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• 9TH CIRCUIT COURT

FOR THE NINTH CIRCUIT

PATRICIA E. GENTALA; ROBERT A.
GENTALA,
Nos. 97-17062
Plaintiffs-Appellants-
97-17069
Cross-Appellees,
D.C. No.
v.
CV-97-00327-FRZ
CITY OF TUCSON,
OPINION
Defendant-Appellee-
Cross-Appellant.

Appeals from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding

Argued and Submitted
October 7, 1999--San Francisco, California

Filed April 20, 2000

Before: Joseph T. Sneed and Harry Pregerson,
Circuit Judges; David O. Carter,1 District Judge.

Opinion by Judge Carter;
Dissent by Judge Pregerson

SUMMARY 
 
The summary, which does not constitute a part of the opinion of the court, 
is copyrighted C 2000 by West Group. 
_________________________________________________________________

Individual Rights/Constitutional Rights

The court of appeals affirmed orders of the district court in
part and reversed in part. The court held that a municipality
violates a religious group's right to free-speech and free-
exercise of religion by denying it taxpayer funds to subsidize
an event expressly intended to benefit local Christians.

To encourage civic events and provide a budgetary mecha-
nism for accounting for the costs of in-kind services provided
for public activities, appellee City of Tucson established the
"Civic Events Fund." The Fund provides support for events
relating to the historical, cultural, and ethnic heritage of the
City and the nation, or that educate the public regarding
important issues. The services provided by the City included
use of parks, equipment, refuse containers, and street sweep-
ing. Operation of the Fund did not involve direct money pay-
ments to event sponsors: the City billed the Fund for the cost
of services provided, and the Fund would pay the City for
them.

As sponsors of the local observance of the National Day of
Prayer, appellants Patricia and Robert Gentala applied to the
Fund for reimbursement for the costs of city services. Their
application stated that the purpose of the event was to orga-
nize a gathering of Tucson Christians; that participants would
be led in prayer for a variety of non-sectarian concerns; and
that patriotic decorations and music would be included.

The Fund's policy statement precluded reimbursement for
events held in direct support of religious organizations. On
that basis, the Fund denied the Gentalas' reimbursement
request. The City Council upheld the Fund's decision.

The Gentalas sued the City, alleging that on its face and as
applied to their application, the Fund's exception violated the
Free Speech, Free Exercise, and Establishment Clauses of the
First Amendment. The Gentalas sought an injunction prohibit-
ing the City from excluding them and other religious groups
from eligibility for coverage of costs under the Fund.

The district court denied the Gentalas' motions for prelimi-
nary and permanent injunctive relief, concluding that the
City's actions did not violate the plaintiffs' free-speech rights,
and that funding of the National Day of Prayer activities
would have violated the Establishment Clause.

The Gentalas appealed. They contended that although their
event was presented from a Christian perspective, the Fund's
coverage of the costs of municipal services provided for the
event was not "direct support" of any religious organization.

[1] The principal evil from the government against which
the Free Speech Clause protects the citizenry is discrimination
on the basis of viewpoint when regulating expressive activi-
ties. This prohibition retains its vitality even when the govern-
ment has created the forum in which expressive activities
occur.

[2] The relevant forum is defined by the access sought by
the speaker. The Gentalas sought access to the Fund, not
merely to the City's park. Although the Fund was not a forum
in the physical sense, as a government-created source of fund-
ing to cover costs associated with engaging in behavior
deserving First Amendment protection, the Fund was a forum
within the meaning of the First Amendment.

[3] Forum analysis divides government property into public
fora, designated public fora, and nonpublic fora. Because the
Fund was not a source of funding for expressive activities
held in trust since time immemorial, it was not a traditional
public forum. Because the Fund was limited to certain topics
and certain speakers, and because it had been managed in a
selective manner, it could not be concluded that the City des-
ignated the Fund as a forum open to general expressive activ-
ity. The Fund was a limited public forum.

[4] In maintaining the boundaries and integrity of the Fund,
the City would of necessity engage in discrimination on the
basis of applicants' speech. However, in managing this forum,
the City's decisions to exclude speakers had to be reasonable
in light of the Fund's purposes. Any discrimination between
applicants on the basis of viewpoint was forbidden.

[5] While the Gentalas' event had sectarian elements, it
also had a civic character, and fit within the general subject
matter of events for which the Fund was created. The event
was publicized and organized in a manner consistent with the
Judeo-Christian tradition, and presented from a Christian per-
spective. A public prayer service conducted from such a per-
spective would support members of Jewish and Christian
religious organizations more than members of other faith tra-
ditions, or members of the public who belong to a non-
religious tradition. However, the minimal and diffuse benefits
from the event did not amount to a constitutionally impermis-
sible support of religion.

[6] Although reimbursement of costs was not direct support
of religion in a constitutional sense, it could not be concluded
that the City acted in bad faith when deciding that the event
fell within the Fund's exception. However, even if the exclu-
sion was reasonable, the Gentalas' application could not be
denied merely because it would have brought a religious per-
spective to an otherwise permissible conversation.

[7] Rejection of the application was impermissible view-
point discrimination in violation of the Free Speech Clause.
[8] Distinguishing between those who speak about religion
who are directly supporting a religious organization, and
those who speak about religion who are not, would always
require the City to discriminate on the basis of the speakers'
viewpoint.

[9] Insofar as the City sought to avoid entanglement with
religion when administering the Fund, its best opportunity for
doing so was to abandon attempts to distinguish between reli-
gious expression that directly supports a religious organiza-
tion, and religious expression that indirectly supports religion.

[10] The Fund did not have the primary effect of advancing
religion. Even if reimbursement of costs provided some sup-
port for theism over its opposite, or for Christianity over com-
peting world views, the support was neither substantial nor
direct enough to amount to advancement of religion. [11] The
mere conferral of benefits to a religious organization under an
otherwise neutral policy does not violate the Establishment
Clause. Even if the organization seeking coverage of costs
was a church, there would be no violation because there was
no direct money payment to a group engaged in religious
activity.

