GENTALA
Establishment Clause of the First Amendment.March 30, 2001En
BancNo. 9717062v2
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GENTALA v CITY OF TUCSON-No. 9717062 - 04/20/00-FCP
GENTALA v THE CITY OF TUCSON-No. 9717062v2 - 03/30/2001-FCP
GENTALA v THE CITY OF TUCSON-No. 9717062v2 - 03/30/2001-FCP
GENTALA v CITY OF TUCSON-No. 9717062p - 01/08/2002-FCP
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA E. GENTALA and
ROBERT A. GENTALA,
Nos. 97-17062
Plaintiffs-Appellants-
97-17069
Cross-Appellees,
D.C. No.
v. CV-97-00327-FRZ
THE CITY OF TUCSON,
OPINION
Defendant-Appellee-
Cross-Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Argued and Submitted En Banc
September 19, 2000--San Francisco, California
Filed March 30, 2001
Before: Mary M. Schroeder, Chief Judge,
Ferdinand F. Fernandez, Thomas G. Nelson,
Andrew J. Kleinfeld, Barry G. Silverman, Susan P. Graber,
M. Margaret McKeown, Kim McLane Wardlaw,
William A. Fletcher, Ronald M. Gould, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Dissent by Judge Fernandez;
Dissent by Judge Kleinfeld
3999
COUNSEL
Kevin H. Theriot, Lawrenceville, Georgia, for the plaintiffs-
appellants-cross-appellees.
Merle Turchik, Deputy City Attorney, Tucson, Arizona, for
the defendant-appellee-cross-appellant.
_________________________________________________________________
OPINION
BERZON, Circuit Judge:
The pivotal question in this case is whether a city may,
using tax funds and public employees, provide stage lighting,
sound, and other special-event services for a sectarian reli-
gious organization's prayer service held in the bandshell of a
public park. The City of Tucson believed that to do so would
violate the Establishment Clause of the First Amendment. For
that reason, although Tucson, through its Civic Events Fund
("Fund"), does provide such support to certain events held in
public parks, Tucson declined the National Day of Prayer
Committee's request that it provide the equipment and ser-
vices for its National Day of Prayer gathering. We agree with
Tucson that although the Establishment Clause remains a
"blurred, indistinct and variable barrier" to government sup-
4004
port for religious activity, Lemon v. Kurtzman , 403 U.S. 602,
614 (1971), "the circumstances of [the] particular relation-
ship," id., between Tucson and recipients of Civic Events
Fund support is such that Tucson was correct in concluding
that the requested funding would have fallen on the Establish-
ment Clause side of that "serpentine" wall. McCollum v.
Board of Educ., 333 U.S. 203, 238 (1948) (Jackson, J., con-
curring). Tucson's decision to refuse Civic Events Fund sup-
port to the prayer service's organizers therefore did not run
afoul of another First Amendment proscription, against
abridging freedom of speech.
Background
I. The Tucson National Day of Prayer Gathering
The Tucson National Day of Prayer Committee ("Prayer
Committee") is an organization that, according to its funding
application to the City, requires its members to "pledge [a]
specific religious belief," namely, Christian, and terminates
the membership of any member who does not do so. 1 In the
spring of 1997, the Prayer Committee organized a National
Day of Prayer gathering described in that application as "an
_________________________________________________________________
1 It is worth noting at the outset that this case does not concern the con-
stitutionality of the Congressionally-established National Day of Prayer.
Congress first proclaimed such an annual "day " in 1952, as it has issued
innumerable other resolutions proclaiming national "days." See generally
36 U.S.C. SS 101-143. It does not appear that there is any federal govern-
ment funding or support for any National Day of Prayer events; the
National Day of Prayer Task Force that promotes participation in the event
is a private, nonprofit organization. Nor is the National Day of Prayer in
any respect sectarian (although its very point is to favor religion over non-
religion). The original congressional resolution, Pub. L. No. 82-324
(1952), the 1988 amendment fixing the first Thursday in May as the
National Day of Prayer, Pub. L. No. 100-307 (1988), codified at 36 U.S.C.
S 119, and the Task Force all stress that the Day is meant as an opportu-
nity for all Americans who wish to do so to pray according to their own
faith, not to promote any particular religion or form of religious obser-
vance.
4005
annual gathering of Tucson Christians." As planned and as
carried out, the event, open to the public, involved "a time of
prayer and worship" led by "[p]astors from nine different
churches," and two choirs. More than 500 area church congre-
gations were invited to participate in prayers "for local, state
and national issues." Contributions were collected from
attendees for the purpose of paying for this event and future
similar events.
The Prayer Committee chose to hold its National Day of
Prayer service in and around a bandshell in Tucson's Reid
Park. The organizers applied for and received a permit from
the City to use the bandshell, and the event went forward as
planned. Tucson in no way prevented the Prayer Committee
from holding its prayer service in Reid Park nor interfered
with its doing so, instead allowing the Prayer Committee's
organizers and members to use the park, as other citizens may
do, "for purposes of assembly, communicating thoughts
between citizens, and discussing public questions." Hague v.
Congress of Indus. Orgs., 307 U.S. 496, 515 (1939).2
The Prayer Day's organizers, including the appellants here,
Patricia and Robert Gentala, were not seeking, however, sim-
ply to use the park for their event. They also wanted the City
to cover the costs of city-supplied lighting and audio systems.
The Prayer Committee applied for free use of $340 worth of
such equipment and related services for which the City ordi-
narily charges a fee, observing that "without help, we will
have [an] inadequate stage and sound package, as previous
years did."
_________________________________________________________________
2 From the earliest days of the public forum doctrine, it has been under-
stood that traditional public forums like the public parks, streets, and side-
walks are open not only to secular expression but to religious expression
as well. See, e.g., Schneider v. State , 308 U.S. 147, 160 (1939); Jamison
v. Texas, 318 U.S. 413 (1943); Martin v. City of Struthers, 319 U.S. 141,
150 (1943) (Murphy, J., concurring).
4006
II. The Tucson Civic Events Fund
The City does fund such equipment and services for some
private events held in the City's parks, through a fund denom-
inated the "Civic Events Fund." Tucson, however, refused the
Prayer Committee's request for support, on the basis of an
established policy precluding funding of events directly sup-
porting religious organizations. The reason for the policy, as
Tucson notified Patricia Gentala in denying her funding
request and has consistently maintained in this litigation, is to
avoid Establishment Clause violations.3
Modern Establishment Clause doctrine is a species of con-
stitutional inquiry which, as we shall develop as we go on,
abjures absolutist doctrines and emphasizes contextual analy-
sis instead, and in which the devil is, consequently, emphati-
cally in the details. We therefore focus here on the features of
Tucson's Civic Events Fund program with, perhaps, unusual
specificity.
Tucson charges small fees ($75) for use of bandshells in
city parks, but that general fee is not at issue in this case.
Additionally, Tucson will provide, for specified fees, certain
equipment and services for use at public facilities by any
"civic, social, religious, charitable, commercial or other
users." The Prayer Committee is therefore eligible to use the
available equipment as long as it pays the applicable fee.
