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Equal Access to Public Facilities for Religious Use

The term "Equal Access" derives from the constitutional principle that when the government confers benefits on a broad group of citizens, it must not discriminate on the basis of religious beliefs or speech. The ACLJ has played a pivotal role in securing right of religious groups to use government property, free from discrimination.
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Introduction

Unfortunately, some municipalities and public facilities administrators mistakenly believe that they are permitted to, or even required to, deny religious organizations the same access to public facilities as other organizations enjoy. But Christians, and other religious adherents, are not second class citizens. When facilities are open for use by community organizations, it is unconstitutional for school administrators to deny an organization or student group the same access to the facility as other groups enjoy simply because the group is religious. Such unequal policies amount to “viewpoint discrimination” and are per se unconstitutional. Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828-29 (1995); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).

Religious Organizations May not be Denied Equal Access to Public Facilities

In Lamb’s Chapel, argued by Jay Sekulow as lead counsel, a unanimous Supreme Court held that the First Amendment requires religious groups to be treated equally with other groups that use public facilities. The court upheld two principles. First, denying religious organizations equal access to, and use of, public facilities for speech activities violates the Free Speech Clause of the First Amendment. Second, it is not a violation of the Establishment Clause (what some people mistakenly call “separation of church and state”) for a school to treat religious organizations equally with other organizations. These principles apply to all public facilities, not just school facilities, which have been opened for use by community organizations.

What is the Lamb’s Chapel case?

The facts in the Lamb’s Chapel case were straightforward. An evangelical church desired to rent a school facility for an evening showing of a film series produced by Focus on the Family ministry. The film series, entitled “Turn Your Heart Toward Home,” dealt with contemporary family issues from a biblical perspective. School administrators denied the church’s request for use because it was “church related.” Although the school facilities were available to community groups for social, civic, and recreational purposes, the rules and regulations specifically prohibited any religious use. The Supreme Court ruled against this prohibition, stating that the religious exclusion was unconstitutional.

What is the impact of the Lamb’s Chapel case?

In many cities and counties throughout the United States, local school facilities are the community’s town halls. Access to these town halls is essential for religious adherents who want to have issues addressed from their perspective. Although many in a community may not feel comfortable going to a church to hear a presentation on a contemporary issue, people do feel at ease attending meetings held in community facilities such as school auditoriums and civic centers. The impact of the Lamb’s Chapel case is significant. Every government agency, from school boards to city councils, that has access policies in place for its properties must now allow religious organizations to use those facilities as well. We must take advantage of this new openness in the marketplace the Lamb’s Chapel case has created.

Does Lamb’s Chapel only apply to churches?

No. Although the particular case before the Supreme Court involved the Lamb’s Chapel church, now other community groups that want to address issues from a Christian perspective also have access to government facilities that are open to the public for use. For instance, in Mobile, Alabama, an evangelistic ministry known as “Strike Force International” is now entitled to have an evangelistic crusade at the public school in Alabama because of an access policy that had to be modified in light of Lamb’s Chapel. Evangelistic events can now take place in school facilities in the evening as well as in city halls or other government facilities open to general use.

Does Lamb’s Chapel only apply to school facilities?

No. The decision in Lamb’s Chapel applies to any government facility, whether a town hall, civic center, or city hall, that is open to the general public for social, civic, or recreational uses. We have found that most cities across America have access policies to local government buildings for community use. We have also found that many of these cities specifically prohibit religious groups from utilizing these facilities. This religious exclusion is unconstitutional in light of the Lamb’s Chapel decision.

What topics can be discussed when using government facilities?

In Lamb’s Chapel, the Supreme Court specifically noted that the purpose of the James Dobson film series was to address contemporary family issues from a Christian perspective. But the decision goes much further. Family issues, baccalaureate services for students, evangelistic events, and discussion of contemporary Christian issues can now take place in government facilities because of the decision in Lamb’s Chapel. No longer can the excuse of church/state separation be utilized to prohibit Christians from obtaining access to this new marketplace for the presentation of ideas.

Does this mean that the government cannot control the use of their facilities at all?

No. For example, a school district does not have to allow community groups to use its facilities after hours. The school may simply say, no one is allowed to use our facilities, or in some cases, it may limit the use of the facilities to certain types of content. But, if a school, or the administrator of any other government facility, opens that facility for use by community organizations, they may not exclude religious organizations from the same access that other organizations enjoy.

What about policies that still prohibit use of government facilities by religious speakers?

Such intolerant and unconstitutional policies should not be allowed. This will require utilizing the rights that were affirmed by the Court in Lamb’s Chapel. Unfortunately, many cities are slow to change, and there are still hundreds of policies on the books throughout the United States which specifically prohibit religious groups from utilizing government facilities that are open to the community at large. At The American Center for Law and Justice, we have undertaken a project to have these laws removed and modified so they conform with Lamb’s Chapel.

