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Government Must Exclude Religious Speech from Government Property, Writes Federal Judge

-- it says so right there in the First Amendment. Well, somewhere in there. Doesn't it?

Here's the key excerpt from near the start of Judge Karlton's concurrence in Faith Center Church v. Glover, a case in which the majority concludes (based on a more plausible argument, though one I think is still ultimately mistaken) that a library may exclude "religious worship" from a policy that opens library rooms broadly to "meetings, programs, or activities of educational, cultural, or community interest":

This should be a simple case it asks whether the county can be forced to subsidize a religious organization's prayer meetings by requiring it to provide the religious organization with a free place to worship. A quick reading of the First Amendment to the Constitution of the United States should answer the question. Judge Paez's opinion tracks the cases and reaches its laborious result because the law has so elaborated that the reaching of the conclusion requires the effort the opinion demonstrates. As I now explain, that elaboration is premised on a failure to accept the plain meaning of the First Amendment.

Both Good News Club v. Milford Cen. Sch., 533 U.S. 98 (2001) and Lambs Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993), turn on the High Court's purported inability to distinguish between a sermon and a speech. That distinction, however, is compelled by the First Amendment, which establishes different standards relative to government action concerning speech and government action concerning religion. The purported inability of the High Court to adhere to the distinction embodied in the First Amendment leads it to conclude that the issues tendered by cases, such as the one at bar, implicate viewpoint discrimination under the free speech provisions of the First Amendment. They simply do not. As the First Amendment notes, religious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech.

This is quite a remarkable and, in my view, entirely unsound argument. Consider the text of the relevant part of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ....

A "quick reading" of the "plain meaning" of the text reveals, I think, two relevant things. First, the Amendment bars "establishment of religion," a term that is hardly self-defining. At the very least, it's far from obvious that including religious speakers evenhandedly among many nonreligious beneficiaries of a government program -- including religious speech and even worship within the category of "meetings, programs, or activities of educational, cultural, or community interest" -- constitutes an "establishment of religion." There's just nothing "plain" about the meaning; some (though a minority on the Court) have read the phrase this way, but it's hardly something that a "quick reading" reveals.

But a quick reading does reveal that the First Amendment protects "freedom of speech," with no limitation to "secular speech." That the pre-semicolon part of the Amendment protects "the free exercise" "of religion" hardly "plain[ly]" keeps the post-semicolon part from protecting "speech" and "press" both secular and religious. It's certainly quite sensible to read the first clause as the Court has read it -- protecting the exercise of religion generally (whether against discriminatory burdens or against all burdens), including religious conduct as well as religious speech, and limiting the stablishment of religion (whatever that means) -- and at the same time to read the second clause as the Court has read it, which is protecting speech generally, including nonreligious speech as well as religious speech.

One may surely argue for the "wall of separation between church and state" interpretation of the Establishment Clause (which Judge Karlton later endorses), or the particular subinterpretation under which this "wall" mandates discriminatory exclusion of religious speech from generally available programs. One may even argue, though few Justices have, that religious speech cases should be analyzed "without regard to the jurisprudence of free speech." But most certainly this is not an argument that can be gotten simply through a "quick reading" that grasps the provision's "plain meaning."

Related Posts (on one page):

  1. No Hostility to Religion Here! We Just Need to Discriminate Against Religious Speech To Insulate Society from the Excesses of the Zealous:
  2. Government Must Exclude Religious Speech from Government Property, Writes Federal Judge
unhyphenatedconservative (mail):
How is "establishing religion" not self-defined? Established churches at the time had characteristics such as direct taxpayer funding of clergy salary, discrimination of civil rights of other religions/sects, the Crown as head of the Church, banning other churches, etc. The Framers knew what an established religion was when they used the term. Any argument that the phrase is amorphous is just a fig leaf to make the clause cover what it never was intended to cover.
9.20.2006 5:25pm
Richard Aubrey (mail):
If we take the judge at his implied word--that he's honestly trying to make a distinction with the best interests of society in mind--this decision seems to combine lame with confused.

