May 22, 2007
USE OF PUBLIC BUILDINGS FOR RELIGIOUS PURPOSES
By: George Coppolo, Chief Attorney
You asked whether a town that allows its town hall to be used by private organizations for private purposes can allow religious organizations or religious related organizations to use it for religious programs. You also asked if it does, must it do so for any religious group or can it be selective?
Our office is not authorized to give legal opinions and this report should not be considered one.
It does not appear that either state or federal law prohibits such a town from allowing religious or religious based organizations to use its town hall for religious purposes as long as the use does not interfere with governmental functions and the town does not favor certain religions over other religions in allowing the use.
We could not find any statutes that address this precise issue. We found one statute that authorizes The University of Connecticut trustees to convey university land to provide sites for buildings to house religious activities for students attending the university. These religious buildings must be built by, and under the auspices of, religious organizations (CGS § 10-136). But we could not locate any law addressing the use of town halls by religious groups.
There are U.S. Supreme Court decisions that establish general rules state and local governments must follow when granting or denying religious or religious-based organizations permission to use public buildings for private purposes. These rulings are based on the Court's interpretations of the First Amendment's rights concerning freedom of speech and religion, and its prohibitions concerning establishing or favoring one religion over others.
A town is under no obligation to make its facilities available to members of the public for non-government functions and activities. But once a town creates a public forum by allowing its facilities to be used by private groups for private purposes, it must satisfy constitutional rules regarding its inclusion and exclusion policies. When government creates such a forum by its policies, it is not required to allow people and groups to engage in every type of speech, and it may be justified in reserving its forum for certain groups or for the discussion of certain topics. But the restriction must not discriminate against speech on the basis of viewpoint, and must be reasonable in light of the purpose served by the forum. And the town may not by its policies appear to be favoring one religion over another or all other religions.
Because the Court's rulings are fact specific and often require subjective and objective determinations in order to apply them to different situations it is not always possible to know ahead of time whether a policy and its application to a particular organization and activity will violate the First Amendment.
To further complicate the matter, although no Connecticut statute addresses your question, one old Connecticut case addresses many of the same issues. Scofield v. Eighth School District, an 1858 Connecticut Supreme Court case, dealt with a taxpayer who objected to the use of his district's schoolhouse for religious worship and instruction (27 Conn. 499 (1858)). He complained that use by groups other than schoolchildren would increase the wear and tear on the schoolhouse furniture, thus forcing the town to raise taxes in order to replace it.
The court found that Mr. Scofield had a legitimate ground for objection. It issued an injunction against the use of school facilities by religious groups for worship, Sunday school, and other religious activities. The court enunciated its position that the objection of even one taxpayer to the use of school facilities for religious worship and instruction during non-school hours was sufficient to order a stop to the activity. The case does not appear to have been reversed or overturned, and may still be good case law today.
But it seems unlikely that a Connecticut case today would be analyzed this way in light of recent federal court decisions. And in any event, the federal constitution and its rights and obligations supersede any conflicting state statute and court decision based on an interpretation of state law including the state's constitution.
Following is (1) a general discussion of the First Amendment rights and prohibitions that a town should consider when creating and applying its policies and practices concerning the right of private organizations to use its facilities; (2) a brief overview of the controlling constitutional principles and prohibitions, (3) a more in depth discussion of leading Supreme Court cases, and (4) a summary of a 2007 federal court of appeals case that illustrates how complicated an area of law this can be.
FIRST AMENDMENT RIGHTS AND PROHIBITIONS
The First Amendment to the United States Constitution prohibits Congress from enacting any law
1. respecting the establishment of religion (this is called the First Amendment's Establishment Clause),
2. prohibiting the free exercise of religion (this is called the Free Exercise Clause), or
3. abridging the freedom of speech (this is called the Freedom of Speech Clause).
The Supreme Court has held that the First Amendment's rights and prohibitions relative to the federal government also apply to the states by the Due Process Clause of the Fourteenth Amendment (Democratic Party of U.S. v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981)). Thus they apply to policies and actions of state and local governments.
