When the Contra Costa County (Calif.) Public Library opened up its meeting room for "educational, cultural and community related meetings, programs and activities," it made one noticeable exception: the room could not be used for "religious services."
Nevertheless, in May 2004, Pastor Hattie Hopkins of Faith Center Church Evangelical Ministries, applied for and received permission to use the meeting room for "prayer, praise and worship open to the public."
During its first use of the facilities, which included a Bible study and teaching time, and a separate worship service that included a sermon, library staff appeared and informed the pastor that she was violating the county's policy. The county then revoked its permission.
The church sued, claiming the county policy violated the First Amendment freedom of religious expression.
"Library officials should not be allowed to discriminate against Christian community groups by treating them differently than they treat other community groups," said Benjamin Bull, chief counsel for Alliance Defense Fund (ADF), which is representing Hopkins. "Once a library opens up a community room to the public, it is then unconstitutional for librarians to discriminate against patrons."
The county conceded that its policy was overbroad and OK'd the church's Bible study class and other activities, while continuing to prohibit worship services.
The trial judge who heard the church's suit decided that the county's policy, even as modified, violated the First Amendment by singling out only religious worship for prohibition—a clear case of what courts call "viewpoint discrimination." The U.S. Supreme Court has held since 1981 that once the government opens a "public forum," such as a library meeting room, it cannot discriminate against the types of viewpoints it allows to be expressed there.
The trial judge also noted that there was no Establishment Clause (often called the "separation of church and state") issue involved that might justify the government's exclusion of religion from a public meeting room.
The church was vindicated. Temporarily.
The county appealed the judge's order to the notoriously liberal 9th Circuit Court of Appeals—the court that has ruled against the Boy Scouts, a Christian student wearing a T-shirt proclaiming the sinfulness of homosexuality, and the Pledge of Allegiance.
A three-judge panel of the 9th stayed true to form, deciding against the church. Although conceding that worship was a form of protected speech, Judge Richard A. Paez, a Clinton nominee, then interpreted prior Supreme Court precedents to conclude that "mere worship" was not as protected as other religious speech, and that the public meeting room was not a full-blown "public forum," so restrictions on religious worship could be imposed.
Another member of the panel, Judge Lawrence Karlton, a Carter nominee, openly criticized the Supreme Court, calling their case law on this subject "misguided" and suggesting that the nine justices ask people on the street for help.
In defeat, the church asked for a rehearing by a larger panel of 9th Circuit judges. The request was denied, but seven judges so strongly disagreed with the original ruling that they signed on to an almost 70-page dissenting opinion—action that invites the Supreme Court to review the case.
If accepted, the case could be argued during the high court's next term, which begins in October.
The 9th Circuit isn't doing so well at the Supreme Court. So far this term, it is 0–9—nine 9th decisions appealed, nine overturned.
Bruce Hausknecht, J.D., is judicial analyst for Focus on the Family Action.