If, on the other hand, we think of it as the best rationalization he could manage to disadvantage a religious group precisely because it is religious, the decision becomes clearer.
9.20.2006 5:29pm
SamChevre:
I'm with unhyphenated--"establishing" a church was an entirely clear term in 1789. In Virginia, for example, the Anglican Church was the established church. If you were not Anglican, you weren't eligible for some public offices; you had to pay for your own meetinghouses and your own pastor; and in some cases, you could be charged a certain amount in fines/fees. If you were part of the established church, the government paid for your pastor and your church from general tax revenue.
9.20.2006 5:46pm
PatHMV (mail) (www):
I agree that there's a far, far distance between allowing religious groups equal access to public facilities and establishing a religion. In fact, I would argue that Judge Carlton's opinion amounts to a content-based restriction on speech; atheists can speak of why they do not believe in God, believers cannot speak of why they do, supporters of evolution can speak in favor of evolutionary theory, supporters of I.D. (misguided though I think them) may not speak to counter those arguments.

From the standpoint of judicial politics, isn't it a bit inappropriate for Judge Karlton to so directly criticize "the High Court"? I mean, referring to the "High Court's purported inability to distinguish between a sermon and a speech" is as antagonistic as it is stupid. He is pretty directly calling the majority on the Court dishonest. He comes perilously close to calling a majority of the Supreme Court liars:

It may be that the majority of the Supreme Court really has doubt about the ability to distinguish between religious practice and secular speech. If so... [emphasis added]


There's not many polite ways to take that.

As a philosophical matter, the Judge is corret that there are, in some areas, some fundamental differences between religious speech and other speech based on the historical experiences of humanity. But he does his argument no favors with the hostile, belligerent, and disrespectful tone of his opinion.
9.20.2006 5:57pm
Marcus1 (mail) (www):
Well, if we're really going to quibble, I think that whether "the county can be forced to subsidize a religious organization's prayer meetings by requiring it to provide the religious organization with a free place to worship" is the question which he says is answered by a quick read. Of course, that's him framing the issue in his way, but that's where he's coming from with his comment. It's not to say that the whole case is settled by a quick read, I don't think.

As to the speech clause, I'd contend there isn't anything clear that "freedom of speech" means the freedom to speak about anything in any forum, even where it conflicts with other Constitutional principles.

Seems pretty clearly to me to be another of these cases where you have to balance free exercise principles with freedom from establishment (free speech and free exercise here are, I think, the same thing). At some point, allowing people to run their church in your public library starts to raise establishment problems. Similarly, at some point, banning people from the library just because they said something religious violates free exercise principles. Cases like these fall somewhere in between.
9.20.2006 6:03pm
J.U. (mail):
Sam and Unhyphen, the Amendment does not say that Congress is prohibited from establishing a Church. That would be unambiguous. Rather, it says that Congress shall make no law respecting the establishment of religion. The meaning of that phrase is far less clear, and was also less clear at the time of the founding, which is why its meaning was contested even back then.
9.20.2006 6:04pm
eddie (mail):
Perhaps the judge was trying to say that there is a distinction between simply having a meeting and worshipping.

The government should not be in the business of supporting (establishing) a religion qua religion. If a religious group has a meeting to discuss things that is one thing, but should public property be made available for the actual practice of religion? When does the performance and observance of ritual cease to be speach?
9.20.2006 6:06pm
John (mail):
To quote Pope (not the one in Rome), "what a tangled web we weave when first we practice to deceive." Here, so many years of the Supreme Court expanding on the obvious meaning of constitutional language has come full circle so that a strained interpretation of the establishment clause trumps the common (today) strained interpretation of the free speech clause. And surely the right to peaceably assemble should be making an appearance here, n'est pas?

Well, it serves all us lawyers right. No actual human being who might stumble across the Bill of Rights and read it could have any idea how ludicrously it has been interpreted by decades, if not centuries, of lawyers and judges.
9.20.2006 6:14pm
plunge (mail):
You know, the "not self-defined" bit really raises an issue here for me in which I think you are being most sloppy. Yes, the Amendment itself is open to any number of interpretations. But over the long history of jurisprudence, including things like the implications of extending the amendments to all government powers, a particular interpretation of the passage HAS been established. To constantly refer back to the 1st Amendment as if no such defining context existed in order to make court rulings sound as outrageous and out of left field as possible does not, I think, well serve the general tenor of the debate.
9.20.2006 6:33pm
David M. Nieporent (www):
[Libertarian]If they'd just sell off all the public libraries, we wouldn't have problems like this.[/Libertarian]

PatHMV -- I was astonished also at the choice of language by Judge Karlton. That would have been inappropriate applied to anyone -- but to the Supreme Court?

