Opposition Brief — City of Albuquerque v. Church on the Rock

n> | Supreme Court, U.S.

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No. 96-286 SEP 17 1936

IN THE ‘ CLERK

SUPREME COURT OF THE UNITED STATES” ~~

OCTOBER TERM, 1996

CiTry OF ALBUQUERQUE, and TONI MARTORELLI, in her

official capacity as Director of Family and Community

Services for the City of Albuquerque, and MARK SANCHEZ,

in his official capacity as Deputy Director of Family and

Community Service for the City of Albuquerque, and

KATHLEEN STARK, in her official capacity as Supervisor,

Bear Canyon Senior Center, City of Albuquerque,

Petitioners,

Vv.

CHURCH ON THE ROCK and PASTOR DON KIMBRO,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Keith A. Fournier Jay Alan Sekulow

John G. Stepanovich (Counsel of Record)

THE AMERICAN CENTER FOR James M. Henderson, Sr.

LAW AND JUSTICE THE AMERICAN CENTER FOR

1000 Regent University Dr. LAW AND JUSTICE

Virginia Beach, VA 23464 1000 Thomas Jefferson St.,

(804) 579-2489 N.W., Suite 304

Washington, DC 20007

Benjamin W. Bull (202) 337-2273

THE AMERICAN CENTER FOR

LAW AND JUSTICE Paul F. Becht

7819 E. Greenway Road BECHT LAW FIRM

Suite 6 7410 Montgomery, NE

Scottsdale, Arizona 85260 Albuquerque, NM 87109

(602) 596-0821 (505) 883-7311

Attorneys for Petitioners

i

QUESTION PRESENTED

Whether the First Amendment is violated by a city policy

that otherwise permits citizens to engage in expression at Senior

Centers about the Bible, Jesus Christ, and related matters, but

excludes such speech when it is presented from a religious point of

view?

il

PARTIES

The caption of the case contains the names of all parties.

There are no parent companies or nonwholly owned subsidiaries.

ill

TABLE OF CONTENTS

Ee eS 5 be bo eb a ke oo eee me i

EE ee ee S he Wate a ele bw kad ee wwe ii

Me PUNFERUREOEE Sec eee eee heen iv

UGRRMEEIEUE GE EUEELGAANDES 6c ccc rece ces 1

aE ree mn eae 11

I. THE CITY RAISES AN ISSUE THAT WAS NOT

PRESENTED OR PRESERVED BELOW, AND

IS NOT PROPERLY BEFORE THIS COURT.

THIS CASE DOES NOT PRESENT AN

IMPORTANT AND UNRESOLVED FEDERAL

rin ee re Eee 12

lf. THE DECISION BELOW COMPORTS WITH

THIS COURT’S DECISION IN TILTON V.

RICHARDSON, AND DOES NOT CONFLICT

gs Gs ae 15

III. THE CITY’S BAN ON ALL RELIGIOUS

EXPRESSION AT THE SENIOR CENTERS IS

VIOLATIVE OF THE FREE SPEECH CLAUSE

AND IS NOT REQUIRED BY _ THE

Bei Amaameamams CLAUSE. ....0 25 e eae 16

A. Free Speech Clause ....... a 6 16

B. Estaplisnmem Clause... . 0... ees 19

aks Aeneas See ee wwe bee 21

iv

TABLE OF AUTHORITIES

Cases

44 Liquormart, Inc. v. Rhode Island

Sie De. 5 UR EAR: BGGO USN bs se awe wn 14

Abercrombie v. City of Catoosa, Okla.

Fe Bre Tt fe || er ee ee 14

Board of Educ. of Westside Comm. Schools v.

Mergens

ge ie: 9 re wr ee ee ie 11, 13, 20

Boos v. Barry

Of Rg ere are ws oe er rar eee 3

Capitol Square Review and Advisory Board v.

Pinette

SISU.S.__, 115 S.Ct. 2440 (1995) ...... 11, 13, 20, 21

Cornelius v. NAACP Legal Defense and

Educational Fund, Inc.

