W. Bull, Gary S. McCaleb, and Jordan W. Lorence,
Alliance Defense Fund, Scottsdale, AZ; Elizabeth A. Murray,
Alliance Defense Fund, Washington, D.C.; Timothy D.
Chandler, Alliance Defense Fund, Folsom, CA; Terry L.
Thompson, Law Offices of Terry L. Thompson, Alamo, CA, for
the appellees.
Appeal from the United States District Court for the
Northern District of California; Jeffrey S. White, District
Judge, Presiding. D.C. No. CV-04-03111-JSW.
Before: RICHARD A. PAEZ and RICHARD C. TALLMAN, Circuit
Judges, and LAWRENCE K. KARLTON,[fn*] Senior District
Judge.
[fn*] The Honorable Lawrence K. Karlton, Senior United
States District Judge for the Eastern District of
California, sitting by designation.
PAEZ, Circuit Judge:
This appeal from the grant of a preliminary injunction
involves an evangelical Christian church seeking access to
a public library meeting room to conduct, among other
activities, religious worship services. We are called upon
to navigate between two equally important interests: the
church’s right to access a government building that is open
to other groups, and the government’s right to preserve its
property for its intended uses. We conclude that the
district court erred when it found that the church was
likely to succeed on the merits of its First Amendment
claim and therefore abused its discretion in granting
preliminary injunctive relief. We have jurisdiction under
28 U.S.C. § 1292, and we reverse in part and remand.
I.
The relevant facts are not disputed. Contra Costa County
(“County”) makes available to the public its public library
meeting rooms during operating hours. The County’s goal in
making these meeting rooms available is “to encourage the
use of library meeting rooms for educational, cultural and
community related meetings, programs and activities.”
Pursuant to the County’s library meeting room policy,
“[n]on-profit and civic organizations, for-profit
organizations, schools and governmental organizations” may
use the meeting room space for “meetings, programs, or
activities of educational, cultural or community interest.”
The County regulates use of the meeting rooms in the
following ways: (1) library meeting rooms are available on
a first-come, first-served basis; (2) the applicant must
submit an application that identifies the applicant and
purpose of the meeting; (3) access to the meeting room is
contingent upon approval by the library staff, and the
County library reserves the right to deny an application or
revoke permission previously granted; (4) an applicant must
pay a fee for use of the meeting room when a meeting is not
open to the general public, when it charges an admission
fee, or when it involves sales or solicitations; (5)
schools may not utilize a meeting room “for instructional
purposes as a regular part of the curriculum”; and (6) the
library meeting room “shall not be used for religious
services.”
It is the last policy restriction on “Religious Use” that
is the subject of this case. The “Religious Use”
restriction has twice been amended since the present action
was filed in the district court. Initially, the policy
provided that “[l]ibrary meeting rooms shall not be used
for religious purposes.” Page 1199 In August 2004, the
County modified the policy to prohibit use of library
meeting rooms “for religious services or activities.” On
December 14, 2004, the County Board of Supervisors adopted
Resolution No. 2004/655, the County’s current policy, to
prohibit “religious services” from being conducted in
library meeting rooms.
Plaintiff Faith Center Church Evangelistic Ministries is a
non-profit religious corporation led by plaintiff Pastor
Hattie Mae Hopkins (collectively “Faith Center”). According
to Faith Center’s verified amended complaint, Pastor
Hopkins believes that she is called to share her Christian
faith with others. Pastor Hopkins believes that 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, Pastor Hopkins holds
meetings and worship services in non-church buildings under
the auspices of Faith Center. Participants at Faith
Center’s meetings generally “(a) discuss educational,
cultural, and community issues from a religious perspective;
(b) engage in religious speech and religious worship; and
(c) engage in discussing the Bible and other religious
books [as well as] teaching, praying, singing, sharing
testimonies, sharing meals, and discussing social and
political issues.”
Pastor Hopkins believes that divine providence guided her
to begin holding Faith Center meetings in Antioch,
California. In May 2004, Pastor Hopkins submitted
applications requesting to use the County’s Antioch Branch
Library meeting room for May 29, 2004 and July 31, 2004. In
each application, Pastor Hopkins described the purpose of
Faith Center’s meetings as “Prayer, Praise and Worship Open
to the Public, Purpose to Teach and Encourage Salvation
thru Jesus Christ and Build up Community.” Pastor Hopkins
received confirmation from Antioch Library staff that her
applications had been approved and that Faith Center’s dates
were reserved on the library’s calendar.
Faith Center advertised its May 29, 2004 meeting with a
flyer describing a “Women of Excellence Conference”
sponsored by Faith Center Evangelistic Ministries Outreach.
The flyer stated:
Coming to Antioch, California, on May 29th 2004, where
the power of God would be moving to bring miracles into
your life. “For this is the hour of the believer,” thus
saith the Lord, for divine impartation of spiritual gifts,
and empowerment, for the body of Christ to move forward in
total victory. Come and receive your blessing!
The flyer divided the day’s activities into a “Wordshop”
from 11:00 a.m. to 12:00 p.m., refreshments, and an
afternoon “Praise and Worship” service with a sermon by
Pastor Hopkins from 1:00 p.m. to 3:00 p.m. The topic of the
morning “wordshop” was “`The Making of an Intercessor,’ an
End-time call to Prayer for every Believer, and how to pray
fervent, effectual Prayers that God hears and answers.”
Faith Center held its meeting and service on May 29, 2004.