[12] That a government-subsidized event that remains open
to the public is organized for and by a particular religious
group is insufficient to create an Establishment Clause viola-
tion. [13] Only when state programs would provide benefits
that would allow the organization to pursue its sectarian goals
in an unfettered way on the government's dole or in the gov-
ernment's forum is the Establishment Clause possibly vio-
lated. Where the government does not make direct payments
to the organization, and maintains control over which activi-
ties will be subsidized, the government can ensure that only
activities that have a clear secular import will receive govern-
ment assistance.

[14] Whether private religious speech would be mistaken
for the speech of the government is a central inquiry under the
Establishment Clause. Without more, the presence of City
employees operating City equipment would not confer any
imprimatur of state approval.

[15] The district court based its determination that the Gen-
talas were unlikely to succeed on the merits on an erroneous
legal conclusion. Moreover, because the Gentalas' expressive
freedoms were violated as a result of the City's unconstitu-
tional activities, the Gentalas suffered an irreparable injury.

Judge's Pregerson dissented, concluding that the district
court got it right.

_________________________________________________________________

COUNSEL

Kevin H. Theriot, American Center for Law and Justice,
Lawrenceville, Georgia, for the plaintiffs-appellants-cross-
appellees.

Thomas J. Berning, City Attorney, Tucson, Arizona, for the
defendant-appellee-cross-appellant.

_________________________________________________________________

OPINION

CARTER, District Judge:

These appeals require us to navigate carefully the shoal-
infested channel between the Scylla of the First Amendment's
Free Speech Clause and the Charybdis of the First Amend-
ment's Establishment Clause. In attempting this task, we are
fully cognizant of Justice O'Connor's observation when
engaged in a similar judicial endeavor: "Reliance on categori-
cal platitudes is unavailing. Resolution instead depends on the
hard task of judging . . . . Such judgment requires courts to
draw lines, sometimes quite fine, based on the particular facts
of each case." Rosenberger v. Rector & Visitors of the Univ.
of Va., 515 U.S. 819, 847  (1995) (O'Connor, J., concurring).

FACTUAL BACKGROUND

This case arises from the City of Tucson's rejection of
Patricia and Robert Gentalas' application to the City's Civic
Events Fund for the coverage of costs for city services for
local observances of the National Day of Prayer held in one
of the City's public parks.2

The City established the Fund to encourage civic events
and provide a budgetary mechanism for accounting for the
costs of in-kind services provided by the City for certain civic
events. The Fund provides support for events "that celebrate
and commemorate the historical, cultural and ethnic heritage
of the City and the nation, or increase the community's
knowledge and understanding of critical issues, with the pur-
pose of improving citizens' quality of life; generate broad
community appeal and participation . . .; [or ] instill civic pride
in the City, state or nation." In-kind services provided by the
City include use of the parks' event equipment, refuse con-
tainers and street sweeping.

As the organizers of the local observance of the National
Day of Prayer, the Gentalas applied to the Fund for coverage
of the costs of city services. The event organized by the Gen-
talas was part of the annual observance of the National Day
of Prayer. See Lynch v. Donnelly, 465 U.S. 668, 677  (1984).
This event was established by a joint resolution of Congress
in 1952. Since 1952, each President has marked the Day with
a presidential proclamation. For the year in question, Presi-
dent Clinton and the City's mayor issued a proclamation con-
cerning the event. The Mayor's proclamation "clearly state[d]
how prayer and especially the observance of a national day of
prayer is part of the historical and cultural heritage of" the
City and the nation. United States Air Force personnel, pas-
tors from nine of the City's congregations, and almost one
hundred people attended the event. The Gentalas' application
stated that the participants would be led in prayer for various
concerns: improved relationships between different segments
of society; political leaders; law enforcement and emergency
services personnel; youth, families, neighborhoods and the
homeless; educators and schools. The application also stated
that the event would include patriotic decorations and music.
Thus, while the event had a strong sectarian character, as a
civic event capable of increasing the community's knowledge
and understanding of critical issues as well as generating
broad community interest, support and civic pride, the event
fell within the scope of events for which the Fund had been
created.

Prior to holding their event, the Gentalas submitted an
application for reimbursement of costs from the Fund to the
subcommittee which administers the Fund. After the event
had been mounted, the City Council reviewed the subcommit-
tee's rejection and upheld it. Both groups cited only the
Fund's explicit policy statement that "events held in direct
support of religious organizations" are not eligible for the pro-
vision of services and concerns about how the Constitution
regulates church-state relations in support of the rejection of
the Gentalas' application.

The Gentalas subsequently filed this action alleging that on
its face and as applied to their application the Fund's excep-
tion for "events held in direct support of religious organiza-
tions" violated the Free Speech, Free Exercise and
Establishment Clauses of the First Amendment.3 The Gentalas
sought to enjoin the City from excluding plaintiffs and other
religious groups from eligibility for coverage of costs under
the Fund. The district court denied the Gentalas' motions for
preliminary and permanent injunctive relief, concluding that
the City's actions did not violate the Gentalas' free speech
rights and that funding the National Day of Prayer activities
would have violated the Establishment Clause.
During the proceedings, the City moved to amend their
answer to add state-law defenses. The district court denied the
City's motion to amend their answer.

Both the Gentalas and the City have filed appeals challeng-
ing the district court's respective adverse rulings.

STANDARDS OF REVIEW

We review for abuse of discretion the district court's denial
of preliminary and permanent injunctive relief. See Roe v.
Anderson, 134 F.3d 1400, 1402 & n. 1 (9th Cir. 1998), aff'd,
Saenz v. Roe, 526 U.S. 489 (1999); Easyriders Freedom
F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1493 (9th Cir. 1996).
The district court abuses its discretion when it bases its deci-
sion on erroneous legal or factual conclusions. See Roe, 134
F.3d at 1402 n.1; Easyriders, 92 F.3d at 1493.

       [T]o obtain a preliminary injunction, the moving
       party must show either (1) a combination of probable
       success on the merits and the possibility of irrepara-
       ble injury or (2) that serious questions are raised and
       the balance of hardships tips in its favor. These two
       formulations represent two points on a sliding scale
       in which the required degree of irreparable harm
       increases as the possibility of success decreases.

