Faith Center Church Evangelistic Ministries v. Glover

KARLTON, Senior District Judge,

Concurring:

I concur in Judge Paez’s well-reasoned opinion, which reflects the sorry state of the law. I write separately to express my dismay at that sorry state.

This should be a simple case it asks whether the county can be forced to subsidize a religious organization’s prayer meetings by requiring it to provide the religious organization with a free place to worship. A quick reading of the First Amendment to the Constitution of the United States should answer the question. Judge Paez’s opinion tracks the cases and reaches its laborious result because the law has so elaborated that the reaching of the conclusion requires the effort the opinion demonstrates. As I now explain, that elaboration is premised on a failure to accept the plain meaning of the First Amendment.

Both Good News Club v. Milford Cen. Sck, 533 U.S. 98 , 121 S.Ct. 2093 , 150 L.Ed.2d 151 (2001) and Lambs Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 , 113 S.Ct. 2141 , 124 L.Ed.2d 352 (1993), turn on the High Court’s purported inability to distinguish between a sermon and a speech. That distinction, however, is compelled by the First Amendment, which establishes different standards relative to government action concerning speech and government action concerning religion. The purported inability of the High Court to adhere to the distinction embodied in the First Amendment leads it to conclude that the issues tendered by cases, such as the one at bar, implicate viewpoint discrimination under the free speech provisions of the First Amendment. They simply do not. As the First Amendment notes, religious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech.

Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion. See McCollum v. Board of Education, 333 U.S. 203, 211-12 , 68 S.Ct. 461 , 92 L.Ed. 649 (1948); Engel v. Vitale, 370 U.S. 421, 433-34 , 82 S.Ct. 1261 , 8 L.Ed.2d 601 (1962). Rather, we are motivated by recognition of the passions that deeply-held religious views engender, and the ser *920 ious threat of marrying those passions to government power. Engel, 370 U.S. at 431-32 , 82 S.Ct. 1261 (“Another purpose of the Establishment Clause rested upon an awareness of the historical fact that gov-ernmentally established religions and religious persecutions go hand in hand”).

That threat is not merely historic. One need only look about the world to see that danger in play. The scenario is the same whether it is in Northern Ireland where Catholics and Protestants kill each other in an effort to establish governmental power, in Israel, where Jews and Muslims do the same, in Iraq, where Shi’a and Sunni are engaged in similar slaughter, or in Sudan where Muslims murder Christians. See School District of Abington v. Schempp, 374 U.S. 203, 219 , 83 S.Ct. 1560 , 10 L.Ed.2d 844 (1963). Nor is that the only danger.

Where government plays a role in the religious life of a pluralist society, there is the danger that government will favor the majority religion and seek to control or prohibit the rites of minority religions. See Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 , 126 S.Ct. 1211 , 163 L.Ed.2d 1017 (2006); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 , 113 S.Ct. 2217 , 124 L.Ed.2d 472 (1993); Employment Division v. Smith, 494 U.S. 872 , 110 S.Ct. 1595 , 108 L.Ed.2d 876 (1990). Such favor can only lead to alienation and social unrest.

The wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone’s religion. Everson v. Board of Ed., 330 U.S. 1, 15-16 , 67 S.Ct. 504 , 91 L.Ed. 711 (1947). Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous. See id. at 53-54 , 67 S.Ct. 504 (J. Rutledge, dissenting). The Good News Club and Lamb’s Chapel majorities’ disdain of the Jefferson model is premised on the belief that religious values enhance rather than endanger society. The legal issue, however, is different. It asks whether one can distinguish between religious speech in a categorical way, and the answer is yes. Of course there may be close cases. Such cases require the development of a delicate jurisprudence designed to protect the Establishment Clause while insulating religious practice from government intrusion.

In any event it is simply beyond cavil that the instant case does not present a close question. Appellees have been completely candid in acknowledging that the purpose of the meetings they proposed to hold on public property is “Prayer, Praise and Worship Open to [the] Public, Purpose to Teach and Encourage Salvation thru Jesus Christ and Build Up Commun[ity].” To assert an inability to conclude that purpose is religious in every sense, is to engage in the kind of sophistry that gives the law a bad name. It may be that the majority of the Supreme Court really has doubt about the ability to distinguish between religious practice and secular speech. If so, they need only leave their chambers, go out in the street and ask the first person they meet whether in the instant case the conduct is religious in character. It is simply untenable to insist that there is no difference between a prayer and e.g. political speech. To coin a phrase, one can only pray for the court’s enlightenment.

While I believe that Thomas Jefferson has the better end of the debate, that belief is irrelevant. I concur in the opinion because, as a subordinate judge, it is my duty to adhere to the precedent of the Supreme Court “no matter how misguided.” Hutto v. Davis, 454 U.S. 370, 374 , 102 S.Ct. 703 , 70 L.Ed.2d 556 (1982).