2 & Be fs. Se ee area ar arg Gs Centre 17, 18

County of Allegheny v. ACLU Greater

Pittsburgh Chapter

Re Sa Ue CRD 8 ek Se kare Fas He x Res 20, 21

FCC v. League of Women Voters of

California

ee seu See Ce vals cde eS NAT Cea 14

Forsyth County, Ga. v. Nationalist Movement

Re be eer eae nee oar 3

Heffron v. ISKCON

oe Ses UR AENNOD » hoe S Bales Seon 19

Lamb's Chapel v. Center Moriches Union Free

School Dist.

as OO LOO 6 bbe he We Ae ne 3, 4, 13, 15, 17-20

Lemon v. Kurtzman

Gee Seas SU CRETE ins Vk cae Caco oe 13

Lynch v. Donnelly

OP She SUMO Nb oh oe eee eee eee 13

Perry Educ. Ass'n v. Perry Local Educators

Ass'n

pe SE Oe CA eo 8 0 oe CG eee 4, 17-19

Perry v. Sindermann

See Wa. SOR LEOEE oy Ss ok oh see Vie eee i4

Rosenberger v. University of Virginia

315 U.S. __,, 115 S.Ct. 2510 (1995) . . . 3, 4, 11, 13, 17-20

Texas v. Johnson

a Wea See RE Se bine View can be ee oe

Tilton v. Richardson

Gap Wis WE CROTES : 6. oon0 6 be Bele eee 5, 15

United States v. Eichman

Se Sas DOP CRUE 4k os kd Oe a eee a eee 3

United States v. Kokinda

Gee Weick. VOR an ke ab eke Obed Co 4

vi

Widmar v. Vincent

: Bie. Ae 2 a) | oe 3-5, 11, 13, 15, 16, 19, 20

Constitutional and Statutory Provisions

42 U.S.C. § 3027(a)(14)(A)TV)( 1988), Older

Re Bee oS sa sds oe ed OE ee Ee ea 6

U.S. Const., Supremacy Clause,

a SPR ere ee ween eae ge ey 15

No. 96-286

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

CiTy OF ALBUQUERQUE, and TONI MARTORELLI, in her

official capacity as Director of Family and Community

Services for the City of Albuquerque, and MARK SANCHEZ,

in his official capacity as Deputy Director of Family and

Community Service for the City of Albuquerque, and

KATHLEEN STARK, in her official capacity as Supervisor,

Bear Canyon Senior Center, City of Albuquerque,

Petitioners,

v.

CHURCH ON THE ROCK and PASTOR DON KIMBRO,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

STATEMENT OF THE CASE

1. The City of Albuquerque enforces the policy at

issue as a total ban on all religious expression by private citizens

on the premises of government-owned Senior Centers. The policy

allows expression at the facilities, including lectures and films

presented by private citizens, on any subject matter that is "of

2

interest to senior citizens," including expression on religion, the

Bible, and related matters. Expression on these topics is excluded,

however, when it is presented from a religious perspective. While

the policy facially bans "sectarian instruction" and "religious

worship,” in practice, City officials enforce it as a total ban on all

religious sentiments. See Pet. App. 78a (policy).

Under the policy, it is permissible for Don Kimbro, a

pastor at Church on the Rock and Senior Center member, to show

a film and express sentiments on the Bible and Jesus Christ from

a secular or skeptical perspective. The City prohibited his showing

the film JESUS, however, because the film presents Jesus from a

religious viewpoint. It is within this context that Kimbro and the

Church challenged the policy as unconstitutional viewpoint and

content-based discrimination violative of the First Amendment.

2. On March 24, 1994, Kimbro requested permission

to show a two-hour film entitled JESUS at one of the Centers. He

also requested permission to give away large print Bibles to those

who attended the film presentation. Aplt. App. at 103.' He

enclosed a copy of the film with his letter for the City to review.

Aplt. App. at 49.

After reviewing the film, the City denied Kimbro’s

application. The City stated that allowing the JESUS film to be

shown would violate City policy prohibiting "sectarian instruction"

and "religious worship" at the Centers. Aplt. App. at 105. The

City was also motivated by its concern that allowing the film to be

‘References to the Appellants’ Appendix, filed in the United

States Court of Appeals for the Tenth Circuit are indicated as

"Aplt. App.”.

3

shown would offend some of the Senior Center members.” Aplt.

App. at 923-24, 927.

On September 27, 1994, Kimbro filed his complaint against

the City, challenging the constitutionality of the policy, and seeking

injunctive and declaratory relief. Aplt. App. at 1. On October 3,

1994, Kimbro moved for a preliminary injunction against the City

on the grounds, inter alia, that the policy of excluding all religious

expression at the facilities was unconstitutional. The district court

heard evidence and argument in support of, and in Opposition to,

the constitutionality of the policy at hearings on December 5 and

16, 1994. With the consent of the parties, the court converted the

proceeding into cross motions for summary judgment. Aplt. App.

at 1417-24. At the conclusion of the December 16th hearing, the

district court rejected Kimbro’s claims and granted complete

summary judgment in favor of the City. Pet. App. 15a, 17a.

3. In a unanimous decision, the United States Court

of Appeals for the Tenth Circuit reversed. Pet. App. la-14a. The

Court relied on Rosenberger v. University of Virginia, 515 U.S.

