There they go again! The hard-left majority of the 9th Circuit Court of Appeals tried again earlier this month to create out of thin air a constitutional principle of hostility to religion. It ought not succeed.
In the case of Faith Center Church Evangelistic Ministries v. Glover, the majority overturned a perfectly reasonable preliminary injunction issued by a district court. The injunction ordered the Antioch Library in Contra Costa to allow Faith Center the same opportunity to use library meeting rooms that Democratic Party groups and other community organizations enjoy, at least until the court can hear and decide the full case on the merits.
The preliminary injunction was designed to allow Faith Center to exercise its First Amendment rights to free speech. The 9th Circuit majority agreed that the First Amendment was at issue, and it agreed that even the temporary loss of First Amendment rights would constitute “irreparable harm” if indeed it turned out that those rights had been unconstitutionally abridged. And it duly cited longstanding precedent that the potential for irreparable harm is sufficient for a preliminary injunction.
Yet despite all this, it vacated the injunction. This is astonishing.
The “balance of hardships” (another test in determining whether an injunction is appropriate) clearly weighs in favor of the religious organization, not the library. If the library allows a religious meeting to be held behind closed doors pending constitutional review, no permanent harm is done the library.
But if the religious group is denied use of the library even for a short period, its speech rights are irretrievably lost during that time period. In this case, that period could be extensive, consisting of the entire time that this case winds its laborious way through the courts.
In its decision, the 9th Circuit majority determined that Faith Center could hold a morning session at the library devoted to “an End-Time call to Prayer for every Believer, and how to pray fervent, effectual Prayers that God hears and answers” — but that it could not hold an afternoon session of the same meeting devoted to “Praise and Worship,” including a sermon.
As fairly summarized by the majority, the district court’s rationale for granting the injunction favorable to Faith Center was that “religious worship is speech protected by the First Amendment; religious worship cannot be distinguished from other forms of religious speech; the exclusion of religious worship from otherwise permissible speech of a religious nature constitutes viewpoint discrimination. …”
Yet, relying largely on a single footnote from the 2001 Supreme Court case of Good News Club v. Milford, the majority ruled that “mere religious worship” is indeed distinguishable from other religious speech and that such worship does not enjoy the same First Amendment protections.
Down that road lies the serious danger that government officials — including power-hungry judges — could be asked repeatedly to decide, case by case, which religiously oriented activities constitute worship and which are mere speech.
As seven dissenters on the 9th Circuit aptly noted, the refusal to allow “worship” could well put the government in the position of outlawing Christian, Jewish and Islamic meetings, while still allowing Buddhist, Confucian and other meetings that involve ritualistic activities similar in form to Christian services, but which are devoted to ethical principles or universal wisdom rather than to “worship” of a deity.
Surely such a distinction between Jew and Confucian amounts to “viewpoint discrimination” — and even the 9th Circuit majority acknowledges that viewpoint discrimination would amount to an unconstitutional First Amendment violation. The majority’s opinion does not come close to adequately addressing this objection by the wise dissenters.
Logic alone dictates that distinguishing between religious expression and religious worship services is a dangerously Solomonic enterprise. But as the dissenters amply demonstrate, the majority runs afoul not just of logic but of law, in this case Supreme Court precedent “stretching back nearly three decades.”
Most apropos is the 1981 case of Widmar v. Vincent. In Widmar, the high court ruled that a public university could not exclude an evangelical student group from use of its facilities because “religious worship and discussion” are “forms of speech and association protected by the First Amendment.”
For the 9th Circuit majority to ignore that crystal-clear precedent is for it to abjure the fealty it and every lower court owes to Supreme Court rulings.
It also demonstrates that hostility against worship is a form of fervor utterly unbecoming for those whose vestments signify authority not from God but from Caesar.
Examiner columnist Quin Hillyer is a senior editor of The American Spectator.