RELEVANT FIRST AMENDMENT LEGAL PRINCIPLES –OVERVIEW
Supreme Court Decisions
The Supreme Court has held that religious worship and discussion are forms of speech and association protected by the First Amendment. Beginning with Widmar v. Vincent, 454 U.S. 263, 267(1981) the Supreme Court has consistently held that once the government establishes a forum open generally to use by the public, it assumes an obligation to justify its discriminations and exclusions under applicable constitutional rulings. Under these rulings, the government must grant both religious and non-religious groups access to the forum on equal terms. In other words, the government can exclude religious speech only if (1) the content of that speech is not germane to the purposes of the forum, or (2) the expressive activity violates standard time, place, and manner restrictions on the forum's use. (see Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 830 (1995)). But the government cannot exclude religious speech simply because of its religious character.
In one leading case, the Court held that a school board's policy refusing to allow a church to show a religious film at a public school after school hours when other civic and social organizations could use the facilities favored non-religious over religious viewpoints (Lamb's Chapel v. Center Moriches Union Free School, 508 U. S. 385 (1993)). Thus, the court concluded the policy violated the First Amendment's Free Speech clause. The Court also concluded that the use of school property to show the film did not violate the First Amendment's Establishment Clause, because the film was open to the public and not scheduled during school hours or sponsored by the school.
In another leading case, the Court held that a public school's refusal to allow a club to meet in a school after hours because of the club's religious nature violated the First Amendment's freedom of speech and religion guarantees (Good News Club v. Milford Central School, 533 U.S. 98 (2001)). The Court concluded that the school's policies regarding school use by private organizations after hours created a limited public forum. When government creates such a forum by its policies, it is not required to allow people and groups to engage in every type of speech, and it may be justified in reserving its forum for certain groups or for the discussion of certain topics. But the restriction must not discriminate against speech on the basis of viewpoint, and must be reasonable in light of the purpose served by the forum.
The Court ruled that the school's exclusion of a Christian children's club from meeting after hours at the school based on its religious nature was unconstitutional viewpoint discrimination in violation of the First Amendment. It noted that the school had opened its limited public forum to activities that served a variety of purposes, including events “pertaining to the welfare of the community,” and had interpreted its policy to permit discussions of subjects such as “the development of character and morals from a religious perspective. “But the school excluded the club because its activities, which included learning Bible verses, relating Bible stories to member's lives, and praying, were the equivalent of religious instruction itself.”
Complexity of Legal Issues-Recent Court of Appeals Case
Because the Court's rulings are fact specific and require subjective and objective determinations it is not always possible to know ahead of time whether a policy and its application to a particular organization and activity will violate the First Amendment. A 2007 federal circuit court decision illustrates this difficulty and uncertainty. A non-profit religious organization went to court seeking to enjoin the county government from excluding it from holding worship services in a public library meeting room. It alleged that such exclusion constituted viewpoint discrimination in violation of First Amendment. In a two to one decision, the Ninth Circuit Court of Appeals decided that the county's policy and its decision to exclude this religious organization did not violate the constitution (Faith Center Church Evangelistic Ministries v. Glover, 480 F3d 891 (C.A.9 (Cal.),2007)).
The court decided that the county's prohibition against a religious organization conducting worship services in its public library meeting room, which was a limited public forum, was reasonable in light of the room's purpose. The prohibition did not constitute a free speech violation in the court's view because it was viewpoint neutral. The county had a legitimate interest in excluding activities that might interfere with the library's primary function as a sanctuary for reading, writing, and quiet contemplation, and the county reasonably could conclude that controversy concerning, and distraction because of religious worship within the library might alienate patrons and undermine the library's purpose of making itself available to the entire community.
Seven of the circuit's judges filed a lengthy dissenting opinion to the full pane's decision not to allow the case to be re-considered by the entire Ninth Circuit. These judges indicted that they believed the county's policies and denial in this case violated the First Amendment and they disagreed with the majority opinion's distinction between religious services and a religious viewpoint.
Following is a more in depth discussion of two leading U.S. Supreme Court cases that we referred to above.
LAMB'S CHAPEL V. CENTER MORICHES UNION FREE SCHOOL DISTRICT
Lamb's Chapel, an evangelical church applied to the school district for permission to use school facilities to show a six-part film series containing lectures by Doctor James Dobson, a licensed psychologist, former associate clinical professor of pediatrics at the University of Southern California, best-selling author, and radio commentator. The film series discussed Dobson's views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage.
The district denied the Chapel's applications to use the school, because the film appeared to be church related.
Procedural History and Lower Court Rulings
The Church brought suit in federal district court, 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.