Toward the end of the afternoon service, Antioch Library
staff informed Faith Center representatives that they were
not permitted to use the meeting room for religious
activities. According to Faith Center, the library staff
did not express concern about excessive noise but rather
about a violation of the “Religious Use” policy, which, at
that time, prohibited the use of library meeting rooms for
“religious purposes.”[fn1] In June 2004, the County removed
Faith Center’s Page 1200 July 31, 2004 meeting from the
Antioch Library calendar and later confirmed with Faith
Center that the July meeting had been cancelled.
On July 30, 2004, Faith Center sued to enjoin the County
from excluding Faith Center’s proposed religious meetings
on the basis of the County’s “Religious Use” policy.[fn2]
Faith Center also sought a declaration that the meeting
room policy was unconstitutional on its face and as applied
to Faith Center’s proposed use of the meeting room.[fn3]
Faith Center expressed a desire to hold Saturday morning
meetings in the Antioch meeting room every other month.
Before the district court, Faith Center argued that the
County discriminated against Faith Center on the basis of
the church’s viewpoint when it enforced its old policy
prohibiting access to the meeting room for “religious
purposes” and cancelled Faith Center’s July 31, 2004
meeting. Faith Center also asserted that enforcement of any
of the County’s “Religious Use” policies, including the
current one barring “religious services,” would result in
viewpoint discrimination in violation of the First
Amendment.
The County agreed that its former meeting room policies
were overly broad and that Faith Center’s morning
“wordshop” at the May 29th meeting was the type of
religious speech activity that would be permitted under the
current policy. The County, however, argued that barring
Faith Center’s religious worship services from the meeting
room was a permissible exclusion of a category of speech
meant to preserve a limited public forum for its intended
uses. The County viewed Faith Center’s May 29th afternoon
“praise and worship” session as mere religious worship
exceeding the purpose for which the meeting room forum had
been created.[fn4]
The district court granted Faith Center’s motion for a
preliminary injunction. See Faith Center Church
Evangelistic Ministries v. Glover, No. 04-03111, 2005 WL
1220947 (N.D.Cal. May 23, 2005). The district court
concluded that Faith Center was substantially likely to
prevail on its claim that enforcement of the County’s past
or current library meeting room policies to exclude Faith
Center’s proposed religious worship activities would result
in unconstitutional viewpoint discrimination. The district
court granted relief on the basis of Faith Center’s as
applied challenge.
The district court based its order on four legal premises:
(1) religious worship Page 1201 is speech protected by
the First Amendment; (2) religious worship cannot be
distinguished from other forms of religious speech; (3) the
exclusion of religious worship from otherwise permissible
speech of a religious nature constitutes viewpoint
discrimination; (4) there was no compelling Establishment
Clause concern to justify Faith Center’s exclusion.[fn5]
As the district court made clear, it proceeded on the
basis that the afternoon “praise and worship” session
constituted pure religious worship services.[fn6] Faith
Center did not dispute this contention because it argued
that even if the afternoon session was mere religious
worship, the court could not draw a constitutionally
permissible distinction between afternoon worship and the
rest of Faith Center’s religious speech activities. Thus,
as the parties do, we understand the district court’s grant
of preliminary injunctive relief to enjoin application of
the County’s policy to bar religious worship services. This
appeal followed.
II.
We have jurisdiction under 28 U.S.C. § 1292. We will
reverse the grant of a preliminary injunction when the
district court has abused its discretion or has based its
decision on an erroneous legal standard or on clearly
erroneous findings of fact. See Satava v. Lowry, 323 F.3d
805, 810 (9th Cir. 2003). Application of erroneous legal
principles by the district court is an abuse of discretion.
See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004,
1013 (9th Cir. 2001). Underlying issues of law are reviewed
de novo, including the claim that the district court relied
on an erroneous legal premise to arrive at its decision to
grant a preliminary injunction. See id. Thus, we must
determine “whether the court employed the appropriate legal
standards governing the issuance of a preliminary
injunction and whether the district court correctly
apprehended the law with respect to the underlying issues
in the case.” Sammartano v. First Judicial Dist. Court, 303
F.3d 959, 965 (9th Cir. 2002) (internal quotation marks and
citation omitted).
III.
A preliminary injunction may issue when the moving party
demonstrates either Page 1202 “(1) a combination of
probable success on the merits and the possibility of
irreparable harm; or (2) that serious questions are raised
and the balance of hardships tips in its favor.” A & M
Records, Inc., 239 F.3d at 1013. “These formulations are
not different tests but represent two points on a sliding
scale in which the degree of irreparable harm increases as
the probability of success on the merits decreases.”
Associated Gen. Contractors of Cal. v. Coal. for Econ.
Equity, 950 F.2d 1401, 1410, (9th Cir. 1991) (internal
quotation marks and citation omitted). Accordingly, “if the
movant has a 100% probability of success on the merits,
this alone entitles it to reversal of a district court’s
denial of a preliminary injunction, without regard to the
balance of the hardships.” Sammartano, 303 F.3d at 965
(internal quotation marks omitted).
Because the district court concluded that enforcement of
the County’s library meeting room policy was substantially
likely to violate Faith Center’s right to freedom of
expression, the court also concluded that Faith Center had
demonstrated the requisite irreparable harm. See Elrod v.
Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547
(1976) (“The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes
irreparable injury.”); Sammartano, 303 F.3d at 973 (“[A]
party seeking preliminary injunctive relief in a First
Amendment context can establish irreparable injury
sufficient to merit the grant of relief by demonstrating
the existence of a colorable First Amendment claim.”
(internal quotation marks and citation omitted)). We agree
that the existence of a colorable First Amendment claim in
this case is sufficient to demonstrate irreparable injury.