Roe, 134 F.3d at 1402. To obtain a permanent injunction, the
moving party must demonstrate "the likelihood of substantial
and immediate irreparable injury and the inadequacy of reme-
dies at law." Easyriders, 92 F.3d at 1495 (internal quotation
and citation omitted). " `The loss of First Amendment free-
doms, for even minimal periods of time, unquestionably con-
stitutes irreparable injury.' " S.O.C., Inc. v. County of Clark,
152 F.3d 1136, 1148 (9th Cir.) (quoting Elrod v. Burns, 427
U.S. 347, 373 (1976)), amended by 160 F.3d 541 (9th Cir.
1998).

We also review for abuse of discretion the district court's
denial of leave to amend. See Bonin v. Calderon, 59 F.3d 815,
845 (9th Cir. 1995). Although there are strong public policy
justifications urging liberality in granting leave to amend,
"[f]utility of amendment can, by itself, justify the denial of a
motion for leave to amend." Id.

ANALYSIS

The Gentalas' Appeal

The Gentalas contend that the City's rejection of their
application for coverage of the cost of city services under the
Civic Events Fund violated their free-speech rights guaran-
teed by the First Amendment. In response, the City argues
both that there was not a free-speech violation and that even
if the Gentalas' free-speech rights were infringed, this was
justified by the City's compelling interest in avoiding an
Establishment Clause violation.

Free Speech/Public Forum Issue

[1] The Supreme Court's decision in Rosenberger guides
our resolution of the free-speech issues in this case. In Rosen-
berger, the Court reiterated that the principal evil from the
government against which the Free Speech Clause protects
the citizenry is discrimination on the basis of viewpoint when
regulating expressive activities. See Rosenberger, 515 U.S. at
829 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 391
(1992)); Perry Educ. Ass'n v. Perry Local Educators' Ass'n,
460 U.S. 37, 46  (1983)). This prohibition on viewpoint dis-
crimination retains its vitality even when government has cre-
ated the forum in which expressive activities occur. See id.;
see also DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ.,
196 F.3d 958, 969 (9th Cir. 1999).

As an initial matter, we must determine whether the
National Day of Prayer event amounted to expressive conduct
protected by the First Amendment's Free Speech Clause.
According to the Gentalas' application, they were inviting
people to gather in the park for a time of praise and worship
with singing and prayer. Such activity is speech within the
meaning of the First Amendment. See Capitol Square Review
& Advisory Bd. v. Pinette, 515 U.S. 753, 760  (1995); Widmar
v. Vincent, 454 U.S. 263, 265 n.2, 269 (1981).

Having concluded that the Gentalas were engaging in
speech within the meaning of the First Amendment, we must
next determine the nature of the forum to which they sought
access. See Cornelius v. NAACP Legal Defense & Educ.
Fund, Inc., 473 U.S. 788, 800  (1985); DiLoreto, 196 F.3d at
964. Before determining the forum's character, however, we
must clearly define the forum in question.

[2] "The relevant forum is defined by the access sought by
the speaker." See DiLoreto, 196 F.3d at 965 (citing Cornelius,
473 U.S. at 801). The parties and the district court have dis-
cussed the issues raised by this case as if both the City's parks
and the City's Civic Events Fund were relevant fora. The City
is correct in its assertion that the Gentalas were never denied
access to the public park. They were allowed to hold their
event. After having held their event, however, the Gentalas
appealed the subcommittee's rejection of their application for
cost-coverage of city services under the Fund to the full City
Council. Given this post-event activity, we conclude that the
Gentalas sought access to the Fund, not merely to the park.
Although the Fund is not a forum for speech in the physical
sense, as a government-created source of funding to cover
costs associated with engaging in behavior deserving First
Amendment protection, the Fund is a forum within the mean-
ing of the First Amendment. See Rosenberger, 515 U.S. at
830 (stating that a fund created by the University of Virginia
to cover the printing costs of student organizations' publica-
tions was "a forum more in a metaphysical than in a spatial
or geographical sense, but the same [First Amendment] prin-
ciples are applicable").

[3] " `Forum analysis divides government property into
three categories: public fora, designated public fora, and non-
public fora.' " DiLoreto, 196 F.3d at 964 (quoting Children of
the Rosary v. City of Phoenix, 154 F.3d 972, 976 (9th Cir.
1998), cert. denied, 119 S. Ct. 1804 (1999)); see also Perry
Educ. Ass'n, 460 U.S. at 45-46. Because the Fund is not a
source of funding for expressive activities held in trust since
time immemorial, we conclude that it is not a traditional pub-
lic forum. See Perry Educ. Ass'n, 460 U.S. at 45. Because the
Fund's implementing policy states on its face that the Fund is
limited to certain topics and certain speakers and because the
record developed by the parties demonstrates that the Fund
has been managed in a selective manner, we cannot conclude
that the City has designated the Fund as a forum open to gen-
eral expressive activity. See Lamb's Chapel v. Center Mori-
ches Union Free Sch. Dist., 508 U.S. 384, 391 -92 (1993);
Cornelius, 473 U.S. at 802; DiLoreto, 196 F.3d at 965. Fol-
lowing the Supreme Court's lead in Rosenberger, we con-
clude that the Fund is a limited public forum that has been
opened to support the expressive activities of certain groups
speaking about certain topics. See Rosenberger, 515 U.S. at
829; see also DiLoreto, 196 F.3d at 965, 967.4
The dissent argues, relying on National Endowment for the
Arts v. Finley, 118 S. Ct. 2168 (1998), that because the City
makes selective determinations when awarding reimburse-
ments under the Fund that the Fund is exempt from forum
analysis. The dissent's reliance on Finley is misplaced. The
policy being challenged in Finley was of a different character
than the policy being challenged in this case. As the Supreme
Court was careful to point out, the "decency" criterion in Fin-
ley was one of several criteria for the NEA to consider when
making funding decisions, see id. at 2175-76, whereas the
City's Fund renders any "event held in direct support of reli-
gious organizations" absolutely ineligible for reimbursement
of costs. Moreover, the nature of the challenges to the respec-
tive policies in Finley and this case are of a notably different
character. In Finley, the Supreme Court was considering a
facial challenge to the NEA's "decency" criterion. See id. at
2175, 2178. This is relevant for at least two reasons. First, the
burden on litigants pursuing a facial challenge is much heav-
ier than the burden on litigants pursuing an as-applied chal-
lenge. See id. at 2175. Second, even a policy which is
viewpoint-neutral on its face may be applied in a viewpoint-
discriminatory manner. The Court in Finley explicitly pointed
out that they were not considering "a situation where the
denial of a grant may be shown to be the product of invidious
viewpoint discrimination" because the litigants had brought a
facial challenge. See id. at 2178. In this case, however, we are
considering an actual denial by the City and we know the
motivation behind the City's decision. Even if we agreed with
the dissent's analysis that the City could have denied the Gen-
talas' application for a number of reasons under the Fund's
implementing policy, in actuality, the record shows -- and the
City has never contested -- that the application was denied
due to the religious character of the event for which the Gen-
talas were seeking reimbursement. These factors -- the abso-
lute bar for reimbursement of certain kinds of events in the
City's policy, the character of the Gentalas' challenge, and the
state of the record -- make this appeal more like Rosenberger
than like Finley.