As for the overall decision: regardless of what an originalist would say that the First Amendment actually means, the Ninth Circuit is bound by Supreme Court precedent, and said precedent seems squarely on point here. The majority's attempt to distinguish this case from all the other cases that hold the opposite seemed quite sophistic to me. The dissent was far more persuasive.
9.20.2006 6:45pm
Eugene Volokh (www):
Plunge: It's Judge Karlton who writes about the Amendment as if we could just focus on its "plain meaning" based on a "quick reading." He's naturally hesitant to look to "the long history of jurisprudence" as a source of the meaning, because he's criticizing the Court's current reading of the Amendment (and because past readings of the Amendment were themselves far from clear, shifted over time, and never squarely supported the result he wants to reach).
9.20.2006 7:00pm
RBG (mail):
How bizarre--how does Judge Karlton get from the "plain meaning" of the First Amendment that the County Council is prevented from engaging in establishments of religion? Last I checked, the Contra Costa County Council was not Congress.
9.20.2006 7:02pm
Kazinski:
Wouldn't the 'or prohibiting the free exercise thereof' clause give religious speech extra protection, rather than a license to restrict it? The plain meaning eludes me. When we've gotten to the point where speech calling for the violent overthrow of the Government is clearly protected, and speech calling for religious piety is clearly not, then the Constitution has been so blurred that it is not longer recognizable.
9.20.2006 8:21pm
history guy (mail):
President Jefferson attended religious services in the U.S. Capitol. Hence it is not reasonable to say that he understood the "wall of separation" to ban such practices. If might be that the "wall of separation" ought to ban such things, but Jefferson did not think so.
9.20.2006 8:55pm
Chris Bell (mail):
I think Marcus is correct (and maybe Eugene can elaborate), but my understanding of the currect (if not the current) Establishment Clause was that government shouldn't be doing things like paying clergy's salaries, keeping up church grounds, etc. On the other hand, denying a group access to a public space merely because they want to convey a religious message seems to discriminate against religion in a way never anticipated by the First Amendment.

So we let them have a meeting and make a speech, but what do we do when they want to rent out the library once a week on Sunday mornings to have the "next edition of their meeting"? At what point is governemt subsidizing religion?
9.20.2006 8:56pm
Chris Bell (mail):
wow, atrocious spelling there. Sorry. Should be: ... thecorrect (if not the .... point is government subsidizing ...
9.20.2006 9:07pm
Rhymes With Right (mail) (www):
Part of what I find shocking is the fact that the judges in this case seem to have taken it upon themselves to overturn the controlling rulings made by the United States Supreme Court. They are clearly acting above their pay grade.

But then again, since this is the Ninth Circus, why should we be surprised that the judges simply make up the law to suit their fancy in religious freedom cases? After all, they did it in the Harper case just a few months ago.
9.20.2006 9:44pm
Richard Aubrey (mail):
J. U.

You got the Noble First wrong.

It is not "the" establishment of religion. That could easily refer to a verb, or a process. Congress, in that case, could not make a law about establishing a religion.

The actual text is "an" establishment. Clearly referring to a noun. Someplace in the Founders' minds was an actual or potential establishment of religion which those busybody lawmakers were required to leave alone.

Big difference, especially as, some have reminded us, most states had "established" churches. But it would appear any organized church could be "an establishment".
9.20.2006 9:45pm
Jim Henderson (mail):
Jefferson might not see the problem that the Judge Karlton has stumbled over. In a letter to Thomas Cooper, in October 1822, he mentioned, in a passing discussion of his distemper for Presbyterians, that the Albemarle County Courthouse was the common facility for worship among the four prevelant Christian sects of the community: In that 1822 letter, Jefferson wrote, "In our village of Charlottesville, there is a good degree of religion, with a small spice only of fanaticism. We have four sects, but without either church or meeting-house. The court-house is the common temple, one Sunday in the month to each. Here, Episcopalian and Presbyterian, Methodist and Baptist, meet together, join in hymning their Maker, listen with attention and devotion to each others' preachers, and all mix in society with perfect harmony." Breezily expressed, free from seeming condemnation, Jefferson's description is devoid of any sense that he is cataloging a wrong.
9.20.2006 10:26pm
Revonna LaSchatze:
Well, if we're really going to quibble, I think that whether "the county can be forced to subsidize a religious organization's prayer meetings by requiring it to provide the religious organization with a free place to worship" is the question which he says is answered by a quick read.