The procedure to gain access to a public facility is straightforward. First, if you decide you are going to utilize facilities, you must fill out an application form that is available at the seat of the local city government. Be forthright in the application, and state specifically what purpose you are going to use the facilities for. If the policy still prohibits religious uses, ask the city administrators if they are familiar with the Lamb’s Chapel case. If they are not, we would be happy to send a letter on your behalf to clarify for the city government what the decision in the Supreme Court means. If you continue to have problems gaining access, we have sent demand letters -- letters which state the law and inform the city officials what they must do to comply with the law -- to city officials in order to obtain access. Generally, the demand letter resolves the situation. However, if we find that the demand letter is being ignored and your rights are still being denied, we can then proceed immediately to federal court and request an injunction, which will require the city officials to allow you to use the facilities under their control.

We have already seen the fruit from the decision in Lamb’s Chapel. As noted above, in Alabama the Lamb’s Chapel decision made it possible for an evangelistic event for teenagers to proceed in a local school facility. In Wisconsin, an organization that wanted to present a six-part series on the Christian heritage of our nation was also allowed to meet after the Lamb’s Chapel decisions came down. By using government facilities and inviting the public to attend meetings where our view is presented, we gain equal access to an important arena and marketplace where ideas compete for minds and hearts. This is where we need to be, carrying Christianity into the fray where it can go head-to-head with other world views and demonstrate its intellectual and practical superiority.

Am I allowed to start a Bible study at a state-owned youth center where many other group meetings are held?

That's a good question, and here is an easy answer to it: There are three very strong U.S. precedents established in the Supreme Court of the United States - Lamb's Chapel, Mergens, and Good News/Good Sports Club - all of which send a very clear message that you cannot treat religious meetings differently from other types of meetings. If a public location is open for community use, access cannot be denied to a Christian group.

Are churches allowed to conduct tent meetings in a city park, and are they required to get an amusement permit and pay an off-duty policeman for security?

First, you have to consider whether the place for the meeting is a public forum-that is, a place open and available for free speech. A long time ago, the Supreme Court said that city parks are one of those places appropriate for freedom of speech. And so, the answer is yes, you're allowed to have meetings in the city park. The preaching of the gospel, evangelistic outreach, is clearly protected speech under the First Amendment. They can require a permit, but I'm not so sure that you would fall under an amusement standard. The amusement standard is when you're going to have carnival rides and events, and the need for security is heightened in that situation. It may not be a bad idea to have an off-duty city policeman in the vicinity, anyway. It may not be a bad investment, to be honest with you.

Can a school district force a youth organization to hire a paid security guard in order to meet in their schools after hours?

If the school is applying that across the board to any group that would have 100 or more, then they certainly can apply it to the Bible club or your after-hours prayer group meetings. It's a neutral rule, it's being applied across the board, and that's generally for security. The primary reason they would apply this type of rule is this: school administrators want to know who's on campus after hours, and they want to make sure people don't linger on campus when the school's closed. In light of the campus violence we've seen over the last several years, it's a legitimate policy - so long as it's being enforced uniformly. They can do it if it's being enforced uniformly. I think you're going to have to figure out within the community how to raise the money to hire a security guard, because as long as it's being applied across the board, there's no constitutional problem with that type of policy. Religious groups get the same rights of access as anyone else. What you can't get are special rights, or special exemptions. If everyone else that has a group of 100 or more is going to have to have some type of security there, they certainly can enforce that policy on your group. Again, as long as it's being enforced uniformly, the school district is not violating the Constitution by having that type of policy.

Can Members of the Community or Organizations Use School Facilities for Religious Purposes?

YES! Members of the local community also have free speech rights in the school if the district rents school facilities during non-school hours. In other words, if the school district rents its facilities to non-school groups during non-school hours, then the school district has a constitutional duty to rent to religious speakers, such as a local church that wants to rent a facility for its annual Christmas pageant. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993). In Lamb's Chapel v. Center Moriches School District, the Supreme Court rejected the exclusion of religious speakers from public school facilities. Refusing to uphold a religious exclusion, the Lamb's Chapel Court stated that "the principle that has emerged from our cases 'is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.'" Id. at 394. Lamb's Chapel affirms the rights of religious persons to express their views publicly.

Can the church sponsoring our Little League team put a Christian message on a sign that is displayed along with other signs from other team sponsors at a city park?

In your particular case, we would argue that this is a public forum, a limited public forum, opened to sponsorship. They've opened an area for First Amendment activity-the display of the sign. If commercial businesses are being promoted, then you have the perfect right to advertise your church's name and what you stand for.