District Court. The district court rejected all the Church's claims. With respect to the free-speech claim, the district court characterized the school district's facilities as a “limited public forum.” The court noted that (1) the enumerated purposes that state law allowed access to school facilities did not include religious worship or instruction, (2) one of the district's rules explicitly prohibited using school facilities for religious purposes, and (3) the Church had conceded that its showing of the film series would be for religious purposes. The court stated that once a limited public forum is opened to a particular type of speech, the first amendment prohibits selectively denying access to other activities of the same type. Pointing out that the school had not opened its facilities to organizations similar to Lamb's Chapel for religious purposes, the court concluded that the denial was viewpoint neutral and, thus, not a violation of the First Amendment's Freedom of Speech Clause. The court also rejected the Church's claim that denying its application demonstrated a hostility to religion not justified under the First Amendment's Establishment Clause of the First Amendment.
Appeals Court. The Second Circuit Court of Appeals affirmed the judgment of the District Court. It held that the school property, when not in use for school purposes, was neither a traditional nor a designated public forum; rather, it was a limited public forum open only for designated purposes, a classification that allows it to remain non-public except as to specified uses. The court observed that exclusions in such a forum need only be reasonable and viewpoint neutral, and ruled that denying access to the Church for the purpose of showing its film did not violate this standard.
Supreme Court's Ruling
The Supreme Court ruled that excluding events that had a religious purpose was unconstitutionally applied in this case.
Supreme Court's Reasoning
Control over access to public property that is not a designated public forum open to the public use for communicative purposes, can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.
Although the policy prohibiting all uses for religious purposes treats all religions alike, the critical question is whether the policy discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint.
The lower courts did not even suggest that a lecture or film about child rearing and family values would not be a use for social or civic purposes otherwise permitted by the school's public access rules. The District did not place those topics off limits to any and all speakers. Nor was there any indication that the application to exhibit the particular film series was, or would have been, denied for any reason other than the fact that the presentation would have been from a religious perspective. The Court noted that this application of the school district's rules seem to clearly violate the Court's prior holdings that the government violates the First Amendment when it denies access to a speaker solely to suppress his point of view on an otherwise includible subject.
The film series involved here dealt with a subject otherwise permissible under the school's access rules, and the school prohibited it being shown only because the film series dealt with the subject from a religious standpoint. The principle that has emerged from the Court's prior cases is that the First Amendment forbids the government from regulating speech in ways that favors some viewpoints or ideas at the expense of others. That principle applies to this case.
The school district argued that if it allowed its property to be used for religious purposes it would be an establishment of religion forbidden by the First Amendment. The Court suggested in a previous case (Widmar v. Vincent, 454 U.S. 263, 271, (1981)) that the state's interest in avoiding an Establishment Clause violation may be a compelling one justifying an abridgment of free speech otherwise protected by the First Amendment.
The Court concluded that fears of an Establishment Clause violation are unfounded. The Court noted that this film series 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 church members. The school's property had repeatedly been used by a wide variety of private organizations. Under these circumstances there would have been no realistic danger that the community would think that the school district was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental. 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.
The school district also claimed 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. But the Court observed that there was nothing in the record to support such a justification. The Court noted that even if there were evidence, it would be difficult to defend as a reason to deny the presentation of a religious point of view about a subject the district otherwise opens to discussion on district property.
The New York State Attorney General claimed that the exclusion of the church is justified because the purpose of the access rules is to promote the interests of the public in general rather than sectarian or other private interests. But the Court pointed out that the school's access rules allow district property to be used for social, civic, or recreational use only if it can be non-exclusive and open to all residents of the school district that form a homogeneous group deemed relevant to the event. The Court of Appeals ruled that because the school had the power to permit or exclude certain subject matters, it was entitled to deny use for any religious purpose, including the purpose in this case. The Attorney General also defends this as a permissible subject-matter exclusion rather than a denial based on viewpoint. The Court rejected these arguments.
The Attorney General also argued that there was no express finding that the Church's application would have been granted absent the religious connection. The Court pointed out that this was beside the point because the case turned on the validity of the reason the school gave for denying the Church's application, namely, that the film series sought to be shown appeared to be church related.
GOOD NEWS CLUB V. MILFORD CENTRAL SCHOOL (533 U.S. 98 (2001))
Under New York law, the Milford Central School (Milford) enacted a policy authorizing district residents to use its building after school for, among other things, (1) instruction in education, learning, or the arts and (2) social, civic, recreational, and entertainment uses pertaining to the community welfare. Two district residents were sponsors of the Good News Club, a private Christian organization for children ages 6 to 12. Pursuant to Milford's policy, they submitted a request to hold the Club's weekly after school meetings in the school. Milford denied the request because the proposed use—to sing songs, hear Bible lessons, memorize scripture, and pray—was the equivalent of religious worship prohibited by the community use policy.