The available rental equipment includes, for example, dis-
play booths, portable stages, bleachers, portable public
address systems, microphones, speakers, extension cords,
automated refuse containers, lighting systems and serving
tables. For audio and lighting equipment used at the bandshell
in Reid Park, the City requires that its staff operate the equip-
_________________________________________________________________
3 For reasons that appear later, the Establishment Clause issue turns out
to be dispositive, so we concentrate here upon the facts pertinent to that
issue.
4007
ment. The rental fees charged for the use of that equipment
therefore include labor charges, and City employees operate
the equipment during the event. Ordinarily, an event's orga-
nizers pay the necessary fees to the pertinent city department,
which, for lighting and audio equipment, is the Parks and
Recreation Department.
The City has determined that, aside from allowing the pub-
lic to use the parks, facilities such as bandshells, and city-
owned equipment, the City will "support and encourage" cer-
tain "Civic Events." The kinds of events that the City wishes
affirmatively to support include those that: "celebrate and
commemorate the historical, cultural and ethnic heritage of
the City and the nation, or increase the community's knowl-
edge and understanding of critical issues . . .[;] generate
broad community appeal and participation[;] instill civic pride
in the City, state, or nation[;] contribute to tourism[;] or are
identified as unique community events."
The City will recognize as a Civic Event only events spon-
sored by non-profit organizations or "individuals conducting
the events on a non-profit basis," that is, "with fund-raising
proceeds used for a community benefit." This limitation
means that, whether or not they meet the substantive criteria
for Civic Event designation, the City does not "support and
encourage" corporate picnics, commercial concerts, or private
birthday or anniversary celebrations in city parks (although
the City does, as we understand the record, permit organizers
of such events to use city-owned equipment and personnel if
they pay the required fees).4 Also excluded from Civic Event
designation and support are events sponsored by organiza-
_________________________________________________________________
4 The record does not contain any information concerning the total num-
ber of park event permits approved for any relevant year or the total num-
ber of park events whose organizers paid fees to use city-supplied
equipment or personnel. It is therefore not possible on this record to deter-
mine the percentage of all the group events held in the parks that the City
supported through the Fund.
4008
tions that already receive city funding, whether directly or
through rent waivers for use of city property. Finally, and crit-
ically here, among the events that "may [not ] be considered
for City support through the Civic Event process " are "events
held in direct support of religious organizations."
As part of its support and encouragement of Civic Events,
Tucson maintains a Civic Events Fund, consisting of moneys
appropriated from its general coffers and derived from tax
revenue, among other sources. Organizers of eligible events
may apply for payment from the Fund of any fees incurred for
use of city equipment or services. When such financial sup-
port is approved, however, the City (with limited exceptions)
does not provide any money directly to the event's sponsors.
The city department that would ordinarily bill the event's
sponsors instead bills and receives payment from the Fund. Of
course, both the Fund account and the departmental account
are city accounts. To implement its subsidy program, there-
fore, the City simply transfers on its books the amount of any
fees from the Fund to the appropriate department, as "a bud-
getary means of detailing the costs City departments incur
providing in-kind support to Civic Events."
Organizations receiving Fund support are required to:
maintain financial records concerning the event and, on
request, "provide City staff prompt access to such financial
records and any additional financial information about the
sponsoring organization"; obtain liability insurance for the
event;5 and coordinate the planning of the event with a city
Civic Event Coordinator. Additionally, to receive Civic Event
Fund support, event organizers must promise to publicize the
_________________________________________________________________
5 The City's risk manager explained that the amount of insurance
required is preset for each kind of public facility; that, if the sponsor can-
not obtain the required amount, the risk manager can decrease the required
coverage one step, but does so no more than twice a year; that the risk
classifications do not take into account the nature of the event or the iden-
tity of the sponsors; and that, to his knowledge, no event was ever cancel-
led for lack of insurance.
4009
City's contribution of services in their event advertising and
in an announcement made during the event.
In the 1996-97 and 1997-98 fiscal years, the City appropri-
ated $170,760 from its General Fund to the Civic Events
Fund. A subcommittee of the City Council made decisions on
applications for support of less of than $1,500; the Mayor and
the full Council ruled on larger requests.
The Fund application and a document entitled "Civic Event
Fund Policy Statement and Evaluation Criteria" spell out the
criteria for funding in great detail. Among those criteria, in
addition to the substantive ones summarized above, are: the
need for support, including whether the sponsoring organiza-
tion can pay some or all of the fees itself and whether it has
explored other sources of support; whether the funding
request is a first-time request or not ("The Mayor and Council
believe[ ] that events should eventually become self-reliant
. . . . To encourage events to become self-reliant, City support
provided in subsequent years may be gradually reduced.");
and whether the event "generates broad community appeal
and participation," although "special consideration will . . . be
given to small first-time events conducted by organizations
with limited resources."
Although, as the detailed criteria summarized above indi-
cate, these funding decisions are discretionary, in the only
year for which there is complete information in the record
there were sufficient funds available that most non-profit
groups sponsoring eligible events received funding if they
asked for it. In that single fiscal year, 1995, 23 events out of
26 that met the threshold criteria were funded; the Humane
Society-sponsored Fun Day in the Park, the Sister Cities Fund
Raiser, and the Casa Car Show were not funded, for reasons
that do not appear in the record.
The City has in the past implemented the exclusion for
events directly supporting religious organizations by refusing
4010
to pay fees incurred by fundraisers for area religious schools
and churches, although the events themselves were not uni-
formly religious in character.6 At the same time, the Fund sup-
ported other events sponsored by religiously-affiliated
organizations when the events did not directly benefit the
groups themselves,7 and events with religious themes spon-
sored by secular organizations. For example, in 1993, the
Fund supported a Las Posadas pageant depicting theatrically
events surrounding the birth of Jesus. The Las Posadas event
was sponsored not by a religious group, however, but by the
Tucson Festival Society and a local public school.
III. The Litigation
Two weeks before the Prayer Day event, Patricia Gentala,
chair of the Prayer Committee, applied for $340 in support
from the Fund for lighting and sound equipment and services.
On the required application form, she identified the event as
coming within the "Historical" category, enclosed a detailed
description of the event, summarized above, and noted that
there would be a "[f]ree will offer[ ]ing taken at close of pro-
gram," with any extra money from that collection to be
applied to the following year's event.
The Civic Events subcommittee denied Gentala's applica-
tion because the event was "in direct support of a religious
organization." Gentala sought City Council review of the sub-
committee's denial of the Prayer Committee's application for
support, and asked the City to reconsider its policy of categor-
_________________________________________________________________
6 In fiscal years 1991-92 and 1992-93, the Fund declined to support sev-
eral fundraisers for Christian schools, including the San Xavier Mission
School's pageant celebrating "the heritage of the Old Pueblo," the Santa
Cruz Church and school's "Fiesta de Familia," the St. John the Evangelist
School's annual Fiesta, and the St. Peter & Paul School's "Fun Days."
There is no information in the record concerning the City's implementa-
tion of the religious-organization exclusion in other years.
7 For example, the City provided Fund support to a fishing clinic for dis-
abled children sponsored by the Aid Association for Lutherans.