[4] In maintaining the boundaries and integrity of the Fund,
the City will, of necessity, engage in discrimination on the
basis of the content of applicants' speech. In managing this
forum, however, the City's decisions to exclude speakers
must be reasonable in light of the Fund's purposes. See
Rosenberger, 515 U.S. at 829; DiLoreto, 196 F.3d at 965,
967. Thus, content-based discrimination is legitimate only if
conducted consistent with the Fund's purposes, whereas any
discrimination between applicants on the basis of viewpoint
is forbidden. See Board of Regents of the Univ. of Wis. Sys.
v. Southworth, No. 98-1189, 2000 WL 293217, at *10 (U.S.
Mar. 22, 2000); Rosenberger, 515 U.S. at 829-30; DiLoreto,
196 F.3d at 965, 967.5
[5] The Fund's implementing policy states that the Fund
has been created, in part, to "encourage and support [c]ivic
[e]vents that: celebrate and commemorate historical, cultural
and ethnic heritage of the City and the nation, or increase the
community's knowledge and understanding of critical issues,
with the purpose of improving citizens' quality of life; gener-
ate broad community appeal and participation; [or ] instill
civic pride in the City, state, or nation." While the Gentalas'
event obviously had sectarian elements, as previously
described, it also had a civic character and fits comfortably
within the general subject matter of events for which the Fund
was created.6

[6] The policy explicitly excludes those "events held in
direct support of religious organizations" and the City relied
upon this exemption when rejecting the Gentalas' application.
The Gentalas' application indicates that a free-will offering
was to be taken at the end of the event. Although such an
offering would probably be small in relation to the cost of
mounting the event,7 the offering might provide some degree
of financial support for the organizers of the event. The
requested reimbursement from the City's Fund, some $340 in
costs, is also a meager financial outlay. The record establishes
that the National Day of Prayer was publicized and organized
in a manner consistent with the Judeo-Christian tradition and
counsel for the Gentalas stated at oral argument that the
National Day of Prayer event was presented from a Christian
perspective. Thus, the event had a clear religious perspective
and we must acknowledge that a public prayer service con-
ducted from such a perspective would support members of
Jewish and Christian religious organizations more than mem-
bers of other faith traditions or members of the public-at-large
who belong to a non-religious tradition. We cannot conclude,
however, that the minimal and diffuse benefits from this event
amount to a constitutionally impermissible support of reli-
gion.

[7] Although we have concluded that reimbursement of the
event's costs under the Fund was not direct support of religion
in a constitutional sense, we cannot conclude that the City
acted in bad faith when deciding that the National Day of
Prayer event fell within the Fund's exception. See Cornelius,
473 U.S. at 808 ("The Government's decision to restrict
access to a nonpublic forum need only be reasonable; it need
not be the most reasonable or the only reasonable limita-
tion."). Even if the exclusion was reasonable, however, the
City could not reject the Gentalas' application based on their
viewpoint as speakers. See Rosenberger, 515 U.S. at 830;
DiLoreto, 196 F.3d at 969. In other words, the Gentalas'
application could not be denied merely because it would bring
a religious perspective to an otherwise permissible conversa-
tion. See Rosenberger, 515 U.S. at 831; Lamb's Chapel, 508
U.S. at 393-94.
As noted previously, the Supreme Court in Rosenberger
examined a fund established by the University of Virginia to
cover the printing costs for publications from approved stu-
dent groups. See Rosenberger, 515 U.S. at 824. The Univer-
sity excluded from its scheme those publications written by
groups engaging in "religious activities." Id. at 825. Wide
Awake Productions, a student group which published a maga-
zine "offer[ing] a Christian perspective on both personal and
community issues," was denied coverage under the policy. Id.
at 825-27. The Supreme Court concluded that the University's
denial of coverage was an unconstitutional form of viewpoint
discrimination. See id. at 831; see also Southworth, 2000 WL
293217, at *10. In reaching this conclusion, the Supreme
Court relied heavily on Lamb's Chapel. See Rosenberger, 515
U.S. at 830-32. In Lamb's Chapel, a local school board per-
mitted community groups to use its buildings after hours, but
denied access to a group wanting to show a film series "that
. . . would discuss . . . the undermining influences of the
media that could only be counterbalanced by returning to tra-
ditional, Christian family values." Lamb's Chapel, 508 U.S.
at 386-88.

The National Day of Prayer event was, in part, a civic gath-
ering drawing the community together to address issues of
community-wide concern -- e.g., homelessness, education,
law enforcement. The nature of the event fits within the gen-
eral purposes of the forum. Moreover, there is no indication
from the record that if a local public school wanted to hold a
fund-raiser or if a group of social service providers wanted to
hold a rally on behalf of homeless people that the City would
have denied their applications to the Fund.8 The Gentalas'
application was rejected because of their view that the most
relevant manner in which to address these important social
concerns was through the expressive acts of worship, singing
and prayer. "Religion may be a vast area of inquiry, but it also
provides, as it did here, a specific premise, a perspective, a
standpoint from which a variety of subjects may be discussed
and considered. The prohibited perspective . . . resulted in the
refusal" to provide access to the relevant forum. Rosenberger,
515 U.S. at 831.