I agree Marcus.
There's a reason this man is a real-life judge, and EV and his brother are ... professors, intelligent scholars and nice guys though they may be.
9.20.2006 11:21pm
Brian G (mail) (www):
What a brilliant judge this guy is. With that kind of analysis, I should be ready to take my seat on the federal bench at the end of this semester.
9.21.2006 1:11am
Richard S (mail):
How many of the judges who made this decision were law profs?
9.21.2006 2:13am
Revonna LaShatze:
I love it.
He's a dumb judge because the results don't come out the way you would rule? Are the right answers accessible through a computer program? If so, why stick with judges who understand how can consider how things really work in American society and those workings fit into what the Constitution tells us.
9.21.2006 2:35am
Revonna LaShatze:
So we let them have a meeting and make a speech, but what do we do when they want to rent out the library once a week on Sunday mornings to have the "next edition of their meeting"? At what point is governemt subsidizing religion?


These are the types of real life concerns that you see occuring in real communities. "Why does this newly established church group that is saving up to build their own facility get to rent the school gym on the weekend to organize or worship? What about my religious group? No, we don't want to rent it another day -- we want it then too."

So the answer is: not a first come, first serve, who can pay the highest rental fee. It's keep the church activities out of public buildings. Makes sense to me, and there is legal precedent to support it.
9.21.2006 2:40am
Craig D.:
Revonna: why should a church group that wants to meet every Sunday (or Saturday, or whichever), be treated differently from, say, a new Greenpeace chapter that likewise "is saving up to build their own facility"?

Churches shouldn't get preferred access, but I don't see why they shouldn't get equal access [which may include rules that limit the ability to use the facility as a weekly meetingplace, such as a cap on bookings over time].
9.21.2006 8:54am
Revonna LaShatze:
" ... but I don't see why they shouldn't get equal access "

Because the community has no community interest in helping citizens to support and grow their private religion.

I mentioned local anti-discrimination that might conflict. Is your religion, that wants free access to public buildings, open to all members of the community. Are your programs somehow going to benefit the community as a whole? I doubt it.

Otherwise you would be a "community" group made up perhaps of those with religious leanings, but not a private "religious" group -- with higher aims than serving the earthly community.

Maybe some of you are being confused on that point. Religious people are participate in community groups that would have access to public resources.

Religious groups with private aims should fund their own activities. There is no expectation that public taxpayers should begin to subsidize their good works, because that opens the municipality to true charges of discrimination and playing favorites.

Are there many Black Muslims in California? Nation of Islam adherents, or non-Jewish Middle Eastern immigrants who wish to continue practicing their religion without interference in America? In diverse Chicago, you have these groups, and they are not considered fringe. Mosques are being built in the suburbs. No one is afraid.

Just remember:
if you would reserve a library room for the Christian Ladies Social tea, you set a precedent for the men in Nation of Islam to also have the opportunity to meet there. I suspect small town America would want to avoid that, by allowing secular groups perhaps with religious members to hold public meetings, but not becoming a free meeting ground for every religious group who could then demand access once you let the first religious group come meet, because you don't want to be seen as discriminating against "the religious".

Maybe those who developed and shaped precedent on this over the years know how American communities work, and weren't all that dumb as newcomers to the subject might think.

It's better for religion not to become too dependent on the government either, as that would begin to define private worship. The separation is not an anti-religion stance, it's actually pro-religion.
9.21.2006 9:21am
Craig D.:
I guess I'm still not getting how PETA or the NRA is OK, but a religious organization (be it Christian, Sikh, Hindu, Wiccan, or whatever) isn't.

There are all kinds of nonreligious groups which you can argue that "the community has no community interest in helping citizens to support and grow" that group, and that don't meet the standards you're asking religious people to meet as to benefitting the community as a whole, or being open to the community as a whole.
9.21.2006 10:04am
Revonna LaShatze:
I'm still not getting how PETA or the NRA is OK, but a religious organization (be it Christian, Sikh, Hindu, Wiccan, or whatever) isn't


It's not a good/bad judgment.
Anyone can join PETA or NRA -- their purposes transcend segments of the population

Religion involving beliefs in higher leaders
historically is treated differently; we're free to pursue what we choose, but the government doesn't pay or otherwise encourage government involvement.