We therefore confine our review to determining whether
Faith Center has demonstrated a likelihood of success on
the merits of its First Amendment “as applied”
challenge.[fn7]
IV.
A.
As a preliminary matter, our inquiry ends if Faith
Center’s religious services do not constitute “speech”
subject to First Amendment protection. We conclude that
Faith Center engaged in protected speech when its
participants met in the Antioch Library for prayer, praise,
and worship. See Widmar v. Vincent, 454 U.S. 263, 269, 102
S.Ct. 269, 70 L.Ed.2d 440 (1981) (“[R]eligious worship and
discussion . . . are forms of speech and association
protected by the First Amendment.”); Good News Club v.
Milford Cent. Sch., 533 U.S. 98, 111, 121 S.Ct. 2093, 150
L.Ed.2d 151 (2001) (finding that activities
“quintessentially religious” in nature such as religious
instruction, prayer, and discussion and recitation of the
Bible, are protected speech); Lamb’s Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94, 113
S.Ct. 2141, 124 L.Ed.2d 352 (1993) (finding that the
presentation of cultural and educational subject matter
from a religious perspective is speech protected by the
First Amendment).
The Constitution, however, does not guarantee that all
forms of protected speech may be heard on government
property. “[T]he Government, `no less than a private owner
of property, has power to preserve the property under its
control for the use to which it is lawfully dedicated.'”
Page 1203 Cornelius v. NAACP Legal Def. & Educ. Fund, 473
U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)
(quoting Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211,
47 L.Ed.2d 505 (1976)). The Supreme Court has adopted a
forum analysis to balance “when the Government’s interest
in limiting the use of its property to its intended purpose
outweighs the interest of those wishing to use the property
for other purposes.” United States v. Kokinda, 497 U.S.
720, 726, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (internal
quotation marks and citation omitted). Thus, we must at the
outset determine the nature of the forum established by the
County when it opened the Antioch Library meeting room to
various community groups.
We begin our forum analysis by “identify[ing] the nature of
the forum” and “whether the forum [at issue] is public or
non-public.” Cornelius, 473 U.S. at 797, 105 S.Ct. 3439.
Forum analysis has traditionally divided government
property into three categories: public fora, designated
public fora, and nonpublic fora. DiLoreto v. Downey Unified
Sch. Dist. Bd. of Educ., 196 F.3d 958, 964 (9th Cir. 1999).
Once the forum is identified, we determine whether
restrictions on speech are justified by the requisite
standard. Cornelius, 473 U.S. at 797, 105 S.Ct. 3439.
Traditional public fora such as public streets and parks
are locations that “by long tradition or by government fiat
have been devoted to assembly and debate.” Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103
S.Ct. 948, 74 L.Ed.2d 794 (1983). When the government
intentionally dedicates its property to expressive conduct,
it also creates a public forum. Id. Such designated public
fora cannot be created by inaction; the government must
“intentionally open[] a nontraditional forum for public
discourse.” Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. The
ability of the government to limit speech in a traditional
or designated public forum is sharply circumscribed.
Content-based regulation is justified only when “necessary
to serve a compelling state interest and [when] it is
narrowly drawn to achieve that end.” Perry, 460 U.S. at 45,
103 S.Ct. 948. Content-neutral restrictions that regulate
the time, place, and manner of speech are permissible so
long as they are “narrowly tailored to serve a significant
government interest, and[they] leave open ample alternative
channels of communication.” Id.
Any public property that is not by tradition or designation
a forum for public communication is classified as a
non-public forum. See DiLoreto, 196 F.3d at 965. Regulation
of speech in a nonpublic forum is subject to less demanding
judicial scrutiny. “The challenged regulation need only be
reasonable, as long as the regulation is not an effort to
suppress the speaker’s activity due to disagreement with
the speaker’s view.” Int’l Soc. for Krishna Consciousness
v. Lee, 505 U.S. 672, 679, 112 S.Ct. 2701, 120 L.Ed.2d 541
(1992).
We have recognized that the Supreme Court, in decisions
subsequent to Perry and Cornelius, has identified another
category — the “limited public forum” — to
describe a nonpublic forum that the government
intentionally has opened to certain groups or for the
discussion of certain topics. See DiLoreto, 196 F.3d at 965
(citing Rosenberger v. Rector & Visitors of the Univ. of
Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d
700 (1995)). Restrictions governing access to a limited
public forum are permitted so long as they are viewpoint
neutral and reasonable in light of the purpose served by
the forum.[fn8] Page 1204
B.
We conclude that the Antioch Library meeting room is a
limited public forum and that enforcement of the County’s
policy to exclude religious worship services from the
meeting room is reasonable in light of the forum’s purpose.
It is clear, and neither party contends otherwise, that the
forum created by the County is neither a traditional public
forum nor a non-public forum. Rather, the parties dispute
whether the Antioch meeting room constitutes a designated
or limited public forum.