4011
ically excluding "events in direct support of religious organi-
zations" from consideration for Fund reimbursement. The
City Council concluded that the denial was proper, explaining
that it would violate the separation of church and state for the
City to sponsor any event directly supporting a religious
group.
A few weeks later, Patricia Gentala and her husband Robert
Gentala, who also was actively involved in the Prayer Com-
mittee, filed this lawsuit, claiming that the exclusion of
"events in direct support of religious organizations" from the
Civic Events Fund violated the Free Speech, Free Exercise,
and Establishment Clauses of the First Amendment, 8 and
seeking preliminary and permanent injunctions against
excluding the National Day of Prayer and other religious
groups from Civic Events Fund support. The Gentalas styled
their complaint as both a facial challenge to the policy and a
challenge to the policy as applied to them.
On September 30, 1997, the district court denied the Gen-
talas' motions for an injunction. The district court recognized
that the First Amendment's speech protection "extends to reli-
gious speech and expression, including prayer and worship,"
and that, where the government establishes, by tradition or
design, a public forum for communicative activity, exclusion
of religious speech and expression can be justified only if
necessitated by Establishment Clause considerations. The dis-
trict court noted that the case on which the Gentalas most
heavily rely is Rosenberger v. Rector & Visitors of the Uni-
versity of Virginia, 515 U.S. 819 (1995), in which the
Supreme Court held unconstitutional the exclusion of a
_________________________________________________________________
8 The Gentalas also alleged that the Civic Events Fund's exclusion of
events in direct support of religious organizations violated the Religious
Freedom Restoration Act, 42 U.S.C. SS 2000bb-1-4. By the time the dis-
trict court ruled in this case, however, that statute had been held unconsti-
tutional, so the district court did not consider this part of the Gentalas'
complaint. See City of Boerne v. Flores, 521 U.S. 507 (1997).
4012
religiously-oriented publication from a university program for
funding the printing costs of student publications from man-
datory student fees. Rosenberger, the district court recog-
nized, is similar to this case in some respects but dissimilar in
others. In particular, the district court stressed, Rosenberger
involved neither the expenditure of tax-derived funds nor
funding for a religious organization, while in this case "Plain-
tiffs represent religious groups seeking tax dollars to support
a religious event." As a result, the district court concluded,
Rosenberger is not determinative here, and "the dispositive
inquiry in this case must be made under the Establishment
Clause."
Conducting that inquiry, the district court began by observ-
ing that, in cases raising issues at the intersection of the Free
Speech and Establishment Clauses, " `specific features of a
particular government action,' " not any " `Grand Unified
Theory that may turn out to be neither grand nor unified,' "
(quoting Rosenberger, 515 U.S. at 853 (O'Connor, J., concur-
ring)), are central in deciding whether the government is, on
the one hand, required to support religiously-oriented speech
activities or, on the other hand, precluded from doing so by
the Establishment Clause. Noting that Rosenberger had
stressed that "if the State pays a church's bills it is subsidizing
it, and we must guard against this abuse," 515 U.S. at 844, the
district court held that compelling Establishment Clause con-
siderations justified the City's denial of the Prayer Commit-
tee's funding request because: (1) the Prayer Committee was
seeking access to general tax funds; (2) the Prayer Committee
is a sectarian religious organization; and (3) if the event were
"paid for, equipped by, and operated by the City, " there
would be a distinct likelihood of creating "the impression that
the City was engaged in a costly joint-enterprise with a reli-
gious group for religious purposes."
The district court also rejected the Gentalas' contention that
the degree of discretion available to the risk manager with
regard to the implementation of the insurance requirement
4013
constituted an impermissible prior restraint of the Gentalas'
speech.
The Gentalas appealed. We affirm, for reasons in most
respects similar to those relied upon by the district court.
Standard of Review
Observing that the critical facts were undisputed, the dis-
trict court found that the Gentalas had suffered no harm,
denied their motions for preliminary and permanent injunctive
relief, and, granting their motion to consolidate the prelimi-
nary injunction hearing with the trial on the merits, dismissed
their suit. Ordinarily, when a district court consolidates a
hearing on a motion for preliminary injunction with a trial on
the merits, its findings of fact are reviewed for clear error and
its legal conclusions de novo. Pinette v. Capitol Square
Review & Advisory Bd., 30 F.3d 675, 677 (6th Cir. 1994),
aff'd, 515 U.S. 753 (1995). Because the facts here are undis-
puted, we review the district court's decision de novo. More-
over, "[w]hen the district court upholds a restriction on speech
as constitutional, we conduct a de novo review of the facts."
Tucker v. California Dep't of Educ., 97 F.3d 1204, 1209 n.2
(9th Cir. 1996); see also Daily Herald Co. v. Munro, 838 F.2d
380, 383 (9th Cir. 1988) (explaining that the rule that "[w]e
review de novo the district court's application of law to facts
on free speech issues . . . reflects a special solicitude for
claims that the protections afforded by the First Amendment
have been abridged") (internal citations omitted).
Discussion
I. The Free Speech Issues
The Gentalas' basic submission in this case is that the
City's categorical exclusion of events "in direct support of
religious organizations" from Fund support impermissibly
infringes on the free speech rights of religious organizations
4014
such as the Prayer Committee, based on their religious point
of view.9 The parties have therefore, quite understandably,
argued vigorously about the free speech aspects, drawing
upon different strains of First Amendment doctrine concern-
ing the role of government in supporting communicative
activity.
The Gentalas, for example, maintain that the Civic Events
Fund is, under the tripartite forum analysis we use to deter-
mine the government's obligations when it permits or encour-
ages the use of its property for communicative activity by
private speakers, either a limited public forum or a nonpublic
forum.10 In either case, the Gentalas seek to convince us, dis-
_________________________________________________________________
9 Although the Gentalas challenged the City's policy both on its face and
as applied to them, under the circumstances of this case the two inquiries
are effectively one. In considering a facial challenge to the policy, we
study the words themselves and the City's "authoritative constructions" of
them, through "its own implementation and interpretation" of the policy.
Forsyth County v. The Nationalist Movement, 505 U.S. 123, 131 (1992).
Based on the record before us, the City's application of the blanket exclu-
sion on funding "events in direct support of religious organizations" to the
Prayer Committee is fully consistent with and illustrative of its implemen-
tation of the policy in other instances in the record.
As for the Gentalas' claim that the exclusion is overbroad, they have not
demonstrated that the exclusion chills the protected expression of any par-
ties not before the court, City of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 797 (1984), and there is no reason to think that it does. The
record suggests, instead, that the exclusion effects little, if any, chilling of
protected speech. The Prayer Committee, for example, held a successful
prayer service in a city park undeterred by the fact that it did not have the
use of the City's sound and light equipment. Nor have the Gentalas shown
any material difference between the Civic Events policy as applied to
them and as applied to any other speaker affected by the categorical exclu-
sion of events in direct support of religious organizations. Thus, this case
is not a candidate for First Amendment overbreadth analysis. Id. at 801-
02.
10 See, e.g., Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460U.S.
37, 46-57 (1983); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc, 473
U.S. 788, 801 (1985); DiLoreto v. Downey Unified Sch. Dist., 196 F.3d
958, 966-67 (9th Cir. 1999).
