Federal appeals panel says religious group was improperly barred from city funds

Friday, April 21, 2000

City officials in Tucson, Ariz., violated the First Amendment rights of organizers of a religious event by denying them city services to help cover costs of the event, a federal appeals court panel has ruled.

A three-judge panel of the 9th U.S. Circuit Court of Appeals voted 2-1 yesterday to reverse a district court’s ruling that Tucson officials acted constitutionally when they denied Patricia and Robert Gentalas’ application to the city’s Civic Events Fund for reimbursement costs of a National Day of Prayer event held in one of the city’s public parks.

Tucson created the fund to support events “that celebrate and commemorate the historical, cultural and ethnic heritage of the City and the nation, or increase the community’s knowledge and understanding of critical issues, with the purpose of improving the citizens’ quality of life; generate broad community appeal and participation; instill civic pride in the City, state or nation.”

The Civic Events Fund, however, also states that “events held in direct support of religious organizations” are not eligible for the funds. In late 1999, a federal district court judge ruled that the city’s denial of the Gentalas’ application did not violate their First Amendment rights and that funding the National Day of Prayer activities would violate the separation of church and state.

The 9th Circuit panel in Gentala v. City of Tucson disagreed, saying the city’s denial did violate the free-speech rights of the Gentalas and that the establishment clause would not be subverted by the use of some city funds to help pay for the event.

Judge David O. Carter, writing for the majority, said the city’s events fund was a limited public forum and that religious speakers could not constitutionally be denied access to the fund.

“Although the Fund is not a forum for speech in the physical sense, as a government-created source of funding to cover costs associated with engaging in behavior deserving First Amendment protection, the Fund is a forum within the meaning of the First Amendment,” Carter wrote.

Carter said that while the Gentalas’ event included sectarian elements, “it also had a civic character and fits comfortably within the general subject matter of events for which the Fund was created.”

Citing the U.S. Supreme Court’s 1995 decision in Rosenberger v. University of Virginia, Carter wrote that “the Gentalas’ application could not be denied merely because it would bring a religious perspective to an otherwise permissible conversation.” In Rosenberger, the Supreme Court ruled that it was unconstitional for university officials to deny printing costs to a student group that published a Christian magazine. The University of Virginia had created a fund to cover printing costs for student publications, except those created by groups engaging in “religious activities.” The high court concluded that the university could not deny funds to student groups simply because of the groups’ viewpoints.

Tucson officials had argued before the district court and the 9th Circuit panel that if they provided any support for the Gentalas’ that they would violate the establishment clause of the First Amendment.

The 9th Circuit rejected that argument.

“Even if the City’s reimbursement of costs for the National Day of Prayer event provided some support for theism over its opposite, or for Christianity over competing world views, the support provided by the City was neither substantial nor direct enough to amount to advancement of religion under the Supreme Court’s Establishment Clause jurisprudence,” Carter wrote.

Carter conceded that government funding of a public prayer service “raises obvious Establishment Clause concerns.” Nonetheless, Carter said that “excluding religious speakers from neutral government programs because of their identity and their message raises equally compelling Free Speech and Free Exercise questions.”

In his dissent, Judge Harry Pregerson said that Tucson officials acted “clearly within the bounds of the Constitution.”

Pregerson said the majority improperly defined Tucson’s Civic Events Fund as a public forum. The events fund is not a forum, he said, because the city’s administration of the program requires “editorial discretion.”

“The Court has recognized that when a government’s administration of a public property requires ‘editorial discretion,’ it should not be subject to review to determine if it is engaging in viewpoint discrimination,” Pregerson wrote.

Pregerson also agreed with Tucson officials that the establishment clause would be undermined if they helped pay for the Gentalas’ prayer event.

The event, “a gathering and prayer service for ‘Tucson Christians,’ is without question, religious activity,” Pregerson said. “The City may not sponsor or provide financial support for such religious activity. I do not agree that the award of taxpayer funds to support a religious organization constitutes an ‘incidental benefit.’ Indeed, the ‘benefit’ would constitute direct financial support of [Gentalas'] organization because the City would be paying that organization’s bills.”

Kevin H. Theriot, senior counsel for the American Center for Law and Justice and the Gentalas’ attorney, said Pregerson was “stretching the facts, and pretending that money changed hands.”

Theriot said the Gentalases were simply denied a waiver of city fees to use public space. Theriot added that Carter properly relied on Rosenberger and other precedent in finding that a “church can participate to the same extent that other civic groups” can in the city’s program.

Tucson officials can seek a review by the entire 9th Circuit or ask the Supreme Court to reverse the panel’s ruling.

Tom Berning, Tucson city attorney, told the Arizona Daily Star that the civic events program would be re-examined before the city decides whether to appeal the 9th Circuit’s ruling.