In evaluating the type of forum at issue, we look to “the
policy and practice of the government, the nature of the
property and its compatibility with expressive activity,
and whether the forum was designed and dedicated to
expressive activity.” Children of the Rosary v. City of
Phoenix, 154 F.3d 972, 976 (9th Cir. 1998) (citing
Cornelius, 473 U.S. at 802-03, 105 S.Ct. 3439); see also
Am. Civil Liberties Union of Nev. v. City of Las Vegas, 333
F.3d 1092, 1098 (9th Cir. 2003). The purpose of our inquiry
is to discern the government’s intent in making the forum
available for public use. See Cornelius, 473 U.S. at 802,
105 S.Ct. 3439.
The County’s library meeting room policy allows
“[n]on-profit and civic organizations, for-profit
organizations, schools and governmental organizations” to
use a branch Library meeting room for “meetings, programs,
or activities of educational, cultural or community
interest.” Evidently, the County’s purpose was to invite
the community at large to participate in use of the meeting
room for expressive activity. In practice, the County has
allowed a variety of community groups to hold meetings in
the Antioch Library meeting room, including the Sierra Club
for purposes of letter writing, Narcotics Anonymous for a
recovery meeting, and the East Contra Costa Democratic Club
to “let people learn about Democratic candidates and
issues.”[fn9]
A policy with a broad purpose however is not dispositive of
an intent to create a public forum by designation. In Good
News Club, the Supreme Court adopted the Second Circuit’s
conclusion that the State of New York had created a limited
public forum when it made its public schools available for
“social, civic and recreational meetings and entertainment
events, and other uses pertaining to the welfare of the
community.” Good News Club, 533 U.S. at 102, 106, 121 S.Ct.
2093 (internal quotation marks omitted). Other courts have
interpreted similar broadly worded policies to create
limited public Page 1205 fora. See Bronx Household of
Faith v. Bd. of Ed. of City of New York, 331 F.3d 342, 346
(2d Cir. 2003) (recognizing that the same New York State
policy at issue in Good News Club created a limited public
forum); Campbell v. St. Tammany Parish Sch. Bd., No. Civ.
A. 98-2605, 2003 WL 21783317, at * 1 (E.D.La. July 30,
2003) (unpublished) (holding that school board’s policy of
granting access for “civic and recreational meetings . . .
and other uses pertaining to the welfare of the community”
created a limited public forum).[fn10]
Here, the County’s policy and practices make clear that
the County did not intend for the Antioch Library meeting
room to be open for indiscriminate use. The County’s policy
excludes schools from using the meeting room “for
instructional purposes as a regular part of the curriculum”
and organizations who wish to engage in “religious
services.” Additionally, the policy requires a potential
user to submit an application describing the intended use
and identifying the applicant. Thereafter, the application
must be reviewed and approved in advance by the County.
Requiring prior permission for access to forum demonstrates
that a public forum has not been created by designation.
See Cornelius, 473 U.S. at 803, 105 S.Ct. 3439. Finally,
the policy requires an applicant to pay a fee for certain
proposed uses. By charging a fee in certain circumstances,
the County has demonstrated its desire to limit access to
the library meeting room for certain purposes and speakers.
The record indicates that the County has consistently
applied its policy restrictions. Faith Center does not
contend that the County has ever failed to screen an
application or that the County has granted access to an
applicant on a non-policy basis. See Hopper, 241 F.3d at
1076 (“[C]onsistency in application is the hallmark of any
policy designed to preserve the non-public status of a
forum.”)
The nature of the forum also supports the conclusion that,
although the community at large has been invited to use the
room, the library meeting room was not intended to be open
for unlimited public expression. A library is
quintessentially “a place dedicated to quiet, to knowledge,
and to beauty,” Brown v. Louisiana, 383 U.S. 131, 142, 86
S.Ct. 719, 15 L.Ed.2d 637 (1966); where “the worthy
missions of facilitating learning and cultural enrichment”
are fostered, United States v. Am. Library Ass’n, 539 U.S.
194, 203, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003); and whose
“very purpose is to aid in the acquisition of knowledge
through reading, writing and quiet contemplation,” Kreimer,
958 F.2d at 1261.
We also note that the Antioch meeting room is located
within the Antioch Branch Library itself, that the meeting
room is accessible during normal operating hours when other
library patrons are present, and that sound can be heard
by nonparticipants. Thus, while the Library meeting room
is compatible with different kinds of expressive activity
such as a group discussion or lecture, we are mindful that
the forum was not intended to undermine the library’s
primary function as a venue for reading, writing, and quiet
contemplation.
The County’s policy delineating the speakers and uses
appropriate for the Library meeting room, its consistent
screening of applications, and its requirement of a fee in
limited circumstances, Page 1206 underscores our
conclusion that the Antioch forum was not dedicated for
indiscriminate use. We therefore hold that the Antioch
Library meeting room is a limited public forum whose
restrictions to access may be “based on subject matter . . .
so long as the distinctions drawn are reasonable in light
of the purpose served by the forum and are viewpoint
neutral.” Cornelius, 473 U.S. at 806, 105 S.Ct. 3439. We
proceed next to the question of whether the County’s
decision to prohibit Faith Center from conducting religious
worship services in the Library meeting room is reasonable
in light of the purpose served by the forum.
C.
“[R]easonableness analysis focuses on whether the
limitation is consistent with preserving the property for
the purpose to which it is dedicated.” DiLoreto, 196 F.3d
at 967 (internal quotation marks omitted). Although the
actual forum is a library meeting room, the nature and
function of the County’s public library as a whole is
relevant in evaluating the reasonableness of the County’s
exclusions. See id. at 968.
The purpose of the County’s library policy is to make its
library meeting rooms available as a community resource for
different kinds of expressive activity such as meetings,
discussions, lectures, and other “meetings, programs, or
activities of educational, cultural or community interest.”
The County’s policy regulates use of the meeting room to
preserve the character of the forum as a common meeting
space, an alternative to the community lecture hall, the
corporate board-room, or the local Starbucks. The library
policy, for example, prohibits schools from using the
meeting room as a regular part of the school’s curriculum.
The County’s exclusion of schools is reasonable in light of
its purpose. To allow the meeting room to be converted into
a classroom would transform the character of the forum from
a community meeting room to a public school.