I helped plant a church that has been meeting on the campus of a public university for 2-1/2 years. Can they legally come in now and tell us we can no longer meet there?

If they allow others to access their facilities, they cannot legally close down a church meeting. When they say the church can no longer meet there, that is the equivalent of a government agency coming in and closing down a church worship service. That policy is unconstitutional just as it's written. You cannot take religious worship out from categories of protected free speech under the Constitution. Religious worship cannot be treated like pornography, which is exactly what you've got in a policy like that.

Is it illegal to pray, or read the Bible, or play Christian music while teaching a workout session at a public county correctional facility?

You are entitled to equal access to those facilities, and that includes the right to pray and to play praise songs or Christian music, if that's what you want to use as part of a workout routine. I've argued and won two cases involving equal access. The first case, called the Lamb's Chapel case, and more recently the Good News/Good Sports case - both dealt with equal access. In both cases, the Supreme Court has overwhelmingly said you can't have what's called "viewpoint discrimination." What that means is, you can't allow a variety of community groups to come in, yet deny one type of event because of its religious message. You have the right to have your meeting and to include a Bible study, prayer, or a moment of silence instead of a prayer. You have the right to decide what you want to have; this doesn't mean the government is endorsing whatever they don't censor. The government is neutral. That's part of the misunderstanding on the part of administration at the correctional facility. You also have the right to read the Bible to your class; the Bible is not to be treated like pornography. Apparently the staff at the correctional facility doesn't understand what the Supreme Court has meant now in four decisions: Lamb's Chapel, Mergens, Rosenberger, and most recently Good News/Good Sports. Four cases, all holding the same position: you cannot censor out a religious message from an otherwise available public forum. And that's what you've got here. On the one hand, you've got a forum that's available for a lot of people, and on the other hand, you've got a specific targeted exclusion, based on the religious message being delivered. Christianity is not off limits in the public venue. Whoever is running this facility does not understand what the law is.

Is it legal for the government to deny a Christian group access to grant money that's otherwise available, simply because the group is non-profit?

The reason churches and great organizations like Youth for Christ and others are given exemption from property tax is because they're contributing something positive to the community. Every community in the country recognizes that. As a general rule, you can't be disqualified for a grant from the federal or state government simply because you have a Bible study as part of your non-profit organization. As long as it's not mandatory and for the people you're trying to help, there shouldn't be a problem. A Bible study does not disqualify you from the ability to have a grant. Under the new laws that have been put in place -- specifically the Religious Land Use Protection Act (RLUPA) -- you clearly have the right to enjoy the same access to that property, and the same access to grant funds, as anyone else. And the fact that you're tax-exempt, and therefore will not be paying property taxes, is not a basis upon which you can be denied this kind of grant money or the right to operate. Exemptions from real estate taxes are given by local communities precisely because organizations like Youth for Christ and others give a benefit back to the community. It would be tragic if those property tax exemptions became obsolete because of the concern over revenue.

Is it legal to have a Bible study in a senior citizens center?

We've actually had a case out of the US Court of Appeals for the Tenth Circuit involving a Bible study at a community center for senior citizens, and we won that case. The Department of Housing and Urban Development (HUD) has guidelines for these facilities. Many of these kinds of facilities are run by HUD and other government agencies. There is no basis upon which you could be discriminated against in having a Bible study for the community or for those that attend. Separation of church and state is not a valid justification. That Bible study can take place for senior citizens without any problem.

Our church has asked to use our local public school auditorium for Sunday worship services. The school board says no. What do you think?

There really shouldn't be any problem in using these public facilities after the decision of the Supreme Court in the Good News/Good Sports case, which said that if there's an access policy that allows regular use of facilities by community based groups, that you cannot deny the same access to a church or a worship service. If they allow the Girl Scouts to meet, they shouldn't be denying the church to meet weekly as well. In fact under the Supreme Court's decision in Good News/Good Sports there's specific constitutional protections in place. And in a situation like this, it may be that the lawyers that represent the school district haven't caught up with where the law is yet. But the law is very clear now. It was a 6/3 decision overwhelmingly in favor of the religious based community group that wanted to use the public school facilities. The fact that it was worship taking place there did not bother six of the Supreme Court justices. So clearly the precedent is on your side here. Good News/Good Sports was an important victory, but there are still other cases out there like yours which we're litigating right now. Again--we're looking at a situation where as it stands right now-- we're seeing that the government agencies, the school boards, and community groups are going to have to give access to religious organizations to these facilities. It's what the law requires; it's been that way since 1993. It was certainly restated again unequivocally in 2001.