By MIKE MANNO
Well, I certainly didn’t expect this. In all my years following the legal battles involving religious liberty, this just might be a first.
In Edisto Beach, S.C., the town has a civic center which it rents out for “civic, political, business, social groups, and others.” Recently it denied the rental application of a church, Redeemer Fellowship. Now at this point you would expect that the argument would be that the church is a religious organization and renting to it would violate the “separation” of church and state. But you would be wrong.
The town does rent to religious institutions. In fact it already rents out its facilities for church office space, Bible studies, ministry training, and the like, as well as weddings, birthdays, baptism celebrations, and other events.
The catch here is: The town will not rent the center for worship.
That’s right. According to the town, Bible and prayer meetings, religious instruction, and church offices are okay, they don’t cross the church-state line. But worship does. That brilliant legal concept was put forth by the town’s legal staff.
A little background: Redeemer Fellowship is a small congregation of about 50 souls. It rented space in the center several times this year. In March the church rented space for its Easter worship service, and, on April 1 it held its first worship service in the center’s auditorium.
Since the church was looking for a place to conduct its worship service, and the town center was a convenient and suitable facility, on April 9 the church submitted an application to use the auditorium again, and for the use of one of the center’s multi-purpose rooms for an office.
The center is composed of the auditorium, with a seating capacity of 150, a lobby area, and six multi-purpose rooms, four of which are in permanent occupancy. The local Episcopal Church uses one of the multipurpose rooms as a church office and for Bible studies. It has a sign inside the center outside its rented space, which says, “The Episcopal Church of Edisto.”
You’d think this would be a slam-dunk approval process. It wasn’t. Redeemer Fellowship’s application was referred to the town council and at a May 10 meeting the attorney for the town advised the council to reject Redeemer’s application and to amend the center’s use guidelines to prohibit rental for religious worship services, so as not to violate the Establishment Clause of the U.S. Constitution.
The church was then informed that it could not use the center for worship, but was free to rent one of the multipurpose rooms as an office. Does anyone see a problem with this? Well, the church did and so did the Alliance Defending Freedom (ADF), which filed a federal lawsuit against the town claiming, among other things, “impermissible viewpoint discrimination,” in violation of the First Amendment’s speech and religion provisions.
The town claims that the prohibition on worship is a permissible content-based restriction because the government may reserve a limited public forum for discussion of certain topics and has reserved the center for speech that does not involve “worship services.” The town also argues that worship is not constitutionally protected speech because it is a “type of activity” rather than an “expression.”
That defense seems to me to raise a host of questions, the first of which is why a governmental body is attempting to define what “worship” is in relation to other activities. And if worship is an “activity” rather than an “expression,” what is a Bible study? Is that an activity, which I would think it is, or is it worship? After all, the study of the word of God could certainly be deemed worship, or at least a worshipful activity.
So what is going on here?
The church filed a petition and a motion for a preliminary injunction against the town to be allowed to rent the center for worship services while the case is pending. It is making several legal arguments: First is that the law, Constitution, and Supreme Court precedents make clear that “giving religious organizations equal access to government facilities does not violate the Establishment Clause. But affirmatively discriminating against religious worship most certainly violates the First Amendment.”
That is followed by the usual litany of constitutional claims involving free speech, prior restraint, freedom of religion, and violations of equal protection and due process.
In short, the argument against the town was summed up by ADF Attorney Christiana Holcomb, “Churches shouldn’t be treated less favorably than other groups that want to rent facilities….[T]he town’s recent policy change singles out one form of expression, worship, as inferior to other forms of speech, and that’s clearly unconstitutional.”
Now for a “new” strange twist, something that wouldn’t have happened three or four years ago: the United States Department of Justice entered the case on the side of the church.
Says the U.S. attorney: “[The law] authorizes the Attorney General ‘to attend to the interests of the United States in a suit pending in a court of the United States’….The First Amendment enshrines both the right to ‘the free exercise’ of religion and ‘the freedom of speech’ at the bedrock of the Nation’s constitutional system. These freedoms lie at the heart of a free society and are the ‘effectual guardian of every other right’.”
Bet you wouldn’t have seen this during the Obama administration!
The United States argues, “The Town thus has singled out and banned a category of constitutionally protected speech and religious exercise — religious worship — based solely on its content and viewpoint. This discriminatory ban is impossible to reconcile with Widmar v. Vincent [cite omitted], where the Supreme Court struck down on First Amendment grounds a virtually identical ban on ‘religious worship or religious teaching’ in a university’s limited public forum.”
ADF Counsel Erik Stanley noted that the DOJ’s involvement demonstrates that the Town of Edisto’s reading of the First Amendment is “exactly backwards” as it seeks to discriminate against religious worship and prohibits equal access that the Establishment Clause permits.
Okay, but I still want to know: What is the legal difference between worship and Bible study? And as long as the worship service doesn’t involve virgin sacrifice, why should it be banned and religious instruction be allowed? And why should the government be involved? Some of these cases you can chalk up to religious animus; however, this one is just inexplicable.
But I don’t litigate these things — I just write about them.
You can contact Mike at: DeaconMike@q.com.
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