Agenda - 10-09-2007-6a - Laserfiche WebLink

Browse Search

5 Orange County Board of Commissioners Page 3 (7ctober 4, 2007 Appeals held that, "[s]ince `without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or viewpoint of the speaker' the absence of constraining standards in the text of [the] Policy and in administrators' practice renders [the] Policy incompatible with the First Amendment."14 Child Evangelism is similar to the situation at hand in that a religious organization has requested that the County waive a facility use fee so that the organization can hold a five day long religious revival on County park property. Unlike in Child Evangelism, the County's "Facilities Use, Reservation, And Rental Policy" does not contain any provisions for the waiver of usage fees. Due to the fact that the County does not currently have a fee waiver policy in place, the Board's decision to waive or not to waive the fee on behalf of Reverend Brooks would be purely discretionary. This level of discretion exceeds that of the Anderson school officials under its Policy that was explicitly prohibited by the Court in Child Evangelism. Therefore, under Child Evan elg ism, the County is not legally permitted to grant a fee waiver to Reverend Brooks. It maybe possible to develop a constitutionally permissible fee waiver policy that provides sufficient and adequate criteria to prevent viewpoint discrimination. However, to do so will be tricky. Our reading of the decision of the Fourth Circuit Court of Appeals in Child Evangelism and the decision of the Ninth Circuit Court of Appeals in Faith Center Church v. Glovers is that each of these two courts may very well have reached the opposite conclusion were the cases before them reversed. However, Orange County is controlled by Fourth Circuit Court of Appeals decisions. The Fourth Circuit Court of Appeals in Child Evan elg_ ism cited several recent United States Supreme Court decisions that reiterate the proposition which is founded on the free speech analysis in previous paragraphs of this letter that, "[g]overnment need .not fear an Establishment Clause violation when it allows religious groups to speak under the same reasonable, viewpaint- neutral terms as other private'parties._."16 The Child Evangelism Court went on to state that, "[t]he decisions also indicate that communities of faith may not be arbitrarily excluded from the protections of the Free Speech Clause . .."17 While it may be constitutionally permissible to prohibit religious services from being held in certain limited and nonpublic fora,j8 Supreme Court cases make it clear that it is not permissible to prohibit discussion of issues from a religious perspective when the same issues are w Id. at 1072. is Faith Center Church v. Glover, 462 F.3d 1194, {9'~ Cir. 2406} (cert. de~aied Faith Ctr. Church Evan elistic Ministries v. Glover, 2007 U.S. LEXIS 9252 (U.S. Oct. 1, 2007). ~~ Id. at 1068. ~~ Id. at lOb8. ~s Id.