__,» LIS S.Ct. 2510, 2516 (1995), Lamb’s Chapel v. Center

Moriches Union Free School Dist., 508 U.S. 384 (1993), Widmar

v. Vincent, 454 U.S. 263 (1981), and other decisions of this Court

in a straight forward application of the public forum doctrine.

Because the Centers had “been opened to the public for discussive

This alone renders the City’s censorship of the film

unconstitutional. Expression may not be restricted by the

government on the basis that some may find it offensive, since to

do so constitutes unconstitutional content-based regulation. Forsyth

Count; Ga. v. Nationalist Movement, 505 U.S. 123, 134 (1992);

United States v. Eichman, 496 U.S. 310, 317-18 (1990); Texas v.

Johnson, 491 U.S. 397, 411-12 (1989); Boos v. Barry, 485 U.S.

312, 321 (1988).

+

purposes [including] lectures and classes on a broad range of

subjects by both members and non-members” alike, the court of

appeals held the facilities to be designated public fora. Pet. App.

7a-8a. The court found that the forum was loosely restricted on the

basis of age, and that the “subject matter of presentations" was

broadly limited to “topics ‘of interest to senior citizens’." Pet.

App. at 8a. The court found that the City had “opened the doors

of its Senior Centers" to presentations about religion and the Bible,

and related topics. Pet. App. at 9a. The court found that the film

JESUS dealt with subject matter that was a permitted topic of

presentation at the Centers. Pet. App. at 9a. The court further

found that the film was excluded because its perspective

“advocat[ed] the adoption of the Christian faith,” rather than

presenting the topic from a “skeptical” or secular viewpoint. Pet.

App. at 9a. The court concluded that the policy was “properly

analyzed as a viewpoint-based restriction on speech." Pet. App. at

9a.

The court observed that "[v]iewpoint discrimination is ‘an

egregious form of content discrimination’ and “subject to strict

scrutiny,” citing Rosenberger, 115 S.Ct. at 2516, United States v.

Kokinda, 497 U.S. 720, 726-27 (1990), and Perry Educ. Ass'n v.

Perry Local Educators Ass'n, 460 U.S. 37, 46 (1983). Pet. App.

at 10a. The court then found that "to survive stfict scrutiny, the

City’s policy must be ‘narrowly drawn to effectuate a compelling

state interest’," citing Perry, 460 U.S. at 46. Pet. App. at 11a.

The court below then rejected the justifications in support

of the policy offered by the City. First, the court held that the

Establishment Clause did not justify or require the exclusion of the

film. Citing Rosenberger, 115 S.Ct. at 2520-25, Lamb's Chapel,

508 U.S. at 394-95, and Widmar, 454 U.S. at 270-75, the court

reasoned “that providing equal access to a designated public forum

for citizens engaging in religious expression and citizens engaging

5

in secular expression does not violate the Establishment Clause."

Pet. App. at lla. Therefore, the "restriction [was] not necessary

to serve [that] interest." Pet. App. at lla. Second, the court dealt

with the City’s argument that the Older Americans Act requires

exclusion of “sectarian worship" and "sectarian instruction" as a

condition for receiving federal funding. Pet. App. at 12a. The

court held that simply because the policy was facially designed to

“conform with federal statutory requirements . . . does not shelter

it from constitutional scrutiny." Pet. App. at 12a. The court held

that compliance with the "act does not justify this viewpoint-based

restriction on expression." Pet. App. at 12a. Third, the court

rejected the City’s justification that the policy was necessary to

protect senior citizens "‘vulnerable’ to ‘religious proselytizing and

coercion’." Pet. App. at 12a. The court found that senior citizens

are not, as a class, in need of “special insulation from invitations

to adopt a religious faith," especially when attendance "is purely

voluntary." Pet. App. at 13a. Finally, the court rejected the

City’s argument that Tilton v. Richardson, 403 U.S. 672 (1971),

supported exclusion of religious expression at the Centers. Pet.

App. at 13a. The court stressed that Tilton “concerned an

Establishment Clause challenge to statutory language similar to that

in the Older Americans Act." Pet. App. at 13a. The court

observed that Jilton was not a “free-speech challenge to the act”

and nothing in that case suggested otherwise. Pet. App. at 14a.

The court noted that the City’s argument under Tilton had already

been rejected by this Court in Widmar, 454 U.S. at 272 n.12. Pet.

App. at l4a.

4. On July 1, 1996, the court of appeals denied the

City’s motion for stay of the mandate pending filing of a petition

for writ of certiorari.

5. On July 18, 1996, Justice Breyer likewise denied

the City’s application to stay the mandate pending the filing and

6

disposition of a petition for a writ of certiorari.