By the same token, the County’s decision to exclude Faith
Center’s religious worship services from the meeting room
is reasonable in light of the library policy so that the
Antioch forum is not transformed into an occasional house
of worship. Faith Center acknowledges that it seeks to
reach out to those individuals who might not enter a
traditional church building, and to bring the evangelical
church experience to them. We see nothing wrong with the
County excluding certain subject matter or activities that
it deems inconsistent with the forum’s purpose, so long as
the County does not discriminate against a speaker’s
viewpoint. To conclude that the County’s exclusion of
religious worship services from its government buildings is
unreasonable would result in the “remarkable proposition
that any public [building] opened for civic meetings must
be opened for use as a church, synagogue, or mosque.” Good
News Club, 533 U.S. at 139, 121 S.Ct. 2093 (Souter, J.,
dissenting).
The County also has a reasonable interest in limiting the
Library meeting room to uses that could potentially
interfere with the primary function of the library. In
DiLoreto, a school district policy excluded subject matter
that was deemed too sensitive or controversial from
advertisements on a high school’s baseball fence. 196 F.3d
at 966. “The District’s concerns regarding disruption and
potential controversy” were found reasonable in light of
the circumstance of having a limited forum (the
advertisement fence) within a public secondary school. Id.
at 968. We thus upheld the exclusion of an advertisement
containing the text of the Ten Commandments Page 1207
because it was inconsistent with the limited purpose served
by the forum.
Here too, the County has a legitimate interest in
screening applications and excluding meeting room
activities that may interfere with the library’s primary
function as a sanctuary for reading, writing, and quiet
contemplation. The County reasonably could conclude that
the controversy and distraction of religious worship within
the Antioch Library meeting room may alienate patrons and
undermine the library’s purpose of making itself available
to the whole community. See id. We therefore conclude that
the County’s prohibition on religious worship services is
reasonable in light of the purpose served by the Library
meeting room.[fn11]
V.
Although the County’s policy, and its decision to bar
Faith Center from using the Library meeting room to conduct
religious worship services, is reasonable in light of the
forum’s purpose, Faith Center is likely to succeed on the
merits of its First Amendment claim if it can establish
that the County discriminated against it because of its
religious viewpoint.
In a limited public forum, the government is free to
reserve access to the forum “for certain groups or for the
discussion of certain topics.” Rosenberger, 515 U.S. at
829, 115 S.Ct. 2510. Access may not be restricted, however,
if the “rationale for the restriction” is the “specific
motivating ideology or the opinion or perspective of the
speaker.” Id. We must identify whether the County’s
exclusion of Faith Center’s religious worship services from
the Library meeting room is “content discrimination, which
may be permissible if it preserves the purpose of that
limited forum, [or] viewpoint discrimination, which is
presumed impermissible when directed against speech
otherwise within the forum’s limitations.” Id. at 829-30,
115 S.Ct. 2510.
We hold that the exclusion of Faith Center’s religious
worship services from the Antioch Library meeting room is a
permissible limitation on the subject matter that may be
discussed in the meeting room, and that it is not
suppression of a prohibited perspective from an otherwise
permissible topic. In so holding, we address two arguments
raised by Faith Center that bear directly on our analysis.
First, Faith Center contends that the prohibition on
religious worship services is impermissible viewpoint
discrimination because “prayer, praise and worship” is an
educational, cultural, and community-related activity that
has been suppressed due to Faith Center’s religious
perspective.
Second, Faith Center argues that its religious worship
cannot be distinguished from other religious speech that is
permitted in the Antioch Library, and to attempt a
judicially enforceable distinction would entangle the
government with religion in a manner forbidden by the
Establishment Clause.
A.
We first address whether the County has discriminated on
the basis of content or viewpoint. “Content discrimination
occurs when the government chooses the subjects that may be
discussed, while viewpoint discrimination occurs when the
government prohibits speech by particular speakers, thereby
suppressing a particular view about a subject.” Giebel v.
Sylvester, Page 1208 244 F.3d 1182, 1188 (9th Cir. 2001)
(internal quotation marks omitted). The distinction between
regulation on the basis of subject matter or viewpoint,
however, “is not a precise one,” Rosenberger, 515 U.S. at
831, 115 S.Ct. 2510, and as this court has recognized, “the
level at which `subject matter’ is defined can control
whether discrimination is held to be on the basis of
content or viewpoint,” Giebel, 244 F.3d at 1188 n. 10; see
also Robert C. Post, Subsidized Speech, 106 YALE L.J. 151,
166 & n. 96 (1996).
The Supreme Court’s decision in Boos v. Barry exemplifies
the difficulty of identifying whether a regulation excludes
an entire category of speech or restricts a prohibited
viewpoint. 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333
(1988) (plurality opinion). In Boos, the Court reviewed a
statute that prohibited the display of signs disparaging a
foreign government from within 500 feet of that
government’s embassy. The plaintiffs argued that the
statute discriminated on the basis of viewpoint because
speech that favored the foreign government was permitted.
From plaintiffs’ standpoint, the subject matter regulated
by the statute was `speech concerning a foreign government’
and the restriction improperly favored one side of the
debate. The Court rejected this argument by defining the
subject matter of the regulation at a different level of
generality: speech against foreign governments. Because the
statute excluded this entire category of speech without
regard to any particular foreign government or criticism, a
plurality of the Court concluded that the statute was
viewpoint-neutral. Id. at 319, 108 S.Ct. 1157.
In Lamb’s Chapel, the Court articulated a test for
distinguishing between content and viewpoint discrimination.
