Equal Access Case: A "Perfect Storm" for Granting Certiorari?

Every five years or so the Supreme Court has to grant certiorari in a case in order to force a recalcitrant government entity and lower court to allow private speakers to engage in religious expression on public property on the same terms as speakers with nonreligious viewpoints.  This petition, Faith Center v. Glover, filed Friday by the Alliance Defense Fund, has many features that make it very suitable for the Court's next intervention.  It involves equal access for religious worship services, a right many of us thought was settled by Good News Club v. Milford School, 533 U.S. 98 (2001).  In the current case, a county library opened its meeting rooms to numerous community groups for "educational, cultural, and community-related programs and activities," but denied access for "religious services" -- in the case a "prayer, praise and worship" meeting by an evangelistic group -- while maintaining that it would allow access for "religious speech" such as a workshop on how to pray.  A Ninth Circuit panel held, 2-1, that the exclusion of the worship service from the library's forum of meeting rooms was permissible because the service fell outside the forum’s subject matter, rather than presenting a viewpoint on issues within the subject matter.  462 F.3d 1194.  The en banc CA9 denied rehearing, with seven judges dissenting.  480 F.3d 891.

It takes a while to list the host of reasons why the CA9 decision is wrong and the case cert-worthy.  The "educational, cultural, or community-related" subject-matter of the library's forum is so broad that to exclude religious services from it is both implausible on its face and hostile to religion –- as if a worship service is not among the many activities that could contribute to a community’s life and culture.  (The library had previously allowed the county Democrats, the Sierra Club, and numerous other groups to meet.)  The panel opinion says that officials can deny access, or pull the plug, if a religious meeting constitutes "worship" rather than simply “speech” –- perhaps, that is, if the speaker invites the audience to participate a little too much, or they get too inspired and enthusiastic?  Because of the hopeless and improper line-drawing this requires, the Supreme Court long ago in Widmar v. Vincent (1981) explicitly rejected the religious speech/worship distinction –- a rejection that the panel majority dismisses as “dicta” (!).  Church services are at the core of religious expression, not the periphery; and when the service occurs in a public building only because of a general community-access policy benefiting many groups, this doesn't entangle the state with worship in any substantial sense (rather, the more entangling course is to try to distinguish worship or services from religious speech).

As to cert-worthiness, the CA9 decision conflicts not only with SCT cases but with with several other court of appeals decisions, most directly Bronx Household of Faith v. Bd. of Ed. of City of New York, 331 F.3d 342 (2d Cir. 2003), which held that a church service could not be excluded from school rooms opened for general community purposes.  And it's a recurring question, as churches around the country use or seek to use schools and other public buildings for services because of restrictive zoning laws and high real-estate costs in residential areas.  (These are almost all evangelical churches, but I can imagine some situations in which Catholic services could be affected by this issue as well.)

Finally, there's almost a "perfect storm" of circumstances why the Court realistically would be inclined to take the case (this is what interested me most in blogging about it).  It's from the Ninth Circuit, for starters; the Justice Department has supported Faith Center's position in the lower courts; there was a panel dissent and a seven-judge en banc dissent; and one of the two judges in the panel majority clearly doesn’t believe in the equal rights of religious speakers in the first place (writing in a concurrence that allowing a religious group to use generally available school rooms impermissibly “subsidize[s]” religion and thus that every one of the Supreme Court’s “equal access” rulings for the last 25 years is wrong).

The fly in the ointment may be that the issue can be seen as interlocutory: it involves appeal from a partial reversal of a preliminary injunction, and the appellate panel expressed some hope that on remand the trial court could fashion an injunction that would exclude religious services without entangling the library impermissibly in defining concepts like worship.  On the other hand: as I understand the rules, the interlocutory nature of a petition is not a bar to granting cert but merely a factor to consider; the issue seems a straight legal question not likely to be affected by any fuller record; and the idea that the library could avoid future entanglement seems more of a hope than a likelihood.

Tom