May Religious Worship Be Excluded from a Limited Public Forum? Commentary on the Ninth Circuit Court of Appeals Decision in Faith Center Church Evangelistic Ministries v. Glover
Norman T. Deutsch
Albany Law School
University of Hawaii Law Review, Vol. 31, No. 29, 2008
The Supreme Court has struck down every attempt to exclude religious speakers from limited public forums. Nonetheless, governments keep trying to exclude them. A recent example is Faith Center Church Evangelistic Ministries v. Glover. In that case a majority of a three judge panel of the Ninth Circuit Court of Appeals held that religious worship may be excluded from a limited public forum, and a majority of the judges on the Ninth Circuit denied a rehearing en banc. The article explains why this holding violated the First Amendment rights of the religious speakers. It also resolves some of the remaining issues concerning the exclusions of such speakers from limited public forums. The County created a limited public forum when it made its library meeting rooms generally available for a variety of community activities, but prohibited its use for religious services. The principal issue that divided the parties and the judges was whether the exclusion was viewpoint neutral or viewpoint discriminatory. The article makes the point that not only was the exclusion impermissibly viewpoint discriminatory, but that it was also impermissibly content discriminatory. The majority panel reasoned that the exclusion was a constitutionally permissible content discriminatory “blanket exclusion” of subject matter that defined the scope of the forum. In so doing, the majority defined the forum by both its inclusion (community activities) and its exclusions (religious services). The article, however, establishes that limited public forums are defined by their inclusions, not their exclusions. It also clarifies the important difference between permissible and impermissible content based exclusions. Addditionally, the article explains that religious worship is a community activity that inherently expresses a viewpoint. Consequently, the religious speaker sought to bring a religious perspective to otherwise permissible subjects. The County excluded the speaker from doing so because of disagreement with, and hostility towards, religious worship in the forum. It also impermissibly took it upon itself to decide what religious speech is deserving of expression. Consequently, the exclusion should have been subject to strict scrutiny. The article also makes it clear that the government may exclude religious worship from public property depending on the nature of the forum. Once the forum is defined, however, the government must respect the boundaries it has itself created. Having opened its library meeting rooms for community activities, the County could not exclude religious worship absent some narrowly tailored compelling interest. Finally, the article demonstrates that the First Amendment Establishment Clause does not provide such an interest.
Number of Pages in PDF File: 29
Keywords: religious worship, religious speakers
Date posted: October 29, 2009