Seems to have worked well so far. A very neutral policy.
9.21.2006 11:08am
PatHMV (mail) (www):
And anyone can join most religious organizations, Revonna, so long as they are believers. They are a group of individuals joined together for a common purpose, just as is PETA or the NRA or the (non-Christian) Ladies Tea Social.

Religious groups also "trancend segments of the population" (whatever you mean by that). Christians can be white, black, yellow, brown, red, whatever. They can be rich or poor. They can be vegetarians or carnivores. They can be Republican or Democrat. In fact, how much would you like to bet that the membership in the Baptist church is far more diverse racially, ethnically, economically, and politically, than the membership of PETA?
9.21.2006 11:51am
Richard S (mail):
"Religion involving higher leaders"? What does that mean? That's a very superficial definition of religion. Wouldn't an art exhibit meet that standard? After all, the purpose of art, at least according to many people, is to draw us up to higher things.

Moreover, as the citations from Jefferson's life mentioned above show, this is not the only way that these things have worked historically.

I bet that for most of this country's history in most towns, such accommodations were common. I suspect that the precedents supporting this opinion are recent.

How would this precedent apply to colleges and universities? Should the chapel on the grounds of the University of Virginia be razed? Should the Hillels at public universities not be allowed to hold services on ths high holy days in auditoriums?

Perhaps one might argue that there is a difference universities and high schools. What is the principled foundation of such a distinction? Is it simply, "it seems reasonable to we judges" That seems to make law whatever judges say is reasonable, which, in effect, makes them judges in their own case--the very antithesis of law.
9.21.2006 11:58am
Craig D.:
Richard, an important note: based on the outline in this post, the case is about whether the government agency is allowed to exclude religious worship, not whether it is forced to do so. The distinction is important.
9.21.2006 12:02pm
Richard S (mail):
In that case, then one relevant question is the definition of religion. Can a reasonable and stable one be had that would distinguish, say a Quaker meeting or a Christian Science gathering from any other form of group gathering for disucssion?

What about a group that gathers to discuss Mark or Plato? Both of them are turning to "higher leaders"?

Should the definition of religion include God? But what if there is no God? Then they are gathered to discuss a falsehood. In that case, how does one distinguish the falsehood called "God" from other falsehoods?

Ironically, it might be that the very definition of religion can only make sense if one assumes that there is a God?

If one know much of the history of dissenting Protestant sects, in particular, defining religion becomes very difficult indeed.

To turn it a bit, many people in the gay marriage debate raise the religious issue--and argue that marriage is a religious thing that ought not to involve the state. Trouble is the Purutans did not see it that way. They thought the Catholic and Anglican churches were wrong to think of marriage as a sacrament. Instead, they argued it was a strictly civil thing to be done by judges or JPs. Hence one cannot simply say that marriage is a religious institution. So too with many other things. Once one is no longer talking about Catholicism, it becomes very hard to define what is a religion.

Many of the things that people often assume make religion religion do not, in fact, do so.
9.21.2006 12:18pm
Richard Aubrey (mail):
Craig D.

If you're referring to me and the distinction between "the" and "an" in the First, I don't see your point.

Congress is not allowed to make a law respecting an existing religious organization (an establishment). To exclude is a positive act, and, since "Congress" has morphed to any government agency at all, the agency is not allowed to positively act to disadvantage a religious organization based on the fact that the organization is religious and not on any other fact.

I knew of a church which had offered its fellowship hall to AA meetings, only to find out that those guys smoke like chimneys and don't pick up the butts. Withdrawing the privilege wasn't based on the alcoholism, but on the littering which the leadership didn't seem to be able to address. If the agency didn't like the lingering scent of incense from the church service, or crumbs from the fellowship donuts, they'd have a point. But this action is based solely on the religious nature of the group.

And the First addresses that in two ways: "no law", and "nor prohibiting".
9.21.2006 12:22pm
Revonna LaShatze:
Richard,
Wow they sure have relaxed standards where you're at.
Go sign up for Muslim brotherhood and let me know if you're in. Some reason, it didn't work for me.
9.21.2006 1:40pm
Revonna LaShatze:
" After all, the purpose of art, at least according to many people, is to draw us up to higher things."