The record also indicates that the City had approved an
application to the Fund by the Tucson Festival Society and
Carrillo School for a Las Posadas festival. The festival is a re-
enactment of a story from Christian folklore -- namely,
Joseph and Mary's search for lodging in Bethlehem prior to
the birth of Jesus. The City approved funding for this
"religious-related" event because it was "art" and was "not
held to directly support a religious organization. " Because the
Las Posadas festival re-enacts an event connected with the
Christian tradition, it would provide the same kind of diffuse
support for Christianity writ large as would the National Day
of Prayer event. Thus, the City decided that artistic expression
was a sufficiently indirect way of engaging a religious tradi-
tion -- and therefore an appropriate activity in the forum, but
that public prayer was too direct a way of engaging a religious
tradition -- and therefore an inappropriate activity in the
forum.

[8] Although we can sympathize with the difficult judg-
ment calls the City is required to make when reviewing appli-
cations to the Fund, we conclude that its rejection of the
Gentalas' application was impermissible viewpoint discrimi-
nation in violation of the Free Speech Clause of the First
Amendment. See Rosenberger, 515 U.S. at 829-831; Lamb's
Chapel, 508 U.S. at 392-94. Moreover, in light of our discus-
sion of the Las Posadas application, we conclude that distin-
guishing between those who speak about religion who are
directly supporting a religious organization and those who
speak about religion who are not will always require the City
to discriminate on the basis of the speakers' viewpoint. See
Board of Educ. of the Westside Community Schs. v. Mergens,
496 U.S. 226, 248, 253 (1990); Widmar, 454 U.S. at 272 n.11.

Establishment Clause Issue

The City contends that its rejection of the Gentalas' appli-
cation was justified in light of the City's compelling interest
in obeying the strictures of the First Amendment's Establish-
ment Clause.9 Following the Supreme Court's lead in Rosen-
berger, we reject the City's argument and conclude that
reimbursing costs for the Gentalas' event under the Fund
would not have violated the Establishment Clause. See Rosen-
berger, 515 U.S. at 839.

A majority of the Justices of the Supreme Court have never
agreed as to the precise meaning and relevance of the history
of the Establishment Clause. The Court has agreed, however,
that the Establishment Clause

       means at least this: Neither a state nor the Federal
       Government can set up a church. Neither can pass
       laws which aid one religion, aid all religions, or pre-
       fer one religion over another. Neither can force nor
       influence a person to go to or to remain away from
       church against his will or force him to profess a
       belief or disbelief in any religion. No person can be
       punished for entertaining or professing religious
       beliefs or disbeliefs, for church attendance or non-
       attendance. No tax in any amount, large or small, can
       be levied to support any religious activities or insti-
       tutions, whatever they may be called, or whatever
       form they may adopt to teach or practice religion.
       Neither a state nor the Federal Government can,
       openly or secretly, participate in the affairs of any
       religious organizations or groups and vice versa.

Everson v. Board of Educ. of Ewing TP, 330 U.S. 1, 15-16
(1947). At the same time, the Supreme Court has repeatedly
stated that government may acknowledge the role of religion
in the life of its citizenry and incorporate some religious
expression into public life. See Lynch, 465 U.S. at 674-78;
Marsh v. Chambers, 463 U.S. 783, 792  (1983). The "central
lesson" of the Supreme Court's Establishment Clause juris-
prudence "is that . . . governmental programs " must maintain
"neutrality towards religion." Rosenberger, 515 U.S. at 839.
On a number of occasions, the Court has concluded that gov-
ernmental programs which distribute benefits on religiously
neutral grounds do not run afoul of the Establishment Clause
merely because they provide incidental benefits to organiza-
tions that seek to engage in religious expression. See id.; Cap-
itol Square, 515 U.S. at 762-63; Widmar, 454 U.S. at 273-74.

When determining whether the relationship between reli-
gious expression and the government is permissible under or
violative of the Establishment Clause, "it [is ] useful to inquire
whether the challenged law or conduct has a secular purpose,
whether its principal or primary effect is to advance or inhibit
religion, and whether it creates an excessive entanglement of
government with religion." Lynch, 465 U.S. at 679 (citing
Lemon v. Kurtzman, 403 U.S. 602, 612  (1971)). At the same
time, we are not bound "to any single test or criterion in this
sensitive area." Id.

[9] The City's Fund, which exists to support and encourage
events celebrating the history and culture of the City's resi-
dents, undeniably serves a secular interest. See Lamb's
Chapel, 508 U.S. at 395; Widmar, 454 U.S. at 271. Insofar as
the City seeks to avoid entanglement with religion when
administering the Fund, its best opportunity for doing so is to
abandon attempts to distinguish between religious expression
that directly supports a religious organization and religious
expression that indirectly supports religion. See Widmar, 454
U.S. at 272 n.11.

[10] The City's Fund also does not have the primary or
principal effect of advancing religion. The Supreme Court has
concluded that a state university's provision of a classroom to
a student Bible study club for its meetings constituted only
negligible aid for such devotional exercise and thus was not
constitutionally impermissible. See Widmar, 403 U.S. at 273.
In Lynch, Chief Justice Burger, writing for the majority, con-
cluded that a nativity scene, while religiously significant by
itself, when placed by the city government among secular
symbols such as "candy-striped poles . . ., carolers, [and] cut-
out figures representing such characters as a clown, an ele-
phant, and a teddy bear" in the business district of the City of
Pawtucket, Rhode Island, did not substantially support any
religion in a constitutionally problematic manner. Lynch, 465
U.S. at 671, 687.

       The dissent asserts some observers may perceive that
       the City has aligned itself with the Christian faith by
       including a Christian symbol in its display and that
       this serves to advance religion. We can assume,
       arguendo, that the display advances religion in a
       sense; but our precedents plainly contemplate that on
       occasion some advancement of religion will result
       from governmental action. The Court has made it
       abundantly clear, however, that "not every law that
       confers an `indirect,' `remote,' or `incidental' benefit
       upon [religion] is, for that reason alone, constitution-
       ally invalid." Committee for Public Educ. & Reli-
       gious Liberty v. Nyquist, 413 U.S. 756, 771  (1973).

Id. at 683. Similarly, here, even if the City's reimbursement
of costs for the National Day of Prayer event provided some
support for theism over its opposite, or for Christianity over
competing world views, the support provided by the City was
neither substantial nor direct enough to amount to advance-
ment of religion under the Supreme Court's Establishment
Clause jurisprudence.