4015
criminating against groups in the distribution of Fund support
on the basis that their speech expresses a religious viewpoint
is unconstitutional. In support of this contention, the Gentalas
cite, inter alia, Rosenberger, Widmar v. Vincent, 454 U.S.
263, 271 (1981), and Lamb's Chapel v. Center Moriches Sch.
Dist., 508 U.S. 384, 394 (1993), cases which hold that the
government, in administering a limited public forum, may not
exclude some or all types of religious expression. 11
Tucson, not surprisingly, is of the view that the cases the
Gentalas rely upon are not pertinent at all to the speech issues
in this case. Rather, Tucson argues, the situation here fits into
an entirely different mode of First Amendment speech analy-
sis, applicable when the government is in some measure
engaged in communicative activity, as it was in National
Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (gov-
ernment as patron), Arkansas Educ. Television Comm'n v.
Forbes, 523 U.S. 666 (1998) (government as editor), and Rust
v. Sullivan, 500 U.S. 173, 193 (1991) (government as policy
proponent). In all of those cases, some degree of viewpoint or
qualitative selection criteria were permitted because the gov-
ernment was engaged not simply in providing a forum for pri-
vate speech but in forwarding its own program through the
speech of others. See, e.g., Forbes, 523 U.S. at 673-74 (noting
that the government sometimes assumes roles, such as public
broadcaster or curriculum developer, in which its exercise of
"editorial discretion" in choosing among prospective speakers
is a speech activity on behalf of the government itself, not
subject to forum analysis); Downs v. Los Angeles Unified Sch.
Dist., 228 F.3d 1003, 1016-17 (9th Cir. 2000) (holding that a
school district could control the content of messages posted
on high school bulletin boards "without the constraint of
viewpoint neutrality").
_________________________________________________________________
11 The precise reach of the free speech analysis of these cases is cur-
rently pending before the Supreme Court in Good News Club v. Milford
Central School, 202 F.3d 502 (2d Cir.), cert. granted, 121 S. Ct. 296
(2000).
4016
Each of these opposing characterizations of the City's role
in developing and expending its Civic Events Fund has some
considerations in its favor. On the one hand, the City in this
case, like the university in Rosenberger, is administering a
fund providing in-kind services for a wide range of speakers.
A large majority of speakers who meet the applicable Civic
Events criteria were in fact funded during the period for
which there is evidence in the record, so the very strong ele-
ment of qualitative governmental selectivity involved in cases
such as Finley (concerning the administration of the National
Endowment for the Arts) or Forbes (concerning the editorial
discretion necessary in making journalistic decisions) is not
present here.
On the other hand, the criteria for funding here are more
selective than in Rosenberger, albeit not as selective and dis-
cretionary as in Finley and Forbes. That most projects are
funded may evidence only self-selectivity by event organizers
aware of the applicable criteria or, more probably, the avail-
ability of sufficient funds for the period in question, a circum-
stance that may not always prevail. Additionally, the City's
policy goals here are not, one might conclude, similar to those
of the university in Rosenberger; while the university was
concerned with assuring a vigorous interchange of ideas
among students as part of the educational process, the City is
concerned with providing for its citizens and tourists events
of certain kinds that the City believes enhance Tucson's ambi-
ance as an attractive place to live and visit. Because that is the
goal, the City affirmatively identifies itself as the sponsor of
funded events, placing its imprimatur on the events in a man-
ner somewhat like the editor of an anthology does, while the
university in Rosenberger did quite the opposite. See 515 U.S.
at 841.
[1] Were we required to select among the mutually exclu-
sive Free Speech Clause paradigms the parties propound--
each leading under currently prevailing First Amendment
doctrine to a different result concerning the City's authority
4017
to exclude speakers from a government-provided subsidy
because they are engaged in a prayer service--the choice
would be a difficult one. It is a choice we need not make,
however, in order to resolve this case. For, even assuming that
the Gentalas have the better of the battle of the paradigms,
that conclusion would not end the inquiry. Rather, as the
Supreme Court and this court have indicated repeatedly, the
government may decline to subsidize private religious speech
when doing so would violate the Establishment Clause, or,
put another way, avoiding a violation of the Establishment
Clause is a sufficiently compelling reason to justify govern-
ment's exclusion of certain private speech in a forum other-
wise dedicated to communicative activity.12 See, e.g.,
Rosenberger, 515 U.S. at 837; Capitol Square Review &
Advisory Bd. v. Pinette, 515 U.S. 753, 761-62 (1995);13
Lamb's Chapel, 508 U.S. at 394; Widmar, 454 U.S. at 271;
Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1101
(9th Cir. 2000), pet. for cert. filed Jan. 2, 2001; cf. Tucker, 97
F.3d at 1212. We therefore agree with the district court that
if the City's Establishment Clause justification for the Civic
Events Fund's religious exclusion is valid, then the exclusion
is valid as well.14 It is to the Establishment Clause inquiry,
therefore, that we now direct our attention.
_________________________________________________________________
12 For the same reason, we need not determine whether the Civic Events
Fund's exclusion for events directly supporting a religious organization is
in fact viewpoint discriminatory or, instead, is more accurately character-
ized as a content or identity distinction, because the Establishment Clause
justification would suffice even if the exclusion is viewpoint discrimina-
tory.
13 As the Capitol Square Court explained in analyzing whether a city
could bar a private group's placement of a cross in a public square: "There
is no doubt that compliance with the Establishment Clause is a state inter-
est sufficiently compelling to justify content-based restrictions on speech."
515 U.S. at 761-62. Given Capitol Square's factual context and the
Court's citation to Lamb's Chapel and Widmar for the just-stated princi-
ple, the Capitol Square Court plainly meant that private religious expres-
sion in a public forum, however defined, see n.11, supra, not only is
protected by the Free Speech Clause, but also is subject to the constraints
of the Establishment Clause.
14 We note that the considerations just canvassed in summarizing the
competing free speech arguments do become pertinent to our Establish-
4018
II. The Establishment Clause
To embark on that inquiry, however, is not necessarily to
simplify matters greatly, for modern Establishment Clause
jurisprudence is famously indistinct. As a recent summary of
the last century's Religion Clause cases put it:
The Supreme Court is presently split closely on
almost all important issues of . . . separation of
church and state . . . . Resolution of difficult issues
in this area "depends on the hard task of judging--
sifting through the details . . . . Such judgment
requires courts to draw lines, sometimes quite fine,
based on the particular facts of each case."[Rosen-
berger, 515 U.S. at 847 (O'Connor, J., concurring)].
As a consequence of these realities, the current
development of the law provides more themes than
categorical principles, with little doctrinal stability.
Jesse H. Choper, A Century of Religious Freedom , 88 Cal. L.
Rev. 1709, 1741 (2000). The most propitious approach to the
perplexities of Establishment Clause doctrine, we have con-
cluded, is to begin by examining three of the Establishment
Clause "themes" involved both in Rosenberger, the case on
which the Gentalas most heavily rely and which is indeed
quite similar to this one in many respects, and in this case as
well. We then turn to the details of Tucson's Civic Events
program to see why, as we hold, the Establishment Clause
considerations play out differently on the facts of this case
than they did in Rosenberger.
