FAITH CENTER CHURCH v. GLOVER
The Ninth Circuit Court of Appeals today released an amended order in FAITH CENTER CHURCH v. GLOVER, No. 05-16132, a civil rights appeal. The panel consisted of Richard A. Paez and Richard C. Tallman, Circuit Judges, and Lawrence K. Karlton, Senior District Judge.
PAEZ, Circuit Judge:
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. ยง 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 . . .
The final sentence of the seventh paragraph of Section V.A. of the Opinion filed September 20, 2006 and published at 462 F.3d 1194, 1209 (9th Cir. 2006), is amended by inserting the following after “See id. at 138 n. 3, 121 S.Ct. 2093″: “(Souter, J., dissenting).” The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing. . . .
BYBEE, Circuit Judge, with whom O’SCANNLAIN, KLEINFELD, TALLMAN, CALLAHAN, BEA and SMITH, JR., Circuit Judges, join, dissenting from the denial of rehearing en banc:
The panel majority’s decision permits the government to single out what it calls “mere religious worship” for exclusion from a forum that it has opened broadly for use by community and cultural groups. In so doing, the majority has disregarded equal-access cases stretching back nearly three decades, turned a blind eye to blatant viewpoint discrimination, and endorsed disparate treatment of different religious groups. I respectfully dissent from the court’s decision not to rehear this case en banc. I The Contra Costa County Library makes its rooms generally available to the public for “educational, cultural and community related meetings, programs and activities.” Faith Ctr. Church Evangelistic Ministries v. Glover, 462 F.3d 1194, 1198 (9th Cir. 2006). The County’s policy contains several time, place, and manner restrictions, along with one purportedly content-based restriction: The rooms “shall not be used for religious services.” Id. at 1198-99. All other meetings-including those involving religious speech short of “services” –are welcome to the library. . . .
TALLMAN, Circuit Judge, 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.” Notwithstanding the broad and inclusive policy it. . .