Lamb’s Chapel, The First Amendment and Satellite Beach.

Lambs-Chapel-First-Amendment-ROHOne of the issues the City Council of Satellite Beach took up during their last meeting on February 6, 2013, was “Resolution 924” which:

Establish(s) policies and fee schedule for use of Satellite Beach facilities.

The Council identified issues with the proposed fee schedule and sent the issue back to the Recreation Board for more study and review. However, while fees for use of facilities will not change, there is underlying issue that remains.

We want to address that issue here.

Several sections of proposed Resolution 924 dealing with the administration of the fees were “brought forward” from the current City code. Included is “Section 33” which reads:

Section 33 Permission to use the facilities for denominational and non-denominations religious services or for “Sunday School will be denied, but church-affiliated groups may reserve the facilities for social or recreational purposes.

A government denying use of a facility based on the religious content speech has been deemed un-Constitutional by the Supreme Court.

The case the Court ruled upon is the case Lamb’s Chapel v. Center Moriches Union Free School District.

Lamb’s Chapel, an evangelical church, applied to the local school board for use of under the school board’s policy of letting outside groups rent facilities after school hours. Other groups had rented the school for such things as “civic, social and educational” events. The School Board had established rules which stated:

The rules allow only 2 of the 10 purposes authorized by § 414: social, civic, or recreational uses (Rule 10) and use by political organizations if secured in compliance with § 414 (Rule 8). Rule 7, however, consistent with the judicial interpretation of state law, provides that “[t]he school premises shall not be used by any group for religious purposes.” App. to Pet. for Cert. 57a.

(Please note how the “religious purposes” denial follows closely to that of Satellite Beach’s Section 33.)

Lamb’s Chapel’s made two applications to the school board stating the group wanted to show an educational series of films from the James Dobson led group “Focus on the Family.”

The School Board denied each application:

The District denied the first application, saying that “[t]his film does appear to be church related and therefore your request must be refused.” App. 84. The second application for permission to use school premises for showing the film, which described it as a “Family oriented movie–from the Christian perspective,” App. 91, was denied using identical language.

Lamb’s Chapel sued…

…challenging the denial as a violation of the Freedom of Speech and Assembly Clauses, the Free Exercise Clause, and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment.

Both the District Court and the Court of Appeals agreed with the School Board and said the denial of Lamb’s Chapel’s applications by the school board was legal.

Lamb’s Chapel then applied to the Supreme Court for the case to be heard.

In a 9 – 0 decision, the Court reversed the lower Courts with Justice Byron “Whizzer” White writing the opinion saying in part:

The film involved here no doubt dealt with a subject otherwise permissible under Rule 10, and its exhibition was denied solely because the film dealt with the subject from a religious standpoint. The principle that has emerged from our cases “is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). That principle applies in the circumstances of this case; as Judge Posner said for the Seventh Circuit Court of Appeals, to discriminate “against a particular point of view . . . would . . . flunk the test . . . [of] Cornelius, provided that the defendants have no defense based on the establishment clause.” May v. Evansville Vanderburgh School Corp., 787 F. 2d 1105, 1114 (1986).

The District, as a respondent, would save its judgment below on the ground that to permit its property to be used for religious purposes would be an establishment of religion forbidden by the First Amendment. This Court suggested in Widmar v. Vincent, 454 U.S. 263, 271 (1981), that the interest of the State in avoiding an Establishment Clause violation “may be [a] compelling” one justifying an abridgment of free speech otherwise protected by the First Amendment; but the Court went on to hold that permitting use of University property for religious purposes under the open access policy involved there would not be incompatible with the Court’s Establishment Clause cases.

We have no more trouble than did the Widmar Court in disposing of the claimed defense on the ground that the posited fears of an Establishment Clause violation are unfounded. The showing of this film would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. The District property had repeatedly been used by a wide variety of private organizations. Under these circumstances, as in Widmar, there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental. As in Widmar, supra, at 271-272, permitting District property to be used to exhibit the film involved in this case would not have been an establishment of religion under the three part test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971): The challenged governmental action has a secular purpose, does not have the principal or primary effect of advancing or inhibiting religion, and does not foster an excessive entanglement with religion. [n.7]

The District also submits that it justifiably denied use of its property to a “radical” church for the purpose of proselytizing, since to do so would lead to threats of public unrest and even violence. Brief for Respondent Center Moriches Union Free School District, et al. 4-5, 11-12, 24. There is nothing in the record to support such a justification, which in any event would be difficult to defend as a reason to deny the presentation of a religious point of view about a subject the District otherwise makes open to discussion on District property.

This was not a decision based on “conservative” or “liberal” leanings. The Court said the school board could not deny Lamb’s Chapel use of public property simply because they were a church or espoused a religious point of view was held by the entire court no matter what the ideological viewpoints of each justice.

Lest one think that the decision only applies to school buildings, in the opinion, White refers to “public property” falling under this case. As the American Center for Law and Justice, who argued the case in front of the Supreme Court says:

The decision in Lamb’s Chapel applies to any government facility, whether a town hall, civic center, or city hall, that is open to the general public for social, civic, or recreational uses. We have found that most cities across America have access policies to local government buildings for community use. We have also found that most of these cities specifically prohibit religious groups from utilizing these facilities. This religious exclusion is unconstitutional in light of the Lamb’s Chapel decision.

The Satellite Beach regulation denying religious institutions the right to use public facilities is un-Constitutional and cannot be allowed to stand.

Furthermore, the City has a policy for waiving fees for the use of facilities:

Section 29 C. Other exemptions to the fee schedule may be granted by the City Manager for civic or educational activities which are not religious, political or commercially oriented.

This too flies in the face of the Constitution. While the City allows for a waiver of fees for educational purposes, it will not waive fees if that education is religion oriented. The City is placing an impediment to speech based on the content of the speech of a religious educational group that it does not place on a non-religious educational group.

The key here is that the City must remain neutral in the areas of “viewpoints.” If it is going to allow groups to rent city facilities, it must allow religious groups as well.

This issue has been sent to City Attorney Jim Beadle who hopefully will have a report to the City Council at the next regular City Council meeting on February 20, 2013.

We’ll keep you informed of any developments.

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