6. This case does not involve a challenge to the Older

Americans Act, 42 U.S.C. § 3027(a)(14)(A)([V) (1988), nor does

it involve a challenge to the ability of the federal government to

condition the receipt of federal funds on compliance with the First

Amendment’s Establishment Clause. Indeed, contrary to the

suggestion of the instant petition, such challenges were not raised

below, and are not a part of the record of this case. Thus, the

purported question presented by Petitioners does not arise from the

record or decision below, and is improperly raised before this

Court.

7. The City has also misstated the fact record below.

The Albuquerque Senior Centers are multipurpose facilities that are

open to all members of the public who are 55 years of age or

older, and their spouses regardless of age. Aplt. App. at 48, 542,

861-62. Members and nonmembers alike are permitted on the

premises to lead classes, give lectures, and exhibit films. Aplt.

App. at 887. Nonmembers who teach classes need not be over 55

years of age. Aplt. App. at 887. Pastor Kimbro is over 55 years

of age and is a member of the Senior Centers. Aplt. App. at 206,

208. He would be eligible to exhibit a film or lead a class,

however, even if he were not a member. Aplt. App. at 887.

The only subject matter or topic limitation for classes,

lectures, or films at the Centers is that a topic should be “of

interest to senior citizens." Aplt. App. at 863, 885-89. The City

allows the presentation of lectures, classes, and films on the topic

of religion, the Bible, and even Jesus Christ. Aplt. App. at 337,

662, 837, 839. For instance, the Senior Centers have permitted the

following classes and lectures led by private citizens:

° Bible as Literature - "Study the Bible as literature and see

video tapes of Holy Lands." Aplt. App. at 337.

|

7

New Testament Bible Study - "This . . . class will cover

the Book of Mark... . A New Testament, any version,

will be needed for the class, although the New American

Standard Bible is preferred." Aplt. App. at 662.

Theosophy - "This is a discussion group that converses on

the subject of the philosophy of religions." Aplt. App. at

482.

Metaphysical Discussion Group - "{O]pen, honest and

creative sharing with a special focus on celebrating all the

different ways in which we see our world." Aplt. App. at

176.

Myths and Stories about the Millennium (presents theories

and myths from the Bible, and Greeks, and Romans,

"surrounding the end of the age")

How to Die Young at the Oldest Possible Age (teaches

elevating self-esteem)

El Marrano - History of the Crypto-Jew (history of Spanish

and Portuguese Jews forced to convert to Christianity)

The Near Death Experience (discusses how people

experiencing near-death have a renewed sense of hope)

Make Christmas Merry (teaches how to get through the

holidays without being “spiritually” and “emotionally”

spent)

Life Counseling (private professional counselor teaches

how to "cope")

8

Life Review Class (leader discusses “universal life themes

for deepening awareness of self")

M ing the S in Your Lif

Healing Thy Self (overcoming guilt and increasing

optimism)

Meditation and Dream Analysis (teaches meditation and

dream interpretation)

Positive Attitude Class ("Reverend Alan R. Stanley"

presents class on having positive attitude about life and

death)

r Pri lings: Ww l t rviv

ish i ’s W (learning how to handle

stress by focusing on "childhood traumas")

Ps logi Devel tobi h

(teaches how to “review and integrate the experiences of

life")

listic Nursi rvice (teaches relaxation and guided

imagery to prevent “anxiety, spiritual distress")

Gentle Yoga (teaches managing stress by using mind and

body)

Tai Chi Chih (teaches "stress reduction" and "heightened

spiritual awareness")

Passover Commemoration (presentation commemorating

the Passover story)

9)

. Meditation (Listening to Inner Self) (teaches meditation to

quiet “anxieties, concerns, worries")

* rid

. Ceramics

° China Painting

° Conversational Chinese

° Creative Writing

° Crocheting

° Legal Clinic (private attorney answers questions)

° Lip Reading

° Literary Discussion

° Bingo

° Square Dancin

e Aquatic Aerobics

* Afternoon at the Movies (films are shown)

See Aplt. App. at 334-716 (Senior Center Activity Catalogs). The

City permits the exhibition of films by outside nonmembers on a

regular basis. Aplt. App. at 449, 452, 527, 863, 907. Also, those

who lecture are permitted to distribute literature. Aplt. App. 176,

901.

10

As noted above, the only relevant topical, content or

subject-matter restriction with respect to expression at the Centers

is contained in the policy held unconstitutional by the court of

appeals.’ Facially, the City’s written policy prohibits “sectarian

instruction" and "religious worship." By practice, the City

enforces the policy to prohibit the presentation of permitted topics

from a "religious" point of view. Aplt. App. at 98, 837-39, 877-

83, 900-01, 923-25, 927, 929-30. So, for example, a lecture on

the Bible must present it as history or literature, and not as

Scripture, Aplt. App. at 837, 839, and a presentation about Jesus

must present him strictly as a historical figure, Apit. App. at 837.