In more recent cases involving private religious speech in
government-created fora, the Supreme Court has focused on
whether the religious expression occurring in the forum has
been endorsed or favored by the government when determin-
ing whether there is an Establishment Clause violation. See
Capitol Square, 515 U.S. at 762-65; Rosenberger, 515 U.S. at
839-40; Lamb's Chapel, 508 U.S. at 393. In Rosenberger, the
most legally and factually analogous case to the one before
us, the Court reviewed the constitutionality of the University
of Virginia's refusal to cover the printing costs of a student
publication, based on the publication's religious perspective,
due to the University's concern that covering the costs would
violate the Establishment Clause. See Rosenberger, 515 U.S.
at 822-23. The Court concluded that the University would not
violate the Establishment Clause by covering the publica-
tion's printing costs when using "neutral criteria and even-
handed policies" to determine which applicants would have
their costs covered. See id. at 839, 845-46.

[11] The first distinction between Rosenberger and the
present case urged by the City is that the publication in
Rosenberger was not produced by a "religious organization,"
see id. at 826 & 844, and that the event for which the Gentalas
sought in-kind services was. Assuming that the City is correct
that the organization responsible for managing the National
Day of Prayer is a religious organization, we conclude that
this factual difference is an insufficient basis for distinguish-
ing Rosenberger. In Widmar, the Supreme Court reviewed the
University of Missouri at Kansas City's decision to forbid "an
organization of evangelical Christian students from various
denominational backgrounds" from meeting in "facilities gen-
erally available for activities of registered student groups."
Widmar, 454 U.S. at 264-65 & n.2 (1981). The Supreme
Court dismissed the University's concerns about an Establish-
ment Clause violation for its provision of meeting space for
the student group acknowledging that it was "possible -- per-
haps even foreseeable -- that religious groups will benefit
from access to University facilities." Id.  at 273. Widmar dem-
onstrates that the mere provision of services or conferral of
benefits to a religious organization under an otherwise neutral
policy does not, without more, violate the Establishment
Clause. See Rosenberger, 515 U.S. at 839; Widmar, 454 U.S.
at 273-74. Moreover, the Rosenberger Court itself stated that
even if the organization seeking coverage of printing costs
from the University of Virginia was a "church, " there would
be no Establishment Clause violation because the scheme at
issue was not making "direct money payments to an institu-
tion or group that is engaged in religious activity. " Rosenber-
ger, 515 U.S. at 842 (emphasis added).

[12] In a similar vein, the dissent relies on the Gentalas'
original application for reimbursement from the Fund, and
attachments thereto, which state that the National Day of
Prayer event was being organized for "Tucson Christians."
The district court stated that the National Day of Prayer event
was open to the public and nothing in the record or the com-
ments by the City Council which reviewed the Gentalas'
application after the event had been held indicates that the
event excluded non-Christians from the event. The fact that a
government-subsidized event which remains open to the pub-
lic is organized for and by a particular religious group is
insufficient to create an Establishment Clause violation. See
Widmar, 454 U.S. at 265 n.2 (noting that a Christian group's
meetings were "open to the public"). Finally, the dissent notes
that all the speakers at the event were Christians to support
the charge of an Establishment Clause violation. In Rosenber-
ger, however, the publication which the University of Vir-
ginia refused to subsidize -- a decision the Supreme Court
rebuked -- was a magazine with an explicit and obvious
Christian perspective on the issues discussed. See Rosenber-
ger, 515 U.S. at 825-26.

In Widmar and Rosenberger, the Supreme Court was much
less concerned about the religious identity or message of the
speakers being subsidized by the state than it was about the
nature of subsidy being offered. The Court's concern in these
cases is whether the support offered by the state is part of a
neutral program available to a large range of speakers or
whether it is a program designed and administered to further
religious interests in some direct way. The City and the dis-
sent would have us read the Establishment Clause in a way
that forbids religious groups and religious speakers from par-
ticipating in and taking advantage of neutral government pro-
grams available to citizens motivated by non-sectarian
concerns. Such a theory of the Establishment Clause implic-
itly denigrates those citizens who seek to operate in the public
realm and engage the larger culture in light of their religious
convictions and fails to take seriously the constitutional val-
ues enshrined in the Free Speech and Free Exercise Clauses.

The Rosenberger Court focused extensively on whether the
payments from the University of Virginia's fund were being
made directly to the student organization. See id. at 842-43.
We agree with the City and the district court that the Rosen-
berger Court was careful to explain that its conclusion might
have been different if the scheme under review had involved
"a tax levied for the direct support of a church, " id. at 840, if
the money available could be used for "unlimited purposes,"
id. at 841, or if the program made "direct money payments to
. . . a group that is engaged in religious activity, " id. at 842.
The City's own evidence, however, demonstrates that the
Fund is not the kind of policy about which the Rosenberger
Court expressed suspicion. According to a management ana-
lyst from the City's Department of Budget and Research,
money from the Fund is never paid directly to the event spon-
sors -- event sponsors request services from the City; the rel-
evant City departments submit billing statements to the Fund
instead of the event sponsors; the costs of the services are
charged against the Fund. As its implementing policy states,
the Fund is "a budgetary means of detailing the costs City
departments incur providing in-kind support to Civic Events."
Moreover, the City maintains control over what services will
be covered by the Fund and the amount the Fund will be
charged for these services. Although the City's absorption of
costs for in-kind services through the Fund clearly provides a
benefit to the National Day of Prayer event, this is not a case
where the City "is making direct money payments to an insti-
tution or group that is engaged in religious activity." Id. at
842-43. Moreover, insofar as the in-kind services made avail-
able under the Fund were the provision of physical-plant
facilities, the Supreme Court has concluded that such services
are " `incidental' benefits" which can be provided to religious
groups by the government without violating the Establishment
Clause. See Widmar, 454 U.S. at 273.