_________________________________________________________________
ment Clause analysis, for they are informative in determining the degree
to which the City's Fund program constitutes an endorsement of the pri-
vate speech involved, a key Establishment Clause consideration. See Santa
Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000); see also pp. 4029-
4031, infra.
4019
A. Establishment Clause Analysis in Rosenberger and
Thereafter
In Rosenberger, the Supreme Court examined a Student
Activities Fund ("Activities Fund") program at the University
of Virginia to determine whether Wide Awake Productions,
an evangelical student-written newspaper otherwise eligible
for an Activities Fund subsidy to cover its printing costs,
could be denied the subsidy because the publication consti-
tuted a "religious activity." The Activities Fund was financed
through mandatory student activity fees; qualified student
groups were required to submit their bills to the Student
Council for payment from the Activities Fund. 515 U.S. at
824. The Court concluded that the Activities Fund was, for
purposes of Free Speech Clause analysis, a designated public
forum, albeit "a forum more in a metaphysical than in a spa-
tial or geographic sense," from which the University could not
exclude speakers based upon their viewpoint. Id. at 830-31.
After determining that the exclusion of Wide Awake Produc-
tions was based on its Christian viewpoint rather than on its
content, the Court held that, absent a compelling justification,
denying Activities Fund support to Wide Awake would be a
denial of the First Amendment's Free Speech guarantee. Id.
at 837. The Court then turned, as we have turned here, to the
question whether the exclusion "is excused by the necessity
of complying with the Constitution's prohibition against state
establishment of religion." Id.
In doing so, the Court discussed three considerations that
have been of great importance in recent Establishment Clause
analysis, each of which has been further developed in subse-
quent cases:
First, the majority opinion in Rosenberger emphasized that
the Student Activities Fund program, if revised to include
religiously-oriented publications, would not single out reli-
gion for special benefits, but, instead, would be "neutral
toward religion." 515 U.S. at 840. At the same time, the Court
4020
in Rosenberger did not rest on the neutrality consideration.
Instead, the Court observed that Establishment Clause analy-
sis, as in comparable cases, turned not only on "general prin-
ciples," id. at 839, namely the Activities Fund's neutrality
toward religion, but also on other "practical details of the pro-
gram's operation." Id.
Moreover, neutrality is merely "one hallmark of the Estab-
lishment Clause," as Justice O'Connor convincingly
explained in Rosenberger. 515 U.S. at 846 (O'Connor, J.,
concurring):
Our cases have permitted some government fund-
ing of secular functions performed by sectarian orga-
nizations. [citations omitted]. These decisions,
however, provide no precedent for the use of public
funds to finance religious activities.
This case lies at the intersection of the principle of
government neutrality and the prohibition on state
funding of religious activities. . . . Not to finance
Wide Awake, according to petitioners, violates the
principle of neutrality by sending a message of hos-
tility toward religion. To finance Wide Awake,
argues the University, violates the prohibition on
direct state funding of religious activities.
When two bedrock principles so conflict, under-
standably neither can provide the definitive answer.
Reliance on categorical platitudes is unavailing.
Id. at 847.
Since Rosenberger, the Supreme Court has continued to
struggle mightily over the question whether neutrality toward
religion is sufficient, or nearly sufficient, to justify govern-
ment subsidies of core religious activity, whatever else may
be the case. A majority of the Court, however, made quite
4021
clear last term, if it was not clear before, that, although neu-
trality is an important consideration in Establishment Clause
cases, that consideration alone is not determinative where
government subsidy of religious activity is concerned.
Thus, Justice Souter, writing for three justices, after first
reviewing at length the history of the neutrality concept in
Establishment Clause jurisprudence, Mitchell v. Helms, 120
S. Ct. 2530, 2578-81 (2000) (Souter, J., dissenting), stated:
`Neutrality' [meaning] generality or evenhandedness
of distribution . . . is relevant . . . but this neutrality
is not alone sufficient to qualify the [government]
aid as constitutional. It has to be considered only
along with other characteristics of aid, its administra-
tion, its recipients, or its potential that have been
emphasized over the years as indicators of just how
religious the intent and effect of a given aid scheme
really is.
Id. at 2581. Similarly, in her opinion for two justices in Mitch-
ell, id. at 2557 (O'Connor, J., concurring in the judgment),
Justice O'Connor decisively reiterated the position she took in
her Rosenberger concurrence against neutrality as the deter-
mining factor in Establishment Clause cases, stating:
"[N]eutrality is important but it is by no means the only
`axiom in the history and precedent of the Establishment
Clause.' Rosenberger, [515 U.S. at 846 (O'Connor, J., con-
curring).] . . . [N]eutrality is not alone sufficient to qualify the
aid as constitutional."
We are left, then, with the clear holding by a Supreme
Court majority that when the government subsidizes religious
activity, the fact that it is doing so pursuant to a program that
treats religious speech or association coequally with other
speech or association is not, standing alone, determinative in
Establishment Clause analysis. Instead, we are obligated to
consider other factors in determining whether the connection
4022
between the government subsidy and the religious activity is
such as to violate the concerns underlying the Establishment
Clause (including, most importantly, the two we next discuss).15
Second, the central concern making Rosenberger a close
and difficult case was that the subsidy to religious expression
involved was not simply the use of government space, gener-
ally open to the public or to some subgroup thereof for
expressive activity, see Lamb's Chapel, 508 U.S. at 395; Wid-
mar, 454 U.S. at 271-72 & n.12, but a form of governmental
financial support for religious activity. The Rosenberger
Court, far from discounting this consideration, recognized that
"[t]he Court of Appeals (and the dissent) are correct to extract
from our decisions the principle that we have recognized spe-
cial Establishment Clause dangers where the government
makes direct money payments to sectarian institutions." 515
U.S. at 842. And indeed, the prohibition on funding religious
activities has been preeminent among establishment of reli-
gion concerns, depending upon one's view of history, from
the nation's infancy, see id. at 868-76 (Souter, J., dissenting);
see also id. at 846-47 (O'Connor, J., concurring) (agreeing
that the "axiom" that " `[p]ublic funds may not be used to
endorse the religious messages' " [citation omitted] has long
been a "bedrock" of Establishment Clause jurisprudence);
compare id. at 853-63 (Thomas, J., concurring), or, at least,
since Everson v. Board of Education, 330 U.S. 1, 17-18
(1941) ("No tax in any amount, large or small, can be levied
to support any religious activities or institutions, whatever
they may be called, or whatever form they may adopt to teach
or practice religion.").16
_________________________________________________________________
15 Judge Fernandez argues in dissent that because the City's Fund policy
is not neutral toward, but expressly excludes, religious organizations, it
necessarily goes beyond what the Establishment Clause requires. As just
discussed, however, while Judge Fernandez' position that neutrality
toward religion is all that matters has been advocated by a plurality of the
Court, five justices decisively rejected that position in Mitchell.