A religious group seeking to show a film series on child
rearing from a Christian perspective was denied access to a
school facility because of the school district’s policy
barring use of the rooms for religious purposes. The Court
unanimously held that the school district “discriminate[d]
on the basis of viewpoint [by] permit[ting] school property
to be used for the presentation of all views about family
issues and child rearing except those dealing with the
subject matter from a religious standpoint.” 508 U.S. at
393, 113 S.Ct. 2141. The test is whether the government has
excluded perspectives on a subject matter otherwise
permitted by the forum.
The Court applied that test in Rosenberger. In
Rosenberger, the Court considered whether a University of
Virginia policy of excluding religious publications from
eligibility for student funds was viewpoint discrimination
or a content-based exclusion. The University sought to
avoid a possible Establishment Clause violation by
excluding funding that supported “religious activity,”
including student publications that espoused and promoted
religious beliefs. See 515 U.S. at 825, 115 S.Ct. 2510. The
majority determined, however, that “the University [did]
not exclude religion as a subject matter but select[ed] for
disfavored treatment those student journalistic efforts
with religious editorial viewpoints.” Id. at 831, 115 S.Ct.
2510. Because other student publications were free to
discuss the topic of religion from a myriad of views other
than the prohibited perspective, the University had
discriminated on the basis of viewpoint. Id.
Most recently, in Good News Club v. Milford Central
School, the Court held that a school district engaged in
viewpoint discrimination when it refused to allow a
Christian children’s club (“Club”) to offer a religious
perspective on moral and character development in a school
forum that was open to wide community involvement. The
school district allowed its facilities to Page 1209 be
used for activities “pertaining to the welfare of the
community,” and the facilities were available to any group
that promoted the moral and character development of
children. See 533 U.S. at 108, 121 S.Ct. 2093. Comparing
the circumstances to Lamb’s Chapel, the Court found that
the school district had discriminated on the basis of
viewpoint by denying the Club the opportunity to teach
moral and character development to children from a
religious perspective. See id. at 111, 121 S.Ct. 2093
(“What matters for purposes of the Free Speech Clause is
that we can see no logical difference in kind between the
invocation of Christianity by the Club and the invocation
of teamwork, loyalty, or patriotism by other associations
to provide a foundation for their lessons.”). Once again,
the focus was on whether some other group had been
permitted to engage in the same kind of speech activity
from a perspective other than the prohibited one.
Good News Club is notable for two other reasons. First,
the Court concluded that even activities that are
“quintessentially religious” can be used to further the
purpose of moral instruction and character development. In
Good News Club, the Club taught morality and character
development by singing songs, relating stories from the
Bible, reciting verses, memorizing Scripture, and prayer.
See id. at 103, 121 S.Ct. 2093. For the Court’s purposes
however, “[t]he only apparent difference between the
activity of Lamb’s Chapel and the activities of the Good
News Club is that the Club chooses to teach moral lessons
from a Christian perspective through live storytelling and
prayer, whereas Lamb’s Chapel taught lessons through
films.” Id. at 110, 121 S.Ct. 2093.
Second, the Court drew a distinction between the Club’s
activities and “mere religious worship, divorced from any
teaching of moral values.” Id. at 112 n. 4, 121 S.Ct. 2093.
Although the school district contended that the Club’s
activities constituted religious worship, the Court
rejected that characterization and noted that the court of
appeals made no such determination. The Court drew a line
at religious worship because it did not regard worship in
this case as merely a “viewpoint from which ideas are
conveyed.” Id. To the contrary, pure religious worship held
a purpose unto itself, and it exceeded the boundaries of a
forum limited to a discussion of the moral and character
development of children. See id. at 138 n. 3, 121 S.Ct.
2093.[fn12]
Turning to Faith Center’s argument, we disagree that
prohibiting religious worship services in the Antioch
Library meeting room constitutes viewpoint discrimination.
The test, as we have articulated, is whether the government
has excluded a perspective on a subject matter otherwise
permitted in the forum. To determine whether “religious
worship” is a perspective on an allowable topic, we are
guided by the Court’s approach in Good News Club and draw
reference from events and activities that have been hosted
at the Antioch meeting room forum. See id. at 108, 121
S.Ct. 2093.
As noted above, the County acknowledged that Faith
Center’s morning activities on May 29, 2004 were
permissible under the County’s current policy. According to
Faith Center’s flyer describing the day’s events, the
morning “Wordshop” Page 1210 consisted of “`The Making of
an Intercessor,’ an Endtime call to Prayer for every
Believer, and how to pray fervent, effectual Prayers that
God hears and answers.” In other words, the morning
workshop was devoted to the topic of communication and how
to communicate effectively with one’s God. Although Faith
Center’s activities may have included “quintessentially
religious” speech such as a call to prayer, Good News Club
makes clear that such speech in furtherance of
communicating an idea from a religious point of view cannot
be grounds for exclusion.
It is clear that “communication” is a permissible topic of
discussion in the Antioch Library meeting room. If the
Antioch Speech and Debate club applied to use the meeting
room to discuss the art of oratory and effective
communication of secular subjects, the County would not
likely reject such a proposal. It would therefore be
viewpoint discrimination for the County to exclude Faith
Center’s perspective on the subject of communication
because of the religious content of Faith Center’s speech.