Are you a hippie?
Higher leader = God.
"We believe in one God, father of the Almighty, creator of Heaven and Earth. Of all that is seen and unseen"

It ain't exactly the higher power of art but you provide an excellent example of how religions would be diluted once the government starts getting involved.
9.21.2006 1:42pm
Richard Aubrey (mail):
Revonna: At some risk, I will ask, do you have a point?
9.21.2006 2:37pm
richard s (mail):
I am not a hippie, but I am trying to find a principled definiton of religion. Take a look at Shelley--"Poet's are the unacknowledged legislators of the universe." The museum was invented by secular people as a replacement for the church.

If one defines religion teleologically (in terms of what it does or its ends), then it is perfectly reasonable to say that a museum is a religious building.

As a conceptual matter, the hippies were correct. Art is religion. It might be a pagan religion, but it is a religion--at least as the term is usually understood.

One can see the problem with reference to the Muslum brotherhood. Is the Muslim brotherhood the authority on the definition of religion?

I would argue that Islam is not a religion. As a matter of history and philosophy, "religion" is a Christian concept. "Believe in me and have eternal life." Belief is the essence of Christianity. In Islam, the task is to follow the law and be part of the Umma. To think of it as a "religion" is to see it through Christian eyes.

In short, church and state are not cenceptually separable in Islam. To separate Islamic law from civil law is to change the nature of Islam. In Christianity, it is perfectly reasonable to separate the two.

As our Islamic population grows, this will be an increasingly large problem. It is already a problem in Europe.
9.21.2006 3:17pm
Thorley Winston (mail) (www):
So we let them have a meeting and make a speech, but what do we do when they want to rent out the library once a week on Sunday mornings to have the "next edition of their meeting"?


Either tell them that we're sorry but the library is closed on Sundays or rent it to them at the rate necessary to cover the cost for keeping it open for them on a Sunday.
9.21.2006 3:29pm
Revonna LaSchatze:

Why is the library closed on Sundays?

I'm suing over that. Discrimination.
9.21.2006 3:46pm
Revonna LaSchatze:

I would argue that Islam is not a religion.

You will do just as well as the guy going to argue that his art is a religion.

Do you ever come out of those blue states and actually get to know the American people?
9.21.2006 3:48pm
richard s (mail):
Revonna. You seem to define terms solely by convention. That is problematic. There is no necessary relation between what most people believe to be true and what, in fact, is true.

I have lived many years in both red states and blue states.

Two points to make things concrete. One. The separation of church and state draws upon a distinction between belief and action. That very distinction is hostile to Islam. It will not be easy to accommodate.

Two. The evidence that there is something wrong with contemporary church-state jurisprudence is our current culture war. I would say that many Christians are angry in America today because the definition of religion that the court uses is, in fact, unfair. Since it is unlikely that America will cease to be a heavily religious country, it might be necessary to find more space for religion in the public square. The alternative is probably increased heat in the culture war.

All this, I might add is partly an artifact of the growth of the state in the US. The less the state does, the less it will come into contact with religion. The more the state does, the more contact there will be.

At the moment, we have a small-state model of church-state relations in an era of the megastate.
9.21.2006 4:05pm
David M. Nieporent (www):
So we let them have a meeting and make a speech, but what do we do when they want to rent out the library once a week on Sunday mornings to have the "next edition of their meeting"? At what point is governemt subsidizing religion?
At the point where it gives "religion" a benefit not generally available to non-religious groups. (Which is not the case here; the plaintiffs are simply asking to be treated the same as other groups.)

So the answer is: not a first come, first serve, who can pay the highest rental fee. It's keep the church activities out of public buildings. Makes sense to me, and there is legal precedent to support it.
Well, I guess the statement that there "is" precedent is correct, in that this case constitutes such precedent. But unfortunately for the Ninth Circuit, the Supreme Court's precedent is controlling, and it pretty clearly contradicts this ruling. You cannot "keep church activities out of public buildings" when those public buildings are open to the public generally.

