Glover

462 F.3d 1194 FAITH CENTER CHURCH EVANGELISTIC MINISTRIES, a California non-profit religious corporation; Hattie Hopkins, an individual, Plaintiffs-Appellees, v. Federal D. GLOVER, member and Chair of the Contra Costa County Board of Supervisors; Mark DeSaulnier; John M. Gioia; Millie Greenberg, members of the Contra Costa County Board of Supervisors; John W. Sweeten; Anne Cain, Contra Costa County Librarian; Patty Chan, Senior Branch Librarian for the Antioch Branch of the Contra Costa County Public Library; Laura O'Donahue, Administrative Deputy Director for the Antioch Branch of the Contra Costa County Public Library; Gayle B. Uilkema, Defendants-Appellants. No. 05-16132. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 17, 2006. Filed September 20, 2006. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Silvano B. Marchesi, Kelly M. Flanagan, and Danielle R. Merida, County Counsel, Martinez, CA; Debra S. Belaga and Colleen M. Kennedy, O'Melveny & Myers LLP, San Francisco, CA, for the appellants. Benjamin W. Bull, Gary S. McCaleb, and Jordan W. Lorence, Alliance Defense Fund, Scottsdale, AZ; Elizabeth A. Murray, Alliance Defense Fund,…

This appeal from the grant of a preliminary injunction involves an evangelical Christian church seeking access to a public library meeting room to conduct, among other activities, religious worship services. We are called upon to navigate between two equally important interests: the church’s right to access a government building that is open to other groups, and the government’s right to preserve its property for its intended uses. We conclude that the district court erred when it found that the church was likely to succeed on the merits of its First Amendment claim and therefore abused its discretion in granting preliminary injunctive relief. We have jurisdiction under 28 U.S.C. § 1292 , and we reverse in part and remand.

I.

The relevant facts are not disputed. Contra Costa County (“County”) makes available to the public its public library meeting rooms during operating hours. The County’s goal in making these meeting rooms available is “to encourage the use of library meeting rooms for educational, cultural and community related meetings, programs and activities.” Pursuant to the County’s library meeting room policy, “[n]on-profit and civic organizations, for-profit…

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. Sch., 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…

dissenting:

The “Religious Use” exclusion is impermissible viewpoint discrimination because Contra Costa County (the “County”) opened its public meeting room at the Antioch Library to the community in order “to encourage [its use] for educational, cultural and community related meetings, programs and activities.” 1 Notwithstand *1217 ing the broad and inclusive policy it approved, the County has unlawfully excluded certain members of the community from engaging in activities that fall squarely within the policy’s scope by examining the way an applicant’s viewpoints are expressed. Political organizations like the local Democratic Party are admitted. Religious groups are not.

The County draws an arbitrary line in the sand, arguing that it has the right to decide what constitutes a religious service while failing to set forth specific guidelines defining the term. It contends that the Establishment Clause of the First Amendment requires County officials to exclude those who wish to engage in worship behind the closed doors of its library meeting rooms. My colleagues in the majority accept the County’s skewed view of the First Amendment by upholding a policy which on its face and as…