The City enforces its policy against all citizens at the

Senior Centers, Aplt. App. at 875, not merely against lecturers or

speakers in the presentation rooms:

° Because the City views such explanations as “sectarian

instruction,” Aplt. App. at 875, the City employees have

warned citizens to stop discussing their faith in

conversation while on the premises of the Centers. Aplt.

App. at 875-77.

° Because the City views such conduct as “religious

worship[,]" the City employees have admonished citizens

not to say an audible "grace over [a] meal." Apit. App. at

880.

. The City interprets its policy as a ban on Catholics holding

prayer beads and saying audible Rosaries aloud while at the

Centers. Aplt. App. at 881.

*There are some restrictions, not at issue in this litigation, on

political candidates and on "advertising for profit.” Aplt. App. at

125, 140.

11

° Because the City views such conduct as “religious

worship,” the City bans citizens from reading the Bible

aloud to other persons on the premises. Aplt. App. at 881.

° Although the City does not ban listening to secular music

at the Centers, it does ban listening to the "Sermon on the

Mount" when the listener’s "viewpoint" is religious. Aplt.

App. at 930.

The record below amply demonstrates, as these excerpts indicate,

that the City interprets and enforces its policy as a total ban on

private "religious" expression at the Senior Centers.

ARGUMENT

The court of appeals correctly applied principles that are

firmly established by this Court’s cases. The decision below does

not, as erroneously contended by the City, "raise important

questions of federal constitutional law as to the power of Congress

to enforce the Establishment Clause as a condition upon the

expenditure of federal funds." Pet. at 8. Indeed, this has never

been an issue in this case. Further review is, therefore,

unwarranted.

The court of appeals decision represents a straight forward

application of principles that are well settled under this Court’s

decisions in Rosenberger, 115 S.Ct. 2510, Capitol Square Review

and Advisory Board v. Pinette, 515 U.S. ___, 115 S.Ct. 2440

(1995), Lamb's Chapel, 508 U.S. 384, Board of Educ. of Westside

Comm. Schools v. Mergens, 496 U.S. 226 (1990), Widmar, 454

U.S. 263, and numerous other cases. The City, however, attempts

to manufacture a new issue that was not raised below, and does

not, in fact, exist in this case. P-urther, in attempting to create an

12

issue for review where there is none, the City has badly misstated

the holding and analysis of the decision below.

I. THE CITY RAISES AN ISSUE THAT WAS NOT

PRESENTED OR PRESERVED BELOW, AND IS

NOT PROPERLY BEFORE THIS COURT. THIS

CASE DOES NOT PRESENT AN IMPORTANT AND

UNRESOLVED FEDERAL QUESTION.

This case involves a straight forward challenge to a City

policy banning the religious expression of all citizens on the

premises of Albuquerque Senior Centers. It does not involve a

challenge to the federal Older Americans Act. To be sure, in the

court below, the City attempted to justify the policy by arguing that

the Act required the City to exclude religious speech as a condition

on the receipt of federal funding. The Respondents have never

contended, however, that the federal government cannot condition

the receipt of funding upon compliance with the Establishment

Clause. If the Act’s prohibition on "sectarian instruction" and

“religious worship" is construed as coextensive with the

requirements of the Establishment Clause, then it may well pass

muster. But such a construction of the City’s policy could not save

it because the policy restricts expression well beyond the

requirements of the Establishment Clause.

A total ban on the religious expression of citizens under the

policy is neither mandated by the Establishment Clause or tolerated

by the Free Speech Clause. There is simply no authority for the

proposition that the Establishment Clause requires the censorship

of ail religious expression of citizens at any government facility, let

alone Senior Centers. On the contrary, this Court has been quite

clear that, "there is a crucial difference between government speech

endorsing religion, which the Establishment Clause forbids, and

private speech endorsing religion, which the Free Speech and Free

13

Exercise Clauses protect." Mergens, 496 U.S. at 250. Similarly

see, Rosenberger, 115 S.Ct. at 2522; Pinette, 115 S.Ct. at 2448.

This Court has also been quite clear that providing private

citizens equal access for religious expression in a designated public

forum, or even in a nonpublic forum, does not violate the

Establishment Clause, as claimed by the City. See Rosenberger,

115 S.Ct. at 2521-23; Lamb’s Chapel, 508 U.S. at 395; Widmar,

454 U.S. at 269, 273-75. Contrary to the City’s position, the

government is not held to endorse under the Establishment Clause

whatever speech it permits on a nondiscriminatory basis. Pinette,

115 S.Ct. at 2449; Lamb’s Chapel, 508 U.S. at 394-95; Mergens,

496 U.S. at 250; Widmar, 454 U.S. at 271-72. Indeed, because

Establishment Clause analysis is necessarily fact dependent, this

Court has rejected such "rigid, absolutist" calls for bans on all

religious expression. Lynch v. Donnelly, 465 U.S. 668, 678-79

(1984); and see Lemon v. Kurtzman, 403 U.S. 602, 614 (1971)

(Establishment Clause analysis is necessarily fact dependent).