Other activities that occur at Faith Center’s meetings are
also permissible in the Antioch meeting room. Faith Center
explains that meeting participants sometimes “engage in
discussing the Bible and other religious books [as well as]
teaching, praying, singing, sharing testimonies, sharing
meals, and discussing social and political issues.” These
activities convey a religious perspective on subjects that
are or have been permitted in the Antioch Library meeting
room, such as a discussion of the Bible, discussions of
social and political issues, and sharing life
experiences.[fn13]
The County, for example, permits meetings by the East
Contra Costa Democratic Club to “let people learn about
Democratic candidates and issues” — in essence to
discuss social and political issues from the standpoint of
the Democratic Party. A Narcotics Anonymous recovery
meeting includes sharing personal life experiences similar
to sharing testimonials of one’s personal experiences with
God and faith. A letter-writing campaign by the Sierra Club
involves the discussion and communication of matters of
social and political interest to its members. Discussions
of the Bible and other religious and literary texts are
also clearly permissible in the library. Thus, to exclude
Faith Center from discussing topics that are appropriate to
the forum because of a prohibited religious perspective
would constitute viewpoint discrimination in violation of
the First Amendment.
Faith Center’s afternoon activities on May 29th, however,
did not consist of religious viewpoint activities. Faith
Center occupied the Antioch forum expressly for “praise and
worship” and in doing so Faith Center exceeded the
boundaries of the library’s limited forum. The district
court understood, and Faith Center did not dispute, the
contention that the afternoon activities constituted pure
religious worship services. Rather, Faith Center argued
before the district court that its religious worship could
not be distinguished from the rest of its religious speech,
and for the court to make such a distinction was
constitutionally impermissible.
Pure religious worship, however, is not a secular activity
that conveys a religious viewpoint on otherwise permissible
subject matter. For every other topic of discussion Page
1211 that Faith Center engages in — the Bible,
communication, social and political issues, life
experiences — religious and non-religious
perspectives exist. The same can be said for moral and
character development in Good News Club, child rearing in
Lamb’s Chapel, and the topic of religion itself in
Rosenberger.
Religious worship, on the other hand, is not a viewpoint
but a category of discussion within which many different
religious perspectives abound. If the County had, for
example, excluded from its forum religious worship services
by Mennonites, then we would conclude that the County had
engaged in unlawful viewpoint discrimination against the
Mennonite religion. But a blanket exclusion of religious
worship services from the forum is one based on the content
of speech.
Faith Center contends that because a religious worship
service is an “educational, cultural and community related”
activity, excluding religious worship services from the
forum when other community-related activities are permitted
amounts to viewpoint discrimination. Although religious
worship is an important institution in any community, we
disagree that anything remotely community-related must
therefore be granted access to the Antioch Library meeting
room. That argument was rejected in Good News Club when the
Court distinguished the Club’s activities from “mere
religious worship” and implicitly acknowledged that
religious worship exceeded the boundaries of the limited
public forum. See Good News Club, 533 U.S. at 112 n. 4,
121 S.Ct. 2093.[fn14]
Faith Center’s reliance on the Second Circuit’s decision
in Bronx Household of Faith is misplaced. In Bronx
Household of Faith, an evangelical Christian church sought
access to a public school building for Sunday meetings that
consisted of singing Christian hymns, prayer, Biblical
preaching and teaching, communion, and social fellowship.
331 F.3d at 347. The court concluded that, like Good News
Club, the proposed meetings did not “constitute only
religious worship, separate and apart from any teaching of
moral values.” Id. at 354. The court was guided by Justice
Souter’s description of the Club’s activities in Good News
Club.[fn15] Justice Souter characterized the Club’s
meetings as “an evangelical service of worship,” combining
teaching with “elements of worship.” 533 U.S. at 138 n. 3,
121 S.Ct. 2093. The court found that the proposed meetings
in Bronx Household of Faith were materially
indistinguishable from Good News Club’s activities and
therefore Good News Club controlled the outcome of its
case.
Bronx Household of Faith is inapposite because here we
simply do not have “elements of worship” that further
secular goals. Faith Center’s afternoon activities on May
29, 2004, as described by Faith Center itself, consisted
entirely of praise and religious worship. The Second
Circuit made clear that its “ruling [was] confined to the
district court’s finding that the [church’s] activities . .
. [were] not simply Page 1212 religious worship, divorced
from any teaching of moral values or other activities
permitted in the forum.” 331 F.3d at 354. Bronx Household
of Faith is also distinguishable because of the nature of
the forum. There, the church sought to rent empty school
rooms for its Sunday meetings away from other public
activity. The Antioch Library meeting room, on the other
hand, is in the Antioch Branch Library and is available
only during the Library’s operating hours when other
library patrons are present. The propriety of religious
worship services varies by the different circumstances of
each forum.[fn16]
B.
We turn to Faith Center’s second argument, that the
prohibition on religious services in the Antioch forum is
viewpoint discrimination because religious worship cannot
be distinguished from other permissible forms of religious
speech. According to Faith Center, to enforce such a
distinction, would entangle the government with religion in
a manner forbidden by the Establishment Clause.
Faith Center relies on Widmar v. Vincent for support. In
Widmar, a religious student organization sought access to
state university facilities for religious worship and
discussion. The University made its facilities available
for activities by registered student groups but prohibited
the use of University buildings “for purposes of religious
worship or religious teaching.” 454 U.S. at 265, 102 S.Ct.
269. The Court held that the University had created a
public forum and therefore it could only “justify
discriminatory exclusion from a public forum based on the
religious content of the group’s intended speech” by
showing that its regulation was necessary to serve a
compelling state interest and narrowly drawn to achieve
that end. Id. at 269-70, 102 S.Ct. 269. The University
regulation did not survive under the heightened judicial
scrutiny.
In dicta that was not central to the Court’s holding,
Justice Powell discussed the difficulty he had with the
dissent’s contention that a distinction should be made
between religious worship and other kinds of religious
speech:
First, the dissent fails to establish that the
distinction has intelligible content. There is no
indication when “singing hymns, reading scripture, and
teaching biblical principles,” cease to be “singing,
teaching, and reading” — all apparently forms of
“speech,” despite their religious subject matter —
and become unprotected worship.