The City also argues that this case is different from Rosen-
berger because the Fund is created through general revenue
taxes and the printing-cost fund in Rosenberger  was created
through the assessment of student fees. The Supreme Court
did state in Rosenberger that its decision "cannot be read as
addressing an expenditure from a general tax fund. " Rosen-
berger, 515 U.S. at 841. While this is a close question, we
conclude that the City presses this difference as a formal dis-
tinction whereas the Court used it as a functional one. Both
student-fee and general-tax assessments are mandatory on the
relevant population. See id. at 840 (treating the student-fee as
a mandatory assessment). Thus, it cannot be the mandatory
character of a general tax that would give rise to different
considerations under the Establishment Clause. A plurality of
the Court distinguished between a student fee and a general
tax based on the limited purposes for which the student fees
could be used and the neutrality of the program under which
the student fees were distributed. See id. at 840-41. Given that
the Fund was used for a limited purpose, that the City main-
tains a great deal of discretionary control over the Fund, and
that the Fund is not administered to favor religion, we con-
clude that the Fund is more like the student-fee generated
fund in Rosenberger than a general-tax generated fund.10

[13] The Supreme Court's concern about direct payments
to religious organizations and their treatment of the student-
fee/general-tax distinction provides a larger perspective on the
underlying rationale of Rosenberger. The Court has acknowl-
edged in Widmar, Mergens, and Lamb's Chapel that programs
of the state which provide benefits to groups on a neutral
basis may benefit religious groups or religious perspectives
when the relevant group meets the criteria of the program. In
Rosenberger, the Court once again articulated its view that the
Establishment Clause is not violated when religious groups
happen to benefit from programs which are, by all accounts,
neutral as to religion. See Rosenberger, 515 U.S. at 839. Only
where the programs would provide in-kind or financial bene-
fits which would allow the religious organization to pursue its
sectarian goals in an unfettered way on the government's dole
or in the government's forum is the Establishment Clause
possibly violated. Where, as in Rosenberger and as with the
Fund, the government does not make direct payments to the
organization and maintains control over which activities will
be subsidized, the government can ensure that only those
activities by sectarian groups which have a sufficient secular
import will receive government assistance. Allowing religious
groups to participate as beneficiaries of otherwise neutral pro-
grams fosters the nation's commitment to freedom of expres-
sion and to religious liberty without raising the specter of a
state-sanctioned or state-funded church, which was the histor-
ical inspiration of the Establishment Clause. See Lynch, 465
U.S. at 678.

[14] Finally, the Rosenberger Court noted that "[t]he Uni-
versity has taken pains to disassociate itself from the private
speech involved in this case." Rosenberger, 515 U.S. at 841.
Whether private religious speech would be mistaken for the
speech of the government is a central inquiry under the Estab-
lishment Clause. See id.; Widmar, 454 U.S. at 274. The City
and the district court relied on the presence of City employees
operating lighting and sound equipment to establish that the
National Day of Prayer event could be mistakenly interpreted
as the speech of the City. In light of Widmar' s teaching that
allowing religious groups to meet on campus is insufficient to
"confer any imprimatur of state approval," we conclude that
the presence of City employees, without more, does not create
such an imprimatur. See Widmar, 454 U.S. at 274 & n. 14; see
also Mergens, 496 U.S. at 249-50, 253.11
The record also demonstrates, however, that any event hav-
ing costs covered by the Fund must "acknowledge through
event advertising and an announcement during [the ] event that
the City has contributed services to the event." In Capitol
Square, 515 U.S. at 763, a plurality of the Court rejected the
government's argument that a cross erected by a private group
and placed in close "proximity to the seat of government"
would violate the Establishment Clause because it "may pro-
duce the perception that the cross bears the [government's]
approval." The plurality stated that government endorses reli-
gious expression in violation of the Establishment Clause only
when the government speaks for itself or manages a forum in
favor of private religious expression. See id.  at 764. The plu-
rality observed that "it is no violation [of the Establishment
Clause] for government to enact neutral policies that happen
to benefit religion." Id. While the concurring Justices gave a
greater role to the conclusions of a reasonable observer in
determining whether the government had endorsed the
expression of a private speaker than the plurality, see id. at
777 (O'Connor, J., concurring) and 784-86 (Souter, J., con-
curring), they also rejected the government's Establishment
Clause argument observing that the city could require that a
sign be placed on or near the cross explaining that the city did
not endorse the expression of the private speaker, id. at 776
(O'Connor, J., concurring) and 784 (Souter, J., concurring).
The National Day of Prayer event was not the expression of
the City itself and there is no allegation that the Fund was
managed in a way that discriminated in favor of religious
speech. The City maintained control over the content of the
statement in the event's advertisement and could have modi-
fied it to decry any endorsement by the City of the event's
content. Thus, we agree with the district court that the adver-
tisement requirement is insufficient to demonstrate that the
City endorsed the expression of the Gentalas. See id. at 764.

[15] Because we have concluded that the City engaged in
viewpoint discrimination in violation of the First Amendment
when rejecting the Gentalas' application to the Fund and that
the exception for events which directly support religious orga-
nizations is unconstitutional on its face, and that the Establish-
ment Clause does not provide a compelling interest justifying
that discrimination, it is now apparent that the district court
based its determination that the Gentalas were unlikely to suc-
ceed on the merits of this case on an erroneous legal conclu-
sion. See Roe, 134 F.3d at 1402; Easyriders, 92 F.3d at 1493.
Moreover, because the Gentalas' expressive freedoms were
violated as a result of the City's unconstitutional activities, the
Gentalas suffered an irreparable injury. See S.O.C., 152 F.3d
at 1148.

Accordingly, we reverse the district court's denial of the
Gentalas' motions for preliminary and permanent injunctions
and we remand for further proceedings.

The City's Cross-appeal

The City has also filed a cross-appeal contending that the
district court abused its discretion by denying its motion for
leave to amend its answer to assert a defense under the Ari-
zona constitution. In Widmar, the Supreme Court concluded
that Missouri's state constitutional defenses were insuffi-
ciently compelling to override free-speech interests protected
by the Federal Constitution. See Widmar, 454 U.S. at 276.
Because we have concluded that the City's denial of the Gen-
talas' application would have violated the Free Speech
Clause, we conclude that the City's proposed amendment
would have been futile and that the district court did not abuse
its discretion by denying it leave to amend its answer. See id.;
Bonin, 59 F.3d at 845.

Accordingly, we affirm the district court's denial of the
City's motion for leave to amend its answer.