In any event, the City is obligated to comply with the

requirements of the Establishment Clause whether it mimics the

language in the Older Americans Act in its policy or not. But as

discussed above, compliance would not permit the exclusion of all

expression of religious perspectives by citizens on the premises of

the Senior Centers. The Establishment Clause does not require

such stridency and the Free Speech Clause does not permit it.

Rosenberger, 115 S.Ct. 2510; Lamb’s Chapel, 508 U.S. 384.

The City’s suggestion that the phantom loss of federal

funding justifies the total ban on religious speech is not

supportable. First, there is nothing in the record to support the

City’s present contention that compliance with its constitutional

obligations, as mandated by the Free Speech Clause and the court

of appeals’ decision, will result in the loss of federal funding to

14

which it is otherwise entitled. Second, the notion that the federal

government will require the City to continue its unconstitutional

policy and disobey the mandate of the court below, as a condition

for the receipt of federal funds, is bizarre and constitutionally

indefensible. The government cannot condition the receipt of a

benefit upon the recipient’s infringement of constitutionally

protected rights. Indeed, the City seems to argue that it must

commit a constitutional wrong to receive federal funding. This

turns the guarantees of the Constitution on their head.

The faux issue raised in the Petition -- if it actually exists

at all -- is at best a potential dispute between the City and the

federal government. In this case, it is no defense to a

constitutional violation for one level of government to argue that

another level of government may withhold funds from it unless it

engages in a constitutional deprivation. The court of appeals

correctly analyzed this point.

The fact that the City’s policy is designed to conform with

federal statutory requirements, however, does not shelter

it from constitutional scrutiny. A city or state’s desire for

“See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. __,

116 S.Ct. 1495, 1513 (1996) ("Even though government is under

no obligation to provide . . . a particular benefit, it does not follow

that conferral of the benefit may be conditioned on the surrender

of a constitutional right"); Perry v. Sindermann, 408 U.S. 593, 597

(1972) (Government "may not deny a benefit to a person on a basis

that infringes his constitutionally protected interests -- especially his

interest in freedom of speech"); similarly see FCC v. League of

Women Voters of California, 468 U.S. 364, 384-85 (1984);

Abercrombie v. City of Catoosa, Okla. , 896 F.2d 1228, 1233 (10th

Cir. 1990).

15

federal funds is not a compelling government interest {that

will] justify this viewpoint-based restriction on expression.

Pet. App. at 12a. Finally, whatever can be said of the Older

Americas Act, the First Amendment trumps any statute allegedly

requiring a city to engage in unconstitutional deprivations of free

speech. See U.S. Const., Supremacy Clause, Art. VI cl. 2. See,

¢.g., Widmar, 454 U.S. at 276 (Court rejected the argument that

government body may deny equal access in the name of an alleged

compelling interest in following a state law mandate for "greater

separation of church and state"); Lamb’s Chapel, 508 U.S. at 386-

87 (Court rejected the argument that it was required to adhere to

New York’s highest appellate court and the opinion of the Attorney

General of New York).

IT. THE DECISION BELOW COMPORTS WITH THIS

COURT’S DECISION IN TILTON V. RICHARDSON,

AND DOES NOT CONFLICT WITH THAT

DECISION.

The City also erroneously argues that the court of appeals

decision does not comport with this Court’s decision in Tilton v.

Richardson, 403 U.S. 672 (1971). Pet. at 10-11. The court below

properly rejected the City’s argument that its policy was justified

under Tilton:

Tilton . . . primarily concerned an Establishment Clause

challenge to statutory language similar to that in the Older

Americans Act... . In that case, the Court considered a

federal grant and loan program for the construction of

academic facilities at institutions of higher learning. The

terms of the act excluded facilities used for sectarian

instruction or religious worship. The Court held, however,

that a provision in the act that effectively allowed facilities

SS

16

to be converted entirely to religious purposes after twenty

years violated the Establishment Clause. [Tilton] at 682-

84, 91 S.Ct. at 2097-99. At no point did the Court address

any free-speech challenge to the act, and nothing in the

opinion implied that its decision upholding the remainder

of the act against an Establishment Clause challenge could

be extended to protect similar statutory language against a

free-speech challenge.