Procedural History and Lower Court Rulings
The club, filed suit under 42 U.S.C. § 1983 alleging that the denial of the club's application violated its free speech rights under the First and Fourteenth Amendments.
The District Court decided in favor of Milford. It concluded that the club's subject matter was religious in nature, not merely a discussion of secular matters from a religious perspective that Milford otherwise permits. Because the school had not allowed other groups providing religious instruction to use its limited public forum, the court held that it could deny the club access without engaging in unconstitutional viewpoint discrimination.
The Second Circuit affirmed the District Court's decision. It rejected the Club's contention that Milford's restriction was unreasonable, and held that, because the Club's subject matter was essentially religious and its activities fell outside the bounds of pure moral and character development, Milford's policy was subject discrimination, which the First Amendment allows, and not viewpoint discrimination, which the First Amendment prohibits.
Supreme Court's Decision
The Supreme Court ruled that Milford violated the Club's free speech rights guaranteed by the First Amendment when it excluded it from meeting after hours at the school.
The majority reasoned as follows. (The majority's reasoning is taken directly from the majority's summary of its ruling.)
The parties agreed, and the Court assumed that Milford operated a limited public forum. A state or local government agency that establishes a limited public forum doesn't have to let people engage in every type of speech. It can reserve its forum for certain groups or the discussion of certain topics. But the power to restrict speech in this way is not without limits. The restriction can't discriminate against speech based on its viewpoint, and must be reasonable in light of the forum's purpose.
Regarding the Club's free speech rights, the Court determined that by denying the Club access to the school's limited public forum because it was religious in nature, Milford violated the First Amendment's free speech clause because it discriminated against the club because of its religious viewpoint. That exclusion, in the Court's view is indistinguishable from the exclusions it found unconstitutional in Lamb's Chapel v. Center Moriches Union Free School District, where a school district prevented a private group from presenting films at the school based solely on the religious perspective of the films, and in Rosenberger, where a university refused to fund a student publication because it addressed issues from a religious perspective.
The only apparent difference, according to the Court, between the activities of Lamb's Chapel and the Club is the Club teaches moral lessons from a Christian perspective through live storytelling and prayer, whereas Lamb's Chapel taught lessons through films.
The Court rejected the Second Circuit's view that something that is essentially or decidedly religious in nature cannot also be characterized as the teaching of morals and character development from a particular viewpoint. What matters for Free Speech Clause purposes, in the Court's view is that there is no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty,
patriotism by other associations to provide a foundation for their lessons. Because Milford's restriction is viewpoint discriminatory, the Court did not have to decide whether it is unreasonable in light of the forum's purposes.
Regarding the First Amendment's Establishment Clause the Court concluded that permitting the Club to meet on the school's premises would not have violated the Establishment Clause. The Court noted that it rejected Establishment Clause defenses similar to Milford's in Lamb's Chapel, because the films would (1) not have been shown during school hours; (2) not have been sponsored by the school; and (3) have been open to the public, not just church members. Thus, the Court determined that there was no realistic danger that the community would think that the district was endorsing religion. The Court had reached this same conclusion Widmar v. Vincent (454 U.S. 263, 272-273), where a university's forum was already available to other groups.
The Court noted that as in Lamb's Chapel, the club's meetings were to be held after school hours, not sponsored by the school, and open to any student who obtained parental consent, not just to club members. As in Widmar, Milford made its forum available to other organizations.
The Court rejected Milford's attempt to distinguish those cases by emphasizing that its policy involves elementary school children who could perceive that the school is endorsing the club and will feel coerced to participate because the club's activities take place on school grounds, even though they occur during non-school hours. The Court rejected this argument for a number of reasons.
1. Allowing the club to speak on school grounds would ensure, not threaten, neutrality toward religion, thus Milford faces an uphill battle in arguing that the Establishment Clause compels it to exclude the club.
2. To the extent the Court considers whether the community would feel coercive pressure to engage in the club's activities, the relevant community is the parents who choose whether their children will attend club meetings, not the children themselves.
3. Whatever significance it may have assigned in the Establishment Clause context to the suggestion that elementary school children are more impressionable than adults, the Court has never prohibited private religious conduct during non-school hours merely because it takes place on school premises where elementary school children may be present.
4. Even if the Court were to consider the possible misperceptions by schoolchildren in deciding whether there is an Establishment Clause violation, the facts of this case do not support Milford's claim.
5. Finally, it cannot be said that the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the club were excluded from the public forum.
FAITH CENTER CHURCH EVANGELISTIC MINISTRIES V. GLOVER C.A.9 (CAL.), 2007
A recent Ninth Circuit Court of Appeals case illustrates how difficult applying the rules the Supreme Court has established can be and how different interpretations are possible.
The Contra Costa County (“county”) makes available to the public its public library meeting rooms during operating hours. The county's stated goal in making these meeting rooms available is “to encourage the use of library meeting rooms for educational, cultural, and community related meetings, programs, and activities.” Under the library's meeting room policy, “[n]on-profit and civic organizations, for-profit organizations, schools and governmental organizations” may use the meeting room space for “meetings, programs, or activities of educational, cultural, or community interest.”
The County regulates use of the meeting rooms in the following ways:
1. library meeting rooms are available on a first-come, first-served basis;
2. the applicant must submit an application that identifies the applicant and purpose of the meeting;
3. access to the meeting room is contingent upon approval by the library staff, and the County library reserves the right to deny an application or revoke permission previously granted;
4. an applicant must pay a fee for use of the meeting room when a meeting is not open to the general public, when it charges an admission fee, or when it involves sales or solicitations;
5. schools may not utilize a meeting room “for instructional purposes as a regular part of the curriculum”; and
6. the library meeting room “shall not be used for religious services.”
Faith Center Evangelistic Ministries Outreach reserved a meeting room at the library for a four-hour period. In its promotional flyers, Faith Center described the scheduled meeting as having two components: two hours in the morning for a “Wordshop” entitled “The Making of an Intercessor, an End-Time call to Prayer for every Believer, and how to pray fervent, effectual Prayers that God hears and answers,” and two hours in the afternoon for a “Praise and Worship” meeting, including a sermon. The library ultimately advised Faith Center that it could conduct its “Wordshop” but not its “Praise and Worship” session.
District Court Ruling
1. The district court enjoined the County's policy because it was likely to result in impermissible viewpoint discrimination. (Faith Ctr. Church Evangelistic Ministries v. Glover, 2005 WL 1220947 (N.D. Cal. 2005) The district court based its order on four legal premises:
1. religious worship is speech protected by the First Amendment;
2. religious worship cannot be distinguished from other forms of religious speech;
3. the exclusion of religious worship from otherwise permissible speech of a religious nature constitutes viewpoint discrimination;
4. there was no compelling Establishment Clause concern to justify Faith Center's exclusion.
The district court made clear that it proceeded on the basis that the afternoon “praise and worship” session constituted pure religious worship services. Faith Center did not dispute this contention because it argued that even if the afternoon session was mere religious worship, the court could not draw a constitutionally permissible distinction between afternoon worship and the rest of Faith Center's religious speech activities.
Faith Center appealed the District Court's ruling to the Ninth Circuit Court of Appeals.
Circuit Court of Appeals Ruling
A divided three-member panel of the Ninth Circuit Court of Appeals disagreed with the distinction the District Court made. The majority declared that pure religious worship is not a secular activity that conveys a religious viewpoint on an otherwise permissible subject matter, (Faith Ctr., 462 F.3d at 1210). In the majority's view religious worship is not a viewpoint but a category of discussion, and a blanket exclusion of religious worship services from the forum is a permissible one based on the content of speech. Judge Tallman dissented, describing the county as having drawn an arbitrary line.
The court considered a motion to rehear the case “en banc,” which means the entire Ninth Circuit Court membership, instead of a three-judge panel, would decide the case. But there was not a majority in favor of doing this.
Seven of the member Ninth Circuit filed a strong dissenting opinion concerning the denial of the motion to rehear the case en banc. The dissenters alleged that by permitting the county to justify its discrimination and exclusion on the religious nature of the speech, the majority has effectively relegated religious worship to an inferior status vis-à-vis community and cultural speech that claims a secular component. The dissenters claimed that this disparate treatment effectively nullifies the Supreme Court's statement in Widmar that religious worship and discussion are forms of speech and association protected by the First Amendment, and runs counter to the equal access cases that follow Widmar, including Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Rosenberger, 515 U.S. 819; and Lamb's Chapel v. Ctr. Moriches Sch. Dist., 508 U.S. 384,(1993)).