GILBERT, Ariz. — An East Valley church that claims Gilbert discriminates against religious groups has lost an appeal for an injunction, but the ruling marked only the latest step in an already yearslong federal case against the town.
On Nov. 20, the 9th U.S. Circuit Court of Appeals affirmed a federal judge’s decision to deny Good News Presbyterian Church an injunction against a city sign code that the church contends violates its First Amendment rights.
But while the decision means Gilbert can continue to enforce the code against the church, the debate over whether it discriminates against religious groups will still be left to a judge.
"Obviously we're disappointed that the court affirmed the injunction denial, but we're pleased that it remanded (the case to district court)," said attorney David Cortman of the Alliance Defense Fund, which represents the church.
Town Manager George Pettit said the city had not been notified about the ruling in time for this report.
"We'll just have to review the court's ruling and determine what our next steps are," he said.
The issue started in July 2005 when Gilbert's Code Compliance Department notified the church it was violating the sign code by posting signs too early in a public right of way.
The church, which had been spreading the word about its Sunday services by posting signs a day or so before the services, reduced the number of signs and the amount of time they were out.
Gilbert notified church officials again in February 2007 that they were in violation.
Then in March 2007, Good News filed a lawsuit alleging the code regulating signs discriminated against religious groups. The church alleged the code mandated that religious assembly signs be smaller in size, fewer in number and displayed for less time than comparable signs, violating its free-speech rights.
Religious “speech should not be treated as a First Amendment orphan," Cortman said. "Churches should certainly have the same First Amendment rights to speak, and that's the principle of this case."
The church, which has conducted its services in elementary schools for about five years, has never been fined. The 45 members now meet at a school in Chandler, but they still want protection from the ordinance because signs for the church are posted in nearby Gilbert.
Gilbert suspended the code while the case was in court at the request of the church but that changed in January 2008 when Gilbert amended the code.
The changes allowed for bigger signs, no limit on the number of signs and more time for them to be up. The code’s wording was also changed so that signs for charitable, community service, educational and other nonprofit organizations would be as restrictive as for churches.
And although the church was then allowed to post its signs 12 hours before services instead of two, it was not satisfied with the changes.
It “basically meant they had to put up their signs after dark, which didn't provide any benefits," Cortman said.
Gilbert contends that regulation doesn't discriminate between noncommercial organizations like churches and nonprofits, a finding the 9th Circuit agreed with in its 25-page ruling.
The town maintains that signs are regulated for aesthetics and safety.
"Beauty and safety are familiar players in the free-speech skirmishes involving sign ordinances," Judge M. Margaret McKeown wrote for the unanimous three-judge 9th Circuit panel in Reed v. Town of Gilbert.
McKeown wrote that because Gilbert doesn't discriminate between noncommercial and commercial speech and the regulation does not discriminate based on content of signs, the denial of an injunction was affirmed. The 9th Circuit directed the issue of whether the sign code is constitutional back to the district court.
Cortman said he expected the case to be litigated for several years.
"The city has wisely revised their ordinance once and certainly has the ability to do it again based on court opinion," he said. "If they change it, then the case could be over quickly."