Pet. App. at 13a-14a (emphasis added). In Widmar, this Court

considered a similar argument invoking 7i/ton and rejected it.

[Njothing in Tilton suggested a limitation on the State’s

capacity to maintain forums equally open to religious and

other discussions. Cases before and after Tilton have

acknowledged the right of religious speakers to use public

forums on equal terms with others.

Widmar, 454 U.S. at 272 n.12. Thus, the City’s argument under

Tilton is entirely meritless.

Il, THE CITY’S BAN ON ALL RELIGIOUS

EXPRESSION AT THE SENIOR CENTERS IS

VIOLATIVE OF THE FREE SPEECH CLAUSE AND

IS NOT REQUIRED BY THE ESTABLISHMENT

CLAUSE.

A. Free Speech Clause

The City erroneously argues that the total exclusion of

religious expression, in the context of this case, is permissible

under the Free Speech Clause and required by the Establishment

Clause. Pet. at 20-25. This argument is meritless. Based on the

abundant record evidence, the court of appeals held that the

ie

17

Albuquerque Senior Centers are designated public forums. Pet.

App. at 7a-8a. The court below stated, "[d]esignated public forums

are those ‘created by government designation of a place . . . for

use by the public at large for assembly and speech, for use by

certain speakers, or for the discussion of certain subjects’." Pet.

App. at 7a (quoting this Court’s decision in Cornelius v. NAACP

Legal Defense and Educativnal Fund, Inc., 473 U.S. 788, 802

(1985)). The City opened a forum for use by speakers on the

topics of religion, the Bible, and related topics. Pet. App. at 8a.

Pastor Kimbro is within the class of persons eligible to make

presentations at the Centers. Most significantly, the subject matter

of the film that Pastor Kimbro desired to exhibit is within the

topics and subject matter permitted for presentations at the Senior

Centers. As the court below found, "[t]he film Jesus dealt with

subject matter similar to that which would be included in a class on

the Bible as literature." Pet. App. at 9a.

The City excluded the film, however, because it

ran afoul of City policy . . . by advocating the adoption of

the Christian faith. In contrast, a film about Jesus’ life that

ended on a skeptical note and urged agnosticism or atheism

would not have contravened the City’s policy.

Pet. App. at 9a. The court below correctly concluded that the

"*prohibited perspective, not the subject matter’ triggered the

decision to ban the private expression." Pet. App. at 9a (citing

Rosenberger, 115 S.Ct. at 2517).

The propriety of the decision below rests on the axiom that

it is unconstitutional to exclude private speech from a designated

public forum because of its viewpoint. Rosenberger, 115 S.Ct. at

2516; Lamb’s Chapel, 508 U.S. at 392-94; Perry, 460 U.S. at 46.

As the court below stated,

&

{ajny prohibition of sectarian instruction where other

instruction is permitted is inherently non-neutral with

respect to viewpoint. . . . [A] restriction prohibiting

sectarian instruction intrinsically favors secularism at the

expense of religion.

Pet. App. at 9a. With that consideration in mind, the court below

correctly concluded that the “City’s policy constitutes viewpoint

discrimination.” Pet. App. at 9a.

This Court in Rosenberger bluntly stated “that

discriminating against religious speech was discriminating on the

basis of viewpoint." 115 S.Ct. at 2518. Moreover, in Lamb's

Chapel, this Court had no difficulty discerning the viewpoint

discrimination embodied in a ban on presenting a religious film

series discussing issues for the contemporary American family.

508 U.S. at 392-94. it is simply impossible for the City’s policy

to pass constitutional muster under Rosenberger and Lamb's

Chapel. Here, as in Lamb’s Chapel, the “subject matter [of the

film} is not one that the [Senior Center] has placed off limits to any

and all speakers." /d. at 393. As in Lamb's Chapel, the

“application to exhibit the particular film . . . was [denied because]

the presentation would have been from a religious perspective.”

Id. at 393-94. “[DJenial on that basis was plainly invalid." /d. at

394.

Even assuming, arguendo, that the Senior Centers are

nonpublic forums -- as the City contends - Kimbro must still

prevail. In a nonpublic forum, the City’s regulation of expression

must still be viewpoint neutral. Lamb's Chapel, 508 U.S. at 392-

93; Cornelius, 474 U.S. at 806; Perry, 460 U.S. at 46. Thus,

assuming for purposes of discussion that the Senior Centers are

nonpublic forums, the exclu: ‘on of the film because of its religious

perspective constitutes unconstitutional viewpoint discrimination.

19

Id.; and see Rosenberger, 115 S.Ct. at 2516 ("The government

must abstain from regulating speech when the specific motivating

ideology or the opinion or perspective of the speaker is the

rationale for the restriction").

