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High court vacates ruling in Arizona prayer-day case

By The Associated Press,
freedomforum.org staff

10.10.01

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The Supreme Court yesterday acted in several cases that have First Amendment implications.

The high court:

  • Ordered a federal appeals court to revisit a case that examined whether an Arizona city must reimburse a Christian group for renting public park facilities.

  • Refused to intervene in a case against the city of Pasco, Wash., thereby allowing two artists whose nude works were barred from City Hall to proceed in a lawsuit against the city.

  • Declined to hear the appeal of a Texas police officer fired for wearing a cross on his uniform.

  • Refused to hear the free-speech appeal of a family that wanted to swim and sunbathe naked together at a public beach in Texas.

Gentala v. Tucson
The Supreme Court yesterday ordered a federal appeals court to take another look at a case that asked whether taxpayers must cover $340 in expenses from a prayer rally in a city park.

The high court said the case should be reconsidered in light of the Supreme Court's ruling earlier this year in Good News Club v. Milford Central School. In that case, the high court ruled that a Bible club cannot be excluded from meeting at a public school so long as other groups with a moral viewpoint are allowed to gather there.

Organizers of a National Day of Prayer event said Tucson should have covered costs for park equipment and services, like it does for some other groups.

The Supreme Court erased a 9th U.S. Circuit Court of Appeals ruling that favored the Arizona city.

Tucson had charged the Christian group $340 for rental fees in 1997. The city has a fund to help pay for events in the public parks, but requests for the money are screened. Events that promote religion are ineligible.

"The court of appeals was appropriately concerned here about the direct use of tax dollars to fund a religious organization's religious activity," Tucson's attorney told the Supreme Court.

While Tucson will not subsidize events with religious messages, it does help pay for religious-sponsored events that benefit the community, like a Lutheran-sponsored fishing camp for disabled children.

Organizers of the prayer rally said other events that won city support include a gay pride picnic, Hispanic arts event and Earth Day festival. Some rejected events included a greased pig contest and car show.

The city turned down the religious group's request "solely because the use would entail a forbidden perspective — that of a believer supplicating God," said prayer day organizers Patricia and Robert Gentala.

"Were the 9th Circuit's miserly test correct, one would be hard pressed to challenge such plainly noxious laws as a ban on clergy attending Fourth of July events, or the categorical exclusion of church vehicles from the HOV lanes," the Gentalas told the court.

The issue had generated two rulings from the appeals court. In the first, a divided three-judge panel said the city's practice violated the group's freedom of speech.

The panel also said city funding would not violate the constitutional separation of church and state because the aid would be minimal and indirect and would not amount to a government endorsement of religion.

That ruling was overturned by an 11-judge panel of the court.

"The federal Constitution provides all the defense Tucson needed in this lawsuit," Judge Marsha S. Berzon wrote in the 8-3 opinion.

The event sponsored by the Tucson Association of Evangelics was free and open to the public. Pastors from nine churches were invited to speak, and an offering was taken.

Tucson said groups that are given city help to pay for such things as sound equipment are required to acknowledge the city's assistance both through advertising and an announcement at the event.

The city said its contribution could be viewed as an endorsement of the event.

"The city is not prohibiting petitioners from engaging in any religious practice, nor are they precluded from using stage, audio, lighting or other city equipment for their events," the court was told.

Pasco v. Hopper
Two artists will get to sue their hometown for refusing to allow their nude art in City Hall, after the Supreme Court refused yesterday to intervene.

An appeals court has already ruled that the town of Pasco, Wash., violated the artists' constitutional free-expression rights. The Supreme Court declined without comment to review the decision.

The case now goes back to the district court.

The case turned on whether City Hall was a public forum.

Pasco leaders argued that cities around the country were worried that they could be besieged with controversial art and would instead ban displays of any work.

In this case, Pasco leaders had designed an area of their new building, a renovated school house, as an art gallery. The 9th U.S. Circuit Court of Appeals said that made it a public forum and thus open to a range of artistic ideas not necessarily of the city's choosing.

The city manager took down a bronze statute of a woman's buttocks after getting complaints. He refused to put up black-and-white pictures of a naked couple in silhouette in various poses, including a tango.

The two artists, Sharon Rupp and Janette Hopper, said they were invited to show their work in the space, then randomly censored.

Pasco said a town hall is inappropriate for controversial art.

"When someone enters city hall to pay a water bill, or secure a building permit, or the like, he or she is not interested in discourse," Pasco's attorney, John G. Schultz, told the Supreme Court.

The artists, represented by the American Civil Liberties Union, said the appeals court ruling "simply requires that Pasco abandon its careless, slapdash approach and instead create and consistently enforce objective standards."

The town had hired a private organization in 1994 to coordinate the exhibits with work of local artists. There were no written guidelines.

"Municipal planners and managers, especially in small cities like Pasco, do not have the time, resources, desire, inclination or capability to formulate and implement a consistent and clearly articulated arts program," Pasco told the court.

Hopper and Rupp were invited to submit art in the third exhibit in City Hall, for three months in the spring of 1996.

Rupp's most controversial work was the statue of the woman's rear end, which the city said was "mooning" viewers. The city also removed Rupp's other works, a floral piece and a statue showing a woman struggling with a box on her head.

