Recent Developments in Federal Court Regarding Freedom of Religion – Part 3

A federal appeals court ruled that a city could not refuse to allow an evangelistic film on the life of Christ to be shown at a city-owned “senior citizen center.”

Church Law and Tax1998-07-01

Freedom of Religion

Key point. Government cannot forbid religious groups from using public property because of the religious “viewpoint” of their speech.

A federal appeals court ruled that a city could not refuse to allow an evangelistic film on the life of Christ to be shown at a city—owned “senior citizen center.” The city of Albuquerque owns and operates six senior centers. The centers are multipurpose facilities that provide forums for lectures, classes, movies, crafts, bingo, dancing, physical exercise, and other activities. People who use the senior centers do not reside there, and all of the programs are voluntary. Many of the programs at the senior centers are organized and sponsored by private individuals or organizations. Senior center policies permit non—member groups to use the centers for classes and other activities if the subject matter is “of interest to senior citizens.” Alternatively, groups may use the centers without regard to this subject matter requirement if they are composed of seventy—five percent or more senior citizens. Nonmembers or persons under fifty—five years of age may conduct classes, and people who deliver lectures or teach classes are also permitted to distribute literature. The range of subjects that qualify as being “of interest to senior citizens” is quite broad. The senior centers’ activities catalogs list many of the programs that meet this requirement, including a number of classes and presentations in which religion or religious matters are the primary focus, such as Bible as Literature, Myths and Stories About the Millennium, Theosophy, and A Passover Commemoration (an oratorio). The catalogs encourage “ideas for new classes and programs” as well. In 1994 a pastor (over the age of fifty—five) requested permission from the supervisor of one of the centers to show a two—hour film entitled Jesus. The film recounts the life of Jesus Christ as described in the Gospel of Luke. At the conclusion of the story, a voice—over narrator makes affirming statements such as, “Jesus is exactly who he claimed to be-the Son of the Lord, the Savior of all mankind.” The narrator then invites viewers to adopt the Christian religion and to join him in a short prayer. The pastor also requested permission to give away giant—print New Testaments to persons attending the film. A city official denied the pastor’s request, stating that city policy prohibited the use of senior centers “for sectarian instruction or as a place for religious worship.” The city adopted this policy to conform with the terms of the Older Americans Act. The Older Americans Act provides federal funding to the states for multipurpose senior centers, but requires, as a condition for receiving such funding, that the “facility will not be used and is not intended to be used for sectarian instruction or as a place for religious worship.” 42 U.S.C.A. ⊥ 3027(a)(14)(A)(iv). In keeping with this directive, city personnel screen programs for sectarian instruction or religious worship before allowing them at the senior centers. Senior center employees also monitor presentations for religious content by sitting in on classes and entertaining objections from senior center members who call attention to presentations falling into one of these forbidden categories. When senior center employees determine that presentations are too religious in nature, they intervene to stop the presentations. There are no official criteria or written standards to assist them in deciding whether or not expression constitutes “sectarian instruction” or “religious worship.”

A federal appeals court ruled that the city acted improperly in denying the pastor’s request to show the religious film. The court began its opinion by noting that “the government’s ability to restrict protected speech by private persons on government property depends, in part, on the nature of the forum.” It referred to three kinds of forums that have been recognized by the Supreme Court (these are described in the previous recent development). The court concluded that the senior centers were limited public forums because the city limited access to these centers in two ways. First, it imposes an age requirement for participation; and second, it limits the subject matter of presentations to topics “of interest to senior citizens.” Restrictions on access to such forums based on speaker identity and subject matter “are permissible only if the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” The city claimed that its policy denying religious instruction is a restriction based upon “content,” not viewpoint, because it disallows all religious instruction and worship in its senior centers regardless of the particular religion involved. The court disagreed, referring to a Supreme Court decision suggesting that the mere fact that a regulation categorically treats all religions alike does not answer the critical question of whether viewpoint discrimination exists between religious and nonreligious expression. Lamb’s Chapel v. Center Moriches Union Free School District, 113 S. Ct. 2141 (1993).

The court pointed out that the city had already “opened the doors” of its senior centers to presentations about religion. The city allowed speakers to discuss the Bible from a “strictly historical” perspective and to address religion as long as such presentations could be characterized as “a literature discussion or a philosophical discussion.” The court continued:

The film Jesus dealt with subject matter similar to that which would be included in a class on the Bible as literature. The film ran afoul of city policy, however, by advocating the adoption of the Christian faith. In contrast, a film about Jesus’s life that ended on a skeptical note and urged agnosticism or atheism would not have contravened the city’s policy. Because “[t]he prohibited perspective, not the general subject matter” triggered the decision to bar the private expression, the city’s policy is properly analyzed as a viewpoint—based restriction on speech.

Moreover, even if the city had not previously opened the senior centers to presentations on religious subjects, its policy would still amount to viewpoint discrimination. Any prohibition of sectarian instruction where other instruction is permitted is inherently non—neutral with respect to viewpoint. Instruction becomes “sectarian” when it manifests a preference for a set of religious beliefs. Because there is no nonreligious sectarian instruction (and indeed the concept is a contradiction in terms), a restriction prohibiting sectarian instruction intrinsically favors secularism at the expense of religion. Therefore, we conclude that the city’s policy constitutes viewpoint discrimination.

The court noted that “government bears a particularly heavy burden in justifying viewpoint—based restrictions in designated public forums” since viewpoint discrimination is “an egregious form of content discrimination.” At a minimum, to survive strict scrutiny the city’s policy must be “narrowly drawn to effectuate a compelling state interest.” The court concluded that this test was not met. As a result, the city violated the first amendment guaranty of free speech by refusing to allow the film Jesus to be shown. The court rejected as “insulting to senior citizens” the city’s argument that older citizens are “vulnerable” to “religious proselytizing and coercion.” People in this age group “are not in need of special insulation from invitations to adopt a religious faith; nor are they, as a class, more likely than other citizens to be intimidated by such invitations. Moreover, the showing of the Jesus film and the distribution of giant—print New Testaments can hardly be construed as intimidating or coercive.” Church on the Rock v. City of Albuquerque, 84 F.3d 1273 (10th Cir. 1996).
[Use of Public Property for Religious Purposes]

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