Earlier I posted about a federal judge's ruling that the Contra Costa (CA) Library may not enforce its meeting room use policy banning worship, because – Judge Jeffrey White reasoned – efforts to distinguish between speech from a religious viewpoint and an act of religious worship too strongly entangle the County in matters of religion.The dilemma Judge White poses in his conclusion is, I think, essential to understanding the difficulties of local government in navigating the fine line between allowing equal access to religious groups on one hand and guarding against the appearance of religious endorsement – turning publicly owned meeting rooms into houses of worship – on the other.
In the Ninth Circuit's earlier ruling in this case, they propose the only way out Good News seems to offer: marking the difference between "pure religious worship", which is "not a viewpoint but a category of discussion" (which could be excluded) and speech on an appropriate topic from a religious viewpoint (which could not be). They conceded that the distinction was a difficult one, and Judge White builds on that concession by effectively washing out its possibility. The County may not make that distinction because to do so would violate the Establishment Clause for excessive entanglement, and they may not allow users to police themselves because, he says, that amounts to "the fox guarding the hen house".
Read excerpts below (full decision here) to follow White's reasoning. Am I missing something? He seems to me to be saying that public meeting space not only must afford religious organizations equal access, but – by default – must allow religious activity as well, within the bounds of other neutral use restrictions. Maybe there's nothing wrong with that, but it would seem to take the viewpoint discrimination argument – which has already chipped away at the Establishment Clause – to a new level. "Religious use restrictions" are theoretically constitutional, he says, but good luck ever implementing an actual policy that restricts religious use.
The County asserts that…the Religious Use restriction allows it to permit religious speech in the Meeting Room and, at the same time, maintain neutrality toward religion.
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In this case…the County has not defined what it means by “religious services.” The County contends that the Library relies only on the applications to determine whether an event would fall within the scope of the Religious Use restriction. However, the record demonstrates that if there are questions about whether activities are religious services, rather than other religious activities permitted in the Meeting Room, someone from the County reviews the application to make that determination.Indeed the cited deposition testimony demonstrates the likelihood that the County would be called upon to inquire into religious doctrine in order to determine whether a particular activity qualified as a religious service.
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Accordingly, the Court concludes that the Religious Use restriction fails the third prong of the Lemon test, and the Court grants, in part, Faith Center’s motion on this basis.
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The Ninth Circuit remanded so that this Court could craft an injunction that would allow the County to exclude religious services “and avoid the pitfalls of excessive government entanglement,” after it solicited the views of the parties. Having considered the merits of this case, the Court is faced with a policy that, on its face, results in excessive entanglement. The County suggests that a resolution to this problem is to permit applicants to certify that they will not conduct religious services within the forum. If the County’s primary concern is to avoid allowing its Meeting Room to become an “occasional house of worship,” allowing the fox to guard the hen house is not a satisfactory resolution.There may be other permissible means to achieve this goal, but no other options have been presented to the Court. Therefore, the Court concludes that it has no choice but to enjoin the County from enforcing the Religious Use restriction as drafted.