16 It is worth noting, because the distinction becomes lost on occasion,
that the funding concern and the endorsement concern next discussed,
4023
Rosenberger explicitly so recognized, noting that "if the
State pays a church's bills it is subsidizing it, and we must
guard against this abuse." 515 U.S. at 844. The Rosenberger
Court nonetheless held, for several reasons, that the funding
prohibition was not of controlling importance in that case,
emphasizing that: (1) the mandatory fees comprising the
Activities Fund were an "exaction upon the students," not "a
general tax designed to raise revenue for the University,"17 id.
at 840-41; see also id. at 841 (" `A tax, in the general under-
standing of the term, and as used in the Constitution, signifies
an exaction for the support of the Government.' " (quoting
United States v. Butler, 297 U.S. 1, 61 (1936)); id. ("Our deci-
sion, then, cannot be read as addressing an expenditure from
a general tax fund."); id. at 851-52 (O'Connor, J., concur-
ring); (2) Wide Awake was a "student publication[,] . . . not
a religious institution, at least in the usual sense of that term
as used in our case law," so that, in paying Wide Awake's
bills, the University was not paying the bills of a church or
similar organization, id. at 844;18 (3) the activity funded did
_________________________________________________________________
while overlapping in some respects, are not one and the same, nor is one
a subcategory of the other. The funding concern centers in large part on
the interest of citizens in resisting coercion to subsidize religious ideas in
which they disbelieve. See, e.g., Flast v. Cohen, 392 U.S. 83, 103-04
(1968); Everson, 330 U.S. at 15-16. The endorsement concern, in contrast,
centers upon the disturbance of civic society that occurs when the govern-
ment appears publicly to favor one religion over another, or religion over
nonreligion. See, e.g., Santa Fe, 120 S. Ct. at 2278; Capitol Square, 515
U.S. at 779. The funding factor would have force, for example, even if the
government kept secret the fact that tax funds were being funneled directly
to churches to finance their services, while the endorsement "theme"
would be of concern if the government proclaimed an official religion
without providing its adherents any funding at all.
17 In other contexts as well, the Supreme Court has repeatedly empha-
sized the distinction between general taxes and mandatory fees levied on
a select group of people to support activities in their common interest. See
Glickman v. Wileman Bros. & Elliott, 521 U.S. 457, 469-70 (1997); Keller
v. State Bar of Cal., 496 U.S. 1, 12-13 (1990); Abood v. Detroit Bd. of
Educ., 431 U.S. 209, 259 n.13 (1977).
18 The policy at issue in Rosenberger did not permit use of the Activities
Fund to subsidize "religious organizations," defined as organizations
4024
not involve "religious exercises," id. at 842; and (4) the bene-
fit provided did not involve direct funding of religious speech,
since the University did not provide eligible student groups
with direct financial assistance but instead paid their printing
bills. Id. at 842-44.
Third, also prominent in Rosenberger was the concern that
subsidizing Wide Awake's religiously-oriented publication
could be perceived as a governmental endorsement of the reli-
gious ideas propounded by its student editors. The Court rec-
ognized that the Establishment Clause forbids " `government
speech endorsing religion,' " 515 U.S. at 841 (quoting Board
of Educ. of Westside Cmty. Schs. (Dist. 66) v. Mergens, 496
U.S. 226, 250 (1990) (plurality opinion) (emphasis in origi-
nal)), but concluded that, "[i]n this case,`the government has
not fostered or encouraged' any mistaken impression that the
student newspapers speak for the University." 515 U.S. at 841
(quoting Capitol Square, 515 U.S. at 766). In particular, the
Court noted that "[t]he University has taken pains to disasso-
ciate itself from the private speech involved in this case,"
Rosenberger, 515 U.S. at 841; for example, the University
required all recognized student organizations to sign an agree-
ment stating that the recognition does not signal University
"approval of the organizations' goals or activities," and also
required each publication to include the statement that it was
independent of the University, and that the University was not
responsible for its actions. Id. at 824; id. at 849 (O'Connor,
J., concurring). Given this agreement and disclaimer, as well
as the fact that Wide Awake competed with many other
Activities Fund-supported publications for the University
community's attention, it was extremely unlikely that observ-
ers would perceive that the University was endorsing the
views put forward in Wide Awake.
_________________________________________________________________
"whose purpose is to practice a devotion to an acknowledged ultimate
reality or deity." 515 U.S. at 826. The Court ascribed considerable signifi-
cance to the fact that the University did not contend that Wide Awake was
a "religious organization" under its definition. Id. at 844.
4025
[2] Since Rosenberger, the precise nature of the Establish-
ment Clause endorsement inquiry, like the role of the neutral-
ity principle, has been clarified. Santa Fe centered on the
endorsement question, stressing that the concern underlying
the endorsement inquiry is that governmental identification
with religious speech or worship communicates to nonadher-
ents "that they are outsiders, not full members of the political
community, and an accompanying message to adherents that
they are insiders, favored members of the political communi-
ty." 120 S. Ct. at 2279.19 To determine whether a government
subsidy to religion constitutes "actual or perceived endorse-
ment," the Court stressed, requires a highly fact-specific
inquiry, directed at the question "whether an objective
observer, acquainted with the text, . . . history, and implemen-
tation of the [program] would perceive it as a state endorse-
ment" of religious observance. Id. at 2278.
Rosenberger and the Court's post-Rosenberger cases, then,
provide a modicum of theoretical insight into the applicable
Establishment Clause "themes," and, more usefully perhaps,
substantial practical insight into the specific factors most
likely to be informative as we focus our attention on the inter-
action among these various considerations in the circum-
stances of this case.
B. "Sifting Through the Details"
As the foregoing analysis suggests, cases of this kind--that
is, those at the intersection of the Free Speech and Establish-
ment Clauses--are ones in which the admonition that Estab-
lishment Clause "jurisprudence . . . is of necessity one of line-
drawing," Lee v. Weisman, 505 U.S. 577, 598 (1992), has par-
_________________________________________________________________
19 Santa Fe concerned the offering of pre-game prayers over a high
school's public address system at school football games. Applying the
endorsement analysis, the Court determined that, although the prayer was
delivered by a student selected by other students, in the atmosphere of
school sponsorship inherent in the setting, "an objective Santa Fe High
School student [would] unquestionably perceive the inevitable pregame
prayer as stamped with her school's seal of approval." 120 S. Ct. at 2278.
4026
ticular force. Turning to the line-drawing task, we conclude
that this case involves significant factual differences from
Rosenberger in matters that were deemed important to that
case's Establishment Clause analysis. There are also some
contextual matters that we deem to be important but that had
no counterpart in Rosenberger. The upshot is that, looking at
these factors as a whole, we conclude that in this case, the
public funding and government endorsement considerations
considerably overwhelm the neutrality consideration, and lead
us to the conclusion that Tucson's Establishment Clause justi-
fication for its religious organization exclusion is valid.
