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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1338%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 949

## Text

n> | Supreme Court, U.S.
~~ awe
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1338%3A2. Public record. Not legal advice.