Forum fallacy

A panel of The 9th U.S. Circuit Court of Appeals late last month barred a small California church from holding religious meetings in a room specifically designated for public use.

From the same court that wanted to eliminate "under God" from the Pledge of Allegiance, a 2-1 decision found that Contra Costa County did not intrude on the free exercise of religion when it prohibited Faith Center Church from holding religious meetings in a public meeting room at Antioch Public Library.

Casting the deciding vote for the county, District Court Judge Lawrence Karlton complained that the "inability of the High Court to adhere to the distinction [between religious speech and secular speech]" has resulted in a "sorry state of the law." Karlton, a District Court judge sitting on the 9th Circuit by temporary assignment, used his moment in the spotlight to lament that "one can only pray for the [Supreme] Court's enlightenment." Ironically, it is this type of public prayer that Karlton seeks to prohibit.

The 9th Circuit is often called the 9th Circus for its tendency to ignore Congress and the Supreme Court. In this case, Congress gave religious groups the right to use public facilities in the Equal Access Act, and the Supreme Court has affirmed and clarified these rights in a strong line of cases (Widmar, Lamb's Chapel, Rosenberger, Good News).

In Widmar the Supreme Court ruled that it is unconstitutional to discriminate "against student groups and speakers based on their desire to use a [public university classroom] to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment."

But Supreme Court decisions have also created a continuum of public forums ranging from closed forums to limited public forums to designated public forums to traditionally open public forums. The 9th Circuit's odd logic hinged on the nature of the forum at issue and the nature of the speech being restricted.

Essentially, according to the Supreme Court, the rights of the government to restrict religious speech vary according to the location of that speech. In a closed public forum, such as a jail or a military base, the Supreme Court has said the government can pretty much do whatever it wants. In a traditionally open public forum, such as a sidewalk, the government can restrict speech only for a very important reason, and that reason can never be intended to limit religious speech. In between these two are the hard spots, limited or designated public forums.

Although there are slight nuances between the permissible restrictions in limited and designated public forums, one thing remains the same: Discrimination based on viewpoint is impermissible. The Supreme Court has consistently held that discrimination based on religion is viewpoint discrimination. As such, religious organizations have been repeatedly granted equal access to both limited and designated public forums.

The meeting room at the ironically named Antioch Public Library (Antioch being the city where followers of Jesus Christ were first called Christians) was undoubtedly "public." The library's mission statements and its actions made that clear: Officials let the Sierra Club, Narcotics Anonymous, and even the Democratic Party meet in this room, but, after allowing one church meeting, they told the church not to come back. In no uncertain terms the county told the church that the public forum was open to everyone but religious folk.

The 9th Circuit rationalized the ban by saying, in effect, that the public meeting room was an extra-limited public forum magically transformed into a state-funded church when religious groups met there. There is no precedent for such a trick, and it is highly likely that the 9th's decision will be overturned.

The general proposition to remember is this: The phrase "separation of church and state" is found nowhere in the Constitution. This phrase is a popular oversimplification often used by those who seek to decrease the practice of religion in any public setting. Such a goal is neither constitutional nor endorsed by any of the three branches of our federal government.

-Stewart Rutledge is a University of Mississippi law student