Because the community has no community interest in helping citizens to support and grow their private religion.
The community "has no community interest" in most of the groups that meet in the library. Some of the groups, like the Democratic Party, might even be detrimental to the community. But the government isn't permitted to make such a distinction.

if you would reserve a library room for the Christian Ladies Social tea, you set a precedent for the men in Nation of Islam to also have the opportunity to meet there.
That's true. So what? If you let in the Democrats (and they did), you have to let in the Republicans and the Socialists and the Greens and the Libertarians and the Nazis. What's your point?
9.21.2006 5:00pm
Seamus (mail):

the High Court's purported inability to distinguish between a sermon and a speech



Does the judge mean anything like the High Court's purported inability to distinguish between burning a flag and a speech, or between a "Fuck the draft" jacket and a speech? (Since a sermon is actually a kind of speech, I guess not.)
9.21.2006 5:29pm
Seamus (mail):

How bizarre--how does Judge Karlton get from the "plain meaning" of the First Amendment that the County Council is prevented from engaging in establishments of religion? Last I checked, the Contra Costa County Council was not Congress.



Easy. By reading the "plain meaning" of the Due Process Clause of the 14th Amendment that "incorporates" into the Constitution all the personal "liberties" from the Bill of Rights that are "implicit in the concept of ordered liberty." (Now if you ask how letting a church group meet in the library violates the concept of ordered liberty, or is even a violation of a right or liberty, I'm afraid I can't help you.)
9.21.2006 5:39pm
Revonna LaShatze:
if you would reserve a library room for the Christian Ladies Social tea, you set a precedent for the men in Nation of Islam to also have the opportunity to meet there.


That's true. So what? What's your point?

Don't open that door. Libraries are not for Christian teas, or Muslim brotherhood meetings.

If you think regular folks don't like it when prayers were kept out of schools, you are kidding yourself at how this one will go over. Think budget, and separate spheres.
9.21.2006 7:22pm
David M. Nieporent (www):
Don't open that door. Libraries are not for Christian teas, or Muslim brotherhood meetings.
"Libraries" may not be. But meeting rooms, generally open to community groups, which are located within libraries, are. (Of course, they may well forbid "tea" in that they may forbid all food and drink -- but they can't do so only for religious groups.)

And incidentally, both "Christian teas" (again, to the extent tea is allowed) and "Muslim brotherhood meetings" are allowed here. The only thing this decision actually forbids is religious worship services. Social meetings of religious groups are not, and cannot, be banned, even under this ruling.

If you think regular folks don't like it when prayers were kept out of schools, you are kidding yourself at how this one will go over. Think budget, and separate spheres.
Fortunately, the test for constitutionality is not "what regular folks like."
9.21.2006 7:39pm
Seamus (mail):
Just so we're clear: Isn't this the same court that held that it *wasn't* a violation of the Establishment Clause for a public school to require students to pretend to be Muslim for three weeks, taking Muslim names, reciting Muslim prayers, and simulating the Ramadan fast? (See Eklund v. Byron Union School District, 154 Fed.Appx. 648, 2005 WL 3086580 (9th Cir. Nov. 17, 2005).) Different panel, I know, and technically the cases are distinguishable, but there's something a bit screwy about the court's First Amendment jurisprudence.
9.21.2006 7:59pm
richard s (mail):
If one understands that "religion" is not the proper term with which to describe Islam, it might be easier for our laws to deal with radical Muslims in America.

We may regulate action, not belief. (We may, perhaps must, give preference to the creed which endorces that distinction--the belief we see in the Virginia Statute for Religious Freedom--"God hath created the mind free.")

When possible, we should find space for those actions that are connected to beliefs. As President Washington noted in his famous letter to the Quakers, allowing them not to serve in the army is a matter of prudence, not right. If 40% of the country wished to be conscientious objectors in a time of war, we would be in trouble.

The flip side of this is that there is no reason not to let public spaces be rented out or simply open for use on an equal basis to Quaker meetings, Baptist services, marriage ceremonies, Greenpeace activists, artists, and social networking groups. The state is not endorsing one set of beliefs over another when all have the same oppotunity to use the space.

One could say, however, that when the Court singles out certain groups it is making an invidious distinction.
9.21.2006 9:29pm
Richard Aubrey (mail):
Seamus. It is the same court. And this in no way indicates any special animus against Christianity versus some other religion.

Possibly a fear of being blown up, but no special animus.
9.22.2006 12:30am