October 10, 2001

SUPREME COURT ROUNDUP 

Justices Set Aside Ruling Against Prayer Organizers

By LINDA GREENHOUSE

WASHINGTON, Oct. 9 — The Supreme Court today set aside an appeals court's ruling that enabled the City of Tucson to charge a religious gathering for the municipal services that it provides free to other groups holding events in the city's parks under nonprofit sponsorship.

The justices made no comment on the merits of the case, an appeal by the sponsors of a "national day of prayer" held in a Tucson park in 1997. The court simply instructed the United States Court of Appeals for the Ninth Circuit to reconsider its ruling in light of the Supreme Court's decision in June to require access to public school buildings by after- school religious clubs on the same basis as any after-school activity.

So although there was no actual decision from the court today, the action was another indication of how seriously the justices take the "equal access" principle the court has been developing for speech with a religious message. In a series of recent cases, the court has insisted that religious speech be provided the same access to a government-controlled forum as any other speech that is permitted there.

In its ruling on June 11 in Good News Club v. Milford Central School, the Supreme Court required an upstate New York school district to provide space for an after-school Bible club for elementary students. Lawyers for Patricia and Robert Gentala, who organized the disputed event in Tucson, argued that the ruling in the New York case had "repudiated" the rationale the appeals court used to uphold Tucson's policy.

Under that policy, sponsors of events in city parks have to pay for services like trash removal and lighting. But waivers of the fees are broadly available to nonprofit groups with the exception of events "held in direct support of religious organizations," a category that includes both direct fund-raising and events that simply have religious messages.

In their application to hold a day of prayer, the Gentalas described the event as "a time of praise and worship" at which pastors from nine churches would lead prayers. The city refused to waive the $130 fee for using the band shell. The sponsors paid the fee and held the event, later filing a federal lawsuit after the City Council refused to change the policy.

The Federal District Court in Tucson dismissed the suit in a decision that was overturned by a three-judge panel of the appeals court, which sits in San Francisco. An 11-judge panel of the appeals court then reconsidered the case, issuing an 8-to-3 decision last March that upheld Tucson's policy as not only permissible but required by the constitutional separation of church and state.

The American Center for Law and Justice, a legal group affiliated with Pat Robertson, represented the Gentalas in their Supreme Court appeal, Gentala v. Tucson, No. 01-75.