(1) Tax-based funding of religious organization
[3] Considering the governmental funding of religion, there
are a number of factors that are precisely opposite in this case
from a factor deemed important in Rosenberger . Here, the
source of the Civic Events Fund moneys includes general tax
revenue, not simply fees levied against a discrete group of cit-
izens. Also, Tucson excludes funding only for events support-
ing religious organizations, and the Prayer Committee is
preeminently a religious organization; Wide Awake, in con-
trast, was a student newspaper with a religious viewpoint, not
an "organization whose purpose is to practice a devotion to
an acknowledged ultimate reality or deity." Rosenberger, 515
U.S. at 840 (quoting the university's definition of "religious
organization") (emphasis added). Further, the activity funded
here was a participatory religious service, led by ministers and
consisting primarily of prayer, not a written document, how-
ever proselytizing. Unless we are to believe that the Rosen-
berger Court's explicit reliance on each of these three
considerations was without significance, we must conclude
that in this case, unlike in Rosenberger, Civic Events Fund
subsidies of the Prayer Day and similar events would be tanta-
mount to "the State pay[ing] a church's bills." Id. at 844.
[4] Moreover, Tucson's administration of its Civic Events
Fund involves considerably more discretionary decisionmak-
4027
ing than did the university's administration of the Activities
Fund in Rosenberger. Here, the City has retained a good deal
of subjective discretion concerning which events to fund,
including establishing fairly general substantive criteria,
criteria relating to the organization's (and the Fund's) finan-
cial circumstances, criteria related to whether the event is a
first-time or ongoing event, and criteria concerning the likely
appeal of the event to the citizenry. That most nonprofit orga-
nizations' events are nonetheless funded does not detract from
the fact that City officials do in fact review each application
and make a decision using City-established criteria, that some
applications are denied, and that the very existence of multi-
ple criteria for funding likely leads to self-selection by other-
wise eligible organizations. As a result, one cannot escape the
conclusion, in this case, that it is the City making the choice
which events to fund, a circumstance that, the Supreme Court
has suggested, greatly exacerbates the significance of the tax-
based derivation of the funding. See Mitchell , 120 S. Ct. at
2541-43 (plurality opinion) (stressing the importance of pri-
vate, as opposed to governmental, funding choices as to
whether tax-derived funds will be used by a religious institu-
tion pursuant to a program neutrally available to secular as
well as religious institutions); id. at 2558-59 (O'Connor, J.,
concurring) (agreeing with the plurality's stress on the impor-
tance of private choice, but maintaining that the private choice
must be a true, individual choice, not a governmentally-
prescribed aid formula).
[5] Finally, we note that Tucson's exclusion for events in
direct support of religious organizations appears to apply prin-
cipally where, as here, the event will raise money from
attendees that could be used to fund the organization in the
future. The Gentalas, for example, explained their need for
City funding in part by their desire to generate a surplus from
the "free will offering." There is therefore the additional con-
cern, not present in Rosenberger or in any other case concern-
ing governmental funding of religious activity of which we
are aware, that although the subsidy provided is in-kind and
4028
in that sense indirect, it is intended for use effectively as seed
money to generate other, non-earmarked funds for the reli-
gious organization. The exclusion for events "in direct sup-
port of religious organizations" therefore functions similarly
to a prohibition on cash grants to religious organizations.
Rosenberger, 515 U.S. at 842.
(2) City Endorsement of Religion
Turning to the question "whether an objective observer,
acquainted with the text, . . . history, and implementation of
the [program] would perceive it as a state endorsement" of
any religious observance funded, Santa Fe, 120 S. Ct. at
2279, we conclude that there are considerably more reasons
that such an observer would so conclude regarding Tucson's
Civic Events Fund than there were in Rosenberger.
[6] Here, the subsidy often includes, as it would have for
the Prayer Day event, the on-site, observable presence of city
employees, not simply the behind-the-scenes payment of bills
from private vendors, as in Rosenberger. Moreover, the
equipment used--microphones, lighting systems, tables, pub-
lic address systems--is city-owned and is likely to be quite
visible to onlookers during the event.
[7] Additionally, the detailed, subjective funding criteria
discussed above, as well as the role of the Mayor and Council
in establishing and applying those criteria, would contribute
to an informed observer's impression that an event that sur-
vives the review process is one that the City affirmatively
endorses. Contributing to that impression would be the fact
that many, probably most, events in the parks do have to pay
the prescribed fees because they are not eligible for Civic
Events Fund designation. In short, the City has retained a role
for itself something like that of impresario, selecting the
events that are consistent with the image of Tucson that the
City wishes to foster and that therefore merit public subsidy.
4029
[8] Consistent with the impression created by the funding
process, the City's policy and application form make clear
that the Civic Events Fund program is meant to endorse some
events as "Civic Events" worthy of the City's imprimatur. A
person acquainted with the funding program's text, history,
and implementation would know, for example, that the gov-
erning policy statement expressly states that "[t]he Mayor and
Council encourage and support Civic Events, " (emphasis
added), which are then described by category; that the phrase
"Civic Events" is always capitalized in the policy statement
even when no funding is at issue, indicating a city-conferred
title or status; and that organizers of funded events are
directed to deal with a city official denominated the "Civic
Event Coordinator" in order to "obtain assistance in coordi-
nating the event." Of a piece with these other indicia of
endorsement is the additional, significant requirement that, far
from declaring their independence from the government
funder as in Rosenberger, organizers of Civic Events Fund-
subsidized events must call attention to the City's supportive
role both in pre-event advertising and at the event itself.
It is true, as the district court noted in discounting the sig-
nificance of the latter point, that the City could simply remove
this acknowledgment requirement if it chose. That observa-
tion is not pertinent to our analysis, for two related reasons.
First, as the other factors summarized above indicate, the
express acknowledgment requirement simply confirms the
overall nature of the Civic Events program as one in which
the City affirmatively supports certain privately-originated
events. The acknowledgment requirement does not itself
create that relationship. To require the City to hide its true
relationship to the event would not alter that relationship, but
instead, would only mislead the public.
Second, the courts are not in the business of designing gov-
ernmental programs but, instead, of taking them as they find
them and determining their constitutional significance. Thus,
4030
for example, the Court in Forbes, 523 U.S. 666, did not direct
the government henceforth to run its broadcasting stations on
an open microphone basis so as to avoid editorial decisions
but, instead, viewed the broadcasting program as one in which
editorial decisions were important and came to its conclusions
about the Free Speech rights of those seeking access to the
broadcasting station accordingly. Nor did the Court solve the
knotty Free Speech issues regarding government funding for
the arts involved in Finley, 524 U.S. 569, by informing the
government that it should fund the arts on a first-come-first-
served basis. See id. at 598 (Scalia, J., concurring in the judg-
ment) ("It is the very business of government to favor and dis-
favor points of view on . . . innumerable subjects .. . .
[Government] further[s] [a] favored point of view by achiev-
ing it directly, . . . by advocating it officially, . . . or by giving
money to others who achieve and advocate it."); Downs, 228
F.3d at 1013-14. To require Tucson to drop its express sup-
port of preferred community events in favor of an objective,
hands-off funding system in order that events in direct support
of religious organizations could be funded would be to require
the City to abandon its present program and substitute a dif-
ferent one, a ukase beyond our authority as a court.
We note, as well, that the nature of Tucson's Civic Events
Fund program is such that allowing various religious organi-
zations to compete for funding would lead to some of the very
dangers the Establishment Clause was intended to prevent.