Second, even if the distinction drew an arguably
principled line, it is highly doubtful that it would lie
within the judicial competence to administer. Merely to
draw the distinction would require the university —
and ultimately the courts — to inquire into the
significance of words and practices to different religious
faiths, and in varying circumstances by the same faith.
Such inquiries would tend inevitably to entangle the State
with religion in a manner forbidden by our cases. Page
1213
Id. at 269 n. 6, 102 S.Ct. 269 (internal citations omitted).
Faith Center echoes the same arguments. Faith Center asks
how the County, or courts for that matter, can draw a line
between permissible components of religious speech —
singing, sharing testimonials, even prayer in the context
of discussing how to communicate with God — and
impermissible religious worship. Further, Faith Center
argues that the government and courts are not competent to
identify when certain expressive activity is religious
worship. To enforce such a distinction would foster an
excessive government entanglement with religion. See Lemon
v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29
L.Ed.2d 745 (1971).
As Justice Scalia noted in Good News Club, however, “[w]e
have drawn a different distinction — between
religious speech generally and speech about religion
— but only with regard to restrictions the State
must place on its own speech, where pervasive state
monitoring is unproblematic.” 533 U.S. at 126 n. 3, 121
S.Ct. 2093. School officials routinely draw such
distinctions in public schools where the subject of religion
may be taught but religious speech is barred from the
government speaker. See Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000);
Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517
(1994). The distinction to limit certain kinds of religious
speech is also made for government employees in the
workplace. See Berry v. Dep’t of Soc. Serv., 447 F.3d 642,
655 (9th Cir. 2006) (“Permitting appellants to evangelize
while providing services to clients would jeopardize the
state’s ability to provide services in a religion-neutral
matter.” (internal citation omitted)).
We also have recognized that school officials may draw a
distinction between different kinds of private religious
speech in order to preserve the intended purpose of a
limited public forum. In Hills, the court held that a
school district’s policy to distribute summer camp
brochures to students could not exclude a brochure that
advertised for a religious summer camp. See 329 F.3d at
1051. The court noted, however, that the school district
“is not obligated to distribute material that, in the guise
of announcing an event, contains direct exhortations to
religious observance; this exceeds the purpose of the forum
the District created.” Id. at 1053. We have elsewhere
endorsed the principle that the government can distinguish
and exclude proselytizing religious speech to preserve the
purpose for a limited forum. See, e.g., Prince v. Jacoby,
303 F.3d 1074, 1086-87 (9th Cir. 2002) (finding that while
student religious group must be given equal access to
school’s public address system to announce its activities,
the group may be barred from doing so to “pray and
proselytize”); Lassonde v. Pleasanton Unified Sch. Dist.,
320 F.3d 979, 980 (9th Cir. 2003) (permitting discussion of
religious beliefs in a high school graduation speech but
prohibiting “proselytizing”); Cole v. Oroville Union High
Sch. Dist., 228 F.3d 1092, 1104 (9th Cir. 2000) (upholding
school district’s refusal to allow valedictorian to give a
“sectarian, proselytizing speech” at graduation
ceremonies).[fn17]
This case differs from the aforementioned cases in that
the County may not Page 1214 exclude proselytizing speech
from the Antioch forum if that speech helps to convey a
viewpoint about an otherwise appropriate topic. For
example, Faith Center’s morning “Wordshop” includes a call
to prayer — speech that may be properly characterized
as proselytizing. Nonetheless, because this proselytizing
activity also furthers the discussion about communication
and communicating with a higher authority, it cannot be
grounds for exclusion.
The distinction to be drawn here is thus much more
challenging — one between religious worship and
virtually all other forms of religious speech — and
one that the government and the courts are not competent to
make. That distinction, however, was already made by Faith
Center itself when it separated its afternoon religious
worship service from its morning activities. Faith Center
admits that it occupied the Antioch forum in the afternoon
of May 29, 2004 expressly for “praise and worship.” The
County may not be able to identify whether Faith Center has
engaged in pure religious worship, but Faith Center can and
did.[fn18]
VI
We therefore conclude that prohibiting Faith Center’s
religious worship services from the Antioch meeting room is
a permissible exclusion of a category of speech that is
meant to preserve the purpose behind the limited public
forum. Religious worship services can be distinguished from
other forms of religious speech by the adherents
themselves. Because the district court erred in enjoining
the County from applying its library meeting room policy to
exclude Faith Center’s religious worship services, we
reverse the injunction in part.
The County, however, acknowledged that its prohibition on
religious worship services could not be applied to bar
Faith Center from engaging in secular activities that
express a religious viewpoint. Indeed, the County informed
the district court that Faith Center’s morning “wordshop”
on May 29, 2004 was a permissible activity even though its
purpose was to teach people how to pray or communicate with
a divine presence. To that end, the County invited the
district court to craft an injunction that ensured Faith
Center’s right to conduct activities in the meeting room
that express a religious viewpoint, and allowed the County
to exclude religious worship services. We note that the
County offered several proposals for crafting a preliminary
injunction that would achieve these balancing objectives
and avoid the pitfalls of excessive government
entanglement.[fn19] The district court, however, did not
consider the County’s suggestion regarding the scope of the
injunction. We therefore vacate and remand so that the
district court can craft an appropriate injunction after
soliciting the views of the parties.
REVERSED in part, VACATED in part, and REMANDED for
further proceedings.[fn20]