This Court has flatly rejected the City’s suggestion that

“proselytizing” is entitled tc less than full constitutional protection.

Widmar, 454 U.S. at 269 n.6; Heffron v. ISKCON, 452 U.S. 640

(1988). This Court has also rejected any attempt to carve out

categories of religious expression for lesser degrees of First

Amendment protection. Widmar, 454 U.S. at 269 n.6; and

Rosenberger, 115 S.Ct. at 2524.

This Court has also rejected the City’s argument that the

policy is justified because the City bans all "sectarian proselytizing

or worship,” and has never allowed any religious perspectives on

its premises. Pet. at 21. See Rosenberger, 115 S.Ct. at 2517 ("It

is as Objectionable to exclude a theistic and an atheistic perspective

on the debate as it is to exclude one, the other, or yet another

political, economic, or social viewpoint"); Lamb’s Chapel, 508

U.S. at 393-94 (total ban on all religious expression constitutes

viewpoint discrimination).

B. Establishment Clause

As the court below correctly observed, this Court "has

made it abundantly clear that providing equal access to a designated

public forum for citizens engaging in religious expression and

citizens engaging in secular expression does not violate the

Esta "ishment Clause." Pet. App. at lla (citing Rosenberger, 115

S.Ct. at 2520-25; Lamb’s Chapel, 508 U.S. at 394-96; Widmar,

454 U.S. at 270-75). This constitutional axiom holds true even if

the forum is characterized as nonpublic. Lamb’s Chapel, 508 U.S.

at 394-96.

20

The City’s argument that the Establishment Clause is

implicated because some persons might perceive that the City

“sponsors” the “religious” perspective of the film is meritless. Pet.

at 21. First, the City has never even suggested that it "sponsors"

the viewpoint of all of the classes, lectures, and films that are

presented at the facilities. Here, for the first and only time, the

City makes this claim. Second, as this Court stated in Lamb’s

Chapel, where a facility has “repeatedly been used by a wide

variety of private organizations[,]" there is "no realistic danger that

the community could think that the [City] was endorsing religion

or any particular creed, and any benefit to religion or to the

Church would have been no more than incidental." 508 U.S. at

395; similarly see Rosenberger, 115 S.Ct. at 2523-24. The

government cannot be held to “endorse everything [it] fail[s] to

censor." Mergens, 496 U.S. at 250; similarly see Rosenberger,

115 S.Ct. at 2522. Third, in Pinette, 115 S.Ct. at 2446-50, this

Court rejected an argument substantially similar to that raised by

the City. This Court observed that allowing equal access may

result in some persons misperceiving the access as preferential

treatment. This does not, however, create an Establishment Clause

violation. “Private religious speech cannot be subject to veto by

those who see favoritism where there is none." /d. at 2449. The

City may cure whatever misperception it fears may result from

discontinuing its practice of viewpoint discrimination against

religion by publishing a disclaimer along with the announcements

of events. See, e.g., Pinette, 115 S.Ct. at 2450; Mergens, 496

U.S. at 251; Widmar, 454 U.S. at 274.

The City also cites County of Allegheny v. ACLU Greater

Pittsburgh Chapter, 492 U.S. 573 (1989) in support of its

Establishment Clause argument. Pet. at 20. The same Allegheny

argument was raised and rejected in Pinette. Unlike the Senior

Centers, the staircase in Allegheny did not involve a forum where

expression routinely occurred. Allegheny, 492 U.S. at 600 n.5.

21

Most significantly, "if the Staircase were available to all on the

same terms, ‘the presence of the creche in that location for over six

weeks would then not serve to associate the government with the

creche’." Pinette, 115 §.Ct. at 2447 (quoting Allegheny, 492 U.S.

at 599-600). At bottom, Allegheny “neither holds nor even

remotely assumes that the government's neutral treatment of private

religious expression can be unconstitutional." /d.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted.

Keith A. Fournier Jay Alan Sekulow

John G. Stepanovich (Counsel of Record)

THE AMERICAN CENTER FOR James M. Henderson, Sr.

LAW AND JUSTICE THE AMERICAN CENTER FoR

1000 Regent University Dr. LAW AND JUSTICE

Virginia Beach, VA 23464 1000 Thomas Jefferson St..

(804) 579-2489 N.W., Suite 304

Washington, DC 20007

Benjamin W. Bull (202) 337-2273

THE AMERICAN CENTER FoR

LAW AND JUSTICE Paul F. Becht

7819 E. Greenway Road BECHT LAW FiRM

Suite 6 7410 Montgomery, NE

Scottsdale, Arizona 85260 Albuquerque, NM 87109

(602) 596-0821 (505) 883-7311

Attorneys for Respondents

September 18, 1996