For one thing, in order to comply with the City's emphatically
secular criteria for funding, religious event organizers would
be likely to "secularize" their events. Lee, 505 U.S. at 608
(Blackmun, J., concurring). Although the focus on the com-
munity's "historical, cultural, and ethnic heritage," "critical
issues," and "civic pride" may be commendable, creating an
incentive to structure religious events toward such worldly
objectives would encourage the dilution of spiritual life, not
enhance it. And while fairly small sums are at issue here, the
Establishment Clause principles examined above admit no
distinction between large grants to religion and small ones.
4031
Further, the necessity of applying subjective substantive
criteria could result in the City impermissibly promoting some
faiths over others. Lee, 505 U.S. at 627 (Souter, J., concur-
ring); Everson, 330 U.S. at 15. Some religions are likely to
have more "broad community appeal" than others, or to "con-
tribute to tourism" more readily. Concerns about the dangers
of such government favoritism to the cohesiveness of civil
society echo down from the Framers to the Supreme Court's
most recent jurisprudence. Compare James Madison, Memo-
rial and Remonstrance Against Religious Assessments , P 9
(1785) (observing that government favoritism toward certain
faiths "degrades from the equal rank of Citizens all those
whose opinions in Religion do not bend to those of the Legis-
lative authority"), with Santa Fe, 120 S. Ct. at 2279 (noting
that government sponsorship of a religious message commu-
nicates to nonadherents " `that they are outsiders, not full
members of the political community' " (quoting Lynch v.
Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concur-
ring)).
The short of the matter is that, after "sifting through the
details," we are convinced, first, that this case and Rosenber-
ger, for all their superficial similarity, are different in most of
the details that matter for Establishment Clause purposes, and,
second, that all of the ways in which they differ point toward
an Establishment Clause violation in this case. 20
_________________________________________________________________
20 Judge Kleinfeld suggests, in his dissent, that the record as it stands is
inadequate to decide the issues before us. We disagree.
Judge Kleinfeld treats the factual question whether the City was in prac-
tice selective in expending Civic Events Fund moneys as all-important,
accuses us of "believ[ing] that the very fact that some applications are
denied is enough to decide this case," (post , at 4042), and then notes that
the record contains limited information on the denial-rate question. But we
do not agree that the actual selectivity question is determinative. Rather,
as the above analysis indicates, that some applications are denied is perti-
nent only because that fact tends to confirm that the city is doing what its
program documents in no uncertain terms state that it is doing, namely,
4032
C. Relevance of Free Exercise Clause to the
Establishment Clause
One final point: We do not agree that, as Judge Fernandez'
dissenting opinion maintains, Free Exercise Clause consider-
ations require that we alter our Establishment Clause analysis.
[9] Denying financial subsidies to religious organizations
does not, standing alone, substantially burden Free Exercise
rights. As the Supreme Court observed in Bob Jones Univer-
sity v. United States, 461 U.S. 574, 603-04 (1983), religious
schools' ineligibility for a tax exemption due to their racially
discriminatory practices might impose significant burdens on
their operations, but any such administrative burdens would
"not prevent those schools from observing their religious
tenets." See also Hernandez v. Commissioner , 490 U.S. 680,
699 (1989) (denial of tax deduction not a Free Exercise
Clause violation); Swaggart Ministries v. California Dep't of
Equalization, 493 U.S. 378, 391-92 (1990) (same).
[10] Here, the claim of denial of Free Exercise rights is par-
ticularly weak. The Gentalas have made no showing that their
ability to worship as they choose has been discernibly bur-
dened by the operation of the Civic Events program. Rather,
the Prayer Committee staged a well-attended prayer service in
a City-provided location, the Reid Park bandshell. See Collins
v. Chandler Unified Sch. Dist., 644 F.2d 759, 763 (9th Cir.
1981). In Free Exercise terms, then, the government's denial
of a financial subsidy for microphones and lights to a reli-
gious group is a far cry from its outright prohibition of the
group's religious practice. Cf. Church of the Lukumi Babalu
_________________________________________________________________
affirmatively promoting certain events as city-endorsed and approved. The
other indices of endorsement, surveyed in the text, are sufficient to raise
Establishment Clause concerns even if, in a given year, the City deter-
mines that all applicants for Civic Events Fund support meet the requisite,
detailed criteria for funding and that sufficient funding is available for all
of them.
4033
Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (holding that
ordinance prohibiting a religious group's ritual violated the
Free Exercise Clause).
Moreover, the refusal to fund the Prayer Committee's
microphones and lighting is also a far cry from denying a reli-
gious organization or event services essential to survival in
civil society, such as police and fire protection. Police and fire
protections are vital public services to which all citizens enjoy
a basic entitlement. Denying such services to a particular
group of citizens would both evince government hostility and
threaten the group's ability to exist. The same simply cannot
be said of Tucson's program, a subsidy for items such as
microphones and stage lights for special events, available
only to a limited set of potential users and in no way neces-
sary for survival in the modern world. Indeed, if the failure to
subsidize a religious activity with regard to expenditures that
are in no way analogous to basic public safety services vio-
lated the Free Exercise Clause, the Court would have said so
in Rosenberger and written a very different, and much
shorter, opinion.
[11] We therefore conclude that Tucson was correct that it
could not provide funding to "events in direct support of reli-
gious organizations" generally, or to the Prayer Day event in
particular, without violating its constitutional obligations
regarding the separation of church and state.
Conclusion
Because we agree with the City that its policy is mandated
by the Establishment Clause, we need not reach the question
that the City raises on cross-appeal: whether the district court
should have granted the City leave to amend its answer to add
an affirmative defense derived from the Arizona Constitu-
tion's religion clauses.21 The federal Constitution provides all
_________________________________________________________________
21 We affirm the decision below on the insurance issue for the reasons
stated by the district court.
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the defense Tucson needed in this lawsuit. We affirm the dis-
trict court in all respects.
AFFIRMED.
_________________________________________________________________
FERNANDEZ, Circuit Judge, dissenting:
As I see it, this case is not about speech, or viewpoints of
speakers, at all. It is solely about outright discrimination
against religious organizations. As such, it does violate the
First Amendment, but not the clause which precludes govern-
ment from "abridging the freedom of speech." Rather, it vio-
lates the clauses which command that government "shall
make no law respecting an establishment of religion, or pro-
hibiting the free exercise thereof." As I shall explain, that
does not make the law any less malignant.
Because it is where the City of Tucson (as well as the
majority) starts, I shall first address the speech issue, and in
so doing I shall begin with the City's "Civic Event Policy
Statement and Evaluation Criteria." That is both inclusive and
exclusive. It provides for City support of civic events which
either "celebrate and commemorate the historical, cultural and
ethnic heritage of the City and the nation, or increase the com-
munity's knowledge and understanding of critical issues," or
"generate broad appeal and participation," or "instill civic
pride," or "contribute to tourism," or "are identified as unique
community events." A large menu of choices of great breadth!
The support of those events does not come in the form of cash
paid to the sponsoring organizations; it comes in the form of
accounting transfers within the City's departments to defray
such "typical event-related services" as police protection,
clean up (including street sweeping), use of park event equip-
ment, and the like.
A wide array of non-profit organizations, indeed almost all
of them, can participate. The only types of organizations
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excluded at the threshold are those that are receiving a special
City benefit already, and religious organizations. As the pol-