The city never even displayed Hopper's prints, called "Adam and Eve," in the designated Pasco City Hall Gallery because the city has an ordinance banning public nudity. After the controversy, Pasco canceled the art program.

"The 9th Circuit's ruling will likely discourage cities from experimenting with public art displays, which ultimately will be more harmful for artists than a loss in this case," the city said.

Lawyers for the artists said there was no proof art would suffer.

"The federal government, as well as numerous states and localities, have public art programs that have been in existence for decades without running into the problems that Pasco confronted in this case," the ACLU attorneys told the court.

Cities "successfully establish criteria that involve difficult constitutional issues all the time," the lawyers said.

A judge in Washington state had dismissed the Pasco lawsuit, finding that "bare rumps and cavorting nude couples are not family fare." The 9th Circuit reinstated the case earlier this year, and the city appealed.

Daniels v. City of Arlington
A Texas police officer fired for wearing a cross pin on his uniform will not get a chance to win his job back. The Supreme Court declined yesterday to take his appeal.

Over the years judges have dealt with multiple lawsuits over government employee dress policies, including one over the suspension of firefighters for wearing American flag pins on their uniforms.

Courts have generally held that dress codes are constitutional.

George Daniels was fired in 1998 for wearing a small gold cross on his uniform collar. Daniels, an evangelical Christian and 14-year decorated sergeant, had been twice ordered to stop wearing the pin. He began wearing it when he was a plainclothes officer.

The Arlington Police Department said the agency's interest in maintaining a public appearance of impartiality outweighed Daniels' right to promote his Christianity.

"By demanding that a police uniform be opened as a forum for free speech and exercise, (Daniels) seeks to create public confusion over the authority endorsed and represented by the symbol of an official police uniform," lawyers for the city argued to the high court.

Daniels argued that the city allows the police chief to choose what pins can be worn on officers' uniforms, a policy that "invites discrimination — however tacit and subtle — against viewpoints expressed by particular symbols."

"Government censorship cannot be condoned simply because the government assures us its motives are pure and its ends legitimate," Daniels told the court.

The fired officer said that appeals courts have disagreed on the issue. In 1994, the 8th U.S. Circuit Court of Appeals said firefighters were wrongly suspended for wearing American flag pins. The court said the pins did not disrupt the workplace.

The Supreme Court upheld military uniform policies in 1986, ruling 5-4 that the Air Force properly banned a former captain who is an Orthodox Jewish rabbi from wearing a yarmulke, the traditional Jewish skull cap.

Arlington said it didn't want officers to wear any pins and "any effects the restrictions have on (Daniels') free speech or free exercise of religion are incidental."

The city said Daniels could have worn the religious symbol on another piece of jewelry — a bracelet or ring for example — that did not alter the appearance of his uniform. He could also accept a transfer back to a plainclothes job where he could continue wearing the cross, the city said.

The 5th U.S. Circuit Court of Appeals in New Orleans upheld the firing.

Daniels was represented by the Virginia-based Rutherford Institute, a conservative group that defends claims of religious discrimination. Daniels still works in law enforcement, but in another state, his lawyer said.

Central Texas Nudists v. Travis County
A family that wanted to swim and sunbathe naked together at a public beach lost a free-speech appeal in the Supreme Court yesterday.

The court, without comment, declined to review a court decision that allowed authorities near Austin, Texas, to ban nudity for children in a lakeside park called Hippie Hollow, and prosecute adults who appeared naked in the presence of children there. The ban was intended to protect children from sexual predators.

Robert and Christine Morton and their three children describe themselves as naturists who have wholesome attitudes about the human body. Appearing naked as a family, in public, is essential to the naturist philosophy, the Mortons claim.

Their parental rights and their rights to free expression under the First Amendment were violated by a 1995 change in the rules for Hippie Hollow, the Mortons' lawsuit said.

The Mortons asked the Supreme Court to consider whether the family's right to express their values together should trump Travis County's view that children under 18 should neither be displayed nude nor exposed to adult nudity.

In previous rulings the high court has made it easier for cities to ban nudity in some instances, but also have found that nudity combined with some activity can be considered expression under the First Amendment.

Last year, the high court ruled in City of Erie v. PAP's A.M. that in the interest of reducing crime a city can require nude dancers to be less than nude, even though dancers claimed pasties and a G-string restricted their freedom of expression.

The Lower Colorado River Authority, which owns the park, and Travis County, which leases and operates it, have said they want to keep children out of the park to protect them from sexual predators.

A midlevel state appellate court ruled against the Mortons and Central Texas Nudists last year, and the state Supreme Court declined to hear the case.

The appeals court said nudity, including family nudity, was not unduly restricted by the park rules, because the family could simply go somewhere else. Hippie Hollow, formally known as McGregor Park, did not change its rules allowing adults to go without clothing if they chose.

The Mortons noted that Hippie Hollow is the state's only public nudist park.

Related

Texas police sergeant loses religious-ornament suit
Federal appeals panel upholds dismissal of officer fired for wearing cross on uniform.  04.11.01

High court to hear Jehovah's Witnesses case
Analysis Challenge to Ohio village’s door-to-door solicitation statute could result in ruling on the extent to which First Amendment protects anonymous speech.  10.16.01

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