CONCLUSION

While the idea of the government subsidizing a public
prayer service raises obvious Establishment Clause concerns,
the idea of excluding religious speakers from neutral govern-
ment programs because of their identity and their message
raises equally compelling Free Speech and Free Exercise
questions. These principal guarantees of the First Amendment
require the government to juggle conflicting obligations
toward its citizens. On the one hand, the Establishment Clause
obligates government to inspect vigilantly its practices and
policies to ensure that they do not create the impression that
government is endorsing or favoring religion or any form of
religious expression. On the other hand, the Free Speech and
Free Exercise Clauses require the government to monitor
carefully its policies and practices to ensure that they do not
unnecessarily trammel on individuals' opportunities to engage
in expressive conduct, especially expressive conduct which
stems from religious faith and belief. As much as we would
like to provide local, state and national governmental entities
with bright lines and simple tests to simplify the task of mak-
ing decisions in this complex and politically charged area,
drawing exact lines and articulating formulaic tests is belied
by the purposes of the First Amendment guarantees them-
selves. See Lynch, 465 U.S. at 678-79.

We do, however, offer some general guidance to the City
of Tucson and other governmental decision-makers based on
our examination of this appeal and our investigation of the
relevant Supreme Court decisions in this area. Where the gov-
ernment has created a forum for expressive activities, and a
private speaker meets the criteria for access to the forum, the
speaker cannot be excluded merely because the speaker's
expression addresses religion or adopts a religious perspective
on an otherwise permissible topic. In addition, where the gov-
ernmental forum includes the provision of financial subsidies
or in-kind services, as long as those services are provided to
all speakers in the forum on a religiously neutral basis, provi-
sion of such subsidies or services to a speaker with a religious
perspective will not violate the Establishment Clause.

Our resolution of the issues in a manner different from the
City of Tucson and the district court should not be construed
as to cast any doubt that the City and the court took their obli-
gations seriously and carefully considered their conclusions.
After reviewing the particular facts of this appeal, we have
merely drawn the lines between the guarantees of the Free
Speech and Establishment Clauses in a different fashion than
did the City and the district court.

The City shall bear the costs on appeal.

AFFIRMED in part, REVERSED in part, and
REMANDED.
Volume 2 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA E. GENTALA; ROBERT A.
GENTALA,
                                                      Nos. 97-17062
Plaintiffs-Appellants-
                                                           97-17069
Cross-Appellees,
                                                      D.C. No.
v.
                                                      CV-97-00327-FRZ
CITY OF TUCSON,
                                                      OPINION
Defendant-Appellee-
Cross-Appellant.

Appeals from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding

Argued and Submitted
October 7, 1999--San Francisco, California

Filed April 20, 2000

Before: Joseph T. Sneed and Harry Pregerson,
Circuit Judges; David O. Carter,1 District Judge.

Opinion by Judge Carter;
Dissent by Judge Pregerson

PREGERSON, Circuit Judge, dissenting:

I dissent. The district judge got it right. Taxpayer funds
may not be used to support a religious organization. And that
is undisputedly what Appellants' organization is -- a reli-
gious organization. See Appendix at 3, 5.

As the majority opinion notes, resolution of cases like this
one "depend[ ] on the hard task of judging." See supra at
4226 (quoting Rosenberger v. Rector & Visitors of the Univ.
of Virginia, 515 U.S. 819, 847  (1995) (O'Connor, J., concur-
ring)). Indeed, "[s]uch judgment requires the court to draw
lines, sometimes quite fine, based on the particular facts of
each case." Id. (emphasis added). The facts of this case are
crucial and should not be diluted.

Appellants' organization, the Tucson National Day of
Prayer Committee, applied for financial support from a fund
largely consisting of taxpayer money for an event whose
stated purpose was to "organize an annual gathering of Tuc-
son Christians." See Appendix at 3, 5. Appellants did not
organize a National Day of Prayer for all Tucson residents of
all faiths; their event was for Tucson Christians only. See  id.
Moreover, Appellants' application for funding clearly stated
that an individual's membership in their organization, the
Tucson National Day of Prayer Committee, would be termi-
nated if the individual would not "pledge " to the Christian
belief. Id. In fact, at no time during oral argument or in their
briefs on appeal have Appellants denied that their organiza-
tion is a "religious organization."

The constitutionality of the congressionally established
National Day of Prayer is not at issue here. Appellants' event,
for "Tucson Christians," should not be confused with the
national event that was created by congressional resolution in
1952. The language of the congressional resolution indicates
that Congress, in declaring a "National Day of Prayer,"
intended the day to be a day for all Americans, of all faiths.

As one representative noted, "[n]o single religious group can
claim ownership or control of the National Day of Prayer;
rather, it truly belongs to all Americans who seek divine guid-
ance for themselves and for the country." 134 Cong. Rec.
H2761-02 (May 12, 1988) (statement of Rep. Dymally).

Thus, this case is not about the constitutionality of the
National Day of Prayer. The only issue presented in this case
is whether the City of Tucson violated the Constitution by
denying Appellants taxpayer funds to subsidize the cost of
their event. Because I believe the City acted clearly within the
bounds of the Constitution, I would affirm the well-reasoned
decision of the district court.

I

Appellants are active sponsors and organizers of the Tuc-
son National Day of Prayer. Appellants requested permits and
funding from the City of Tucson ("the City") to hold the event
in the City's Demeester Outdoor Performance Center
("Demeester bandshell"). Appellants obtained the necessary
permits and the event was held as planned, but the City denied
Appellants' request for funding. As a result, Appellants' orga-
nization had to pay approximately $340 to rent equipment
used for production of the event.

The City allows members of the public to use its parks for
a wide variety of purposes. The Demeester bandshell is
located in Tucson's Reid Park. Pursuant to Tucson Code sec-
tions 21-14 and 21-16, specific fees are charged for the use of
event equipment, park bandshells, and other facilities owned
by the City. Grants are available from the City's Civic Events
Fund, on a limited basis, to help subsidize the cost of civic
events. The Civic Events Fund consists of City money from
the general fund appropriated by the City's Mayor and Coun-
cil each year. The source of the funds includes tax revenue,
user fees, and other sources of recurring and non-recurring
revenue. Sponsors of events at Reid Park may request a grant
from the Civic Events Fund through the City's Civic Events
Subcommittee ("Subcommittee").

For the 1997 Tucson National Day of Prayer, the Appel-
lants obtained permits to hold the prayer event in