Key point 14-06. Adults may use public property for religious purposes if the property is used by community organizations for non-religious purposes. Excluding religious speech, while allowing other kinds of speech, violates the first amendment guaranty of free speech.

Use of Public Property for Religious Purposes

* A federal appeals court ruled that a city’s refusal to allow a church to use the town hall for weekly Bible studies violated the first amendment guaranty of free speech. A town owns a facility known as the "town hall." The building has a gymnasium and fifteen small meeting rooms. The majority of the building is used for town offices, but three or four of the rooms are open for community use. An organization wishing to use one of these rooms is given an application and a copy of the town’s rules and regulations for use of the property. A Protestant church submitted an application to use the town hall for Bible study every Thursday evening and Sunday morning during the year. This application was approved, and the church began meeting in the town hall twice each week. Shortly after the church began using the Town Hall facilities, it placed an ad in the local newspaper inviting the public to attend the Bible studies. This resulted in an angry phone call to a town official from a citizen complaining that the property was being used for church services. In response to this call, the town revoked the church’s permit to use the town hall. The church filed suit in federal court, claiming that the town’s actions violated the constitution. A trial court rejected the church’s claim, and the case was appealed.

A federal appeals court ruled that the town’s revocation of the church’s permit to use the town hall for Bible studies violated the first amendment. The court concluded,

It is fundamental first amendment jurisprudence that where a municipality requires a permit for expressive activity the "scheme" for issuance of the permit "must set objective standards governing the grant or denial of [the permit] in order to ensure that the officials not have the ‘power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.’" Furthermore, "discrimination against speech because of its message is presumed to be unconstitutional." However, "restrictions on speech in a limited public forum will withstand first amendment challenge if they are reasonable and viewpoint neutral." The town’s written policy created a limited public forum. Because the written policy itself was utterly silent on the issue of whether the town hall could be used for religious activities of any kind, it could not serve as the basis for a reasonable, viewpoint neutral exclusion from the town hall of religious worship services, such as those conducted by the church. Indeed, in providing that "the town reserves the right to refuse or terminate permission to use any town facility for any reason," the written policy constituted an unconstitutional prior restraint on speech that gave [the town commissioner] unfettered discretion "to discriminate based on the content or viewpoint of speech." [The commissioner] did precisely that when he, and he alone, decided that, while religious worship services were generally permitted in the town hall, religious worship services involving proselytizing were not permitted. Therefore, we hold that the town’s revocation of church’s permit to use the town hall for their worship services violated church’s first amendment right to free speech. Amandola v. Town of Babylon, 251 F.3d 339 (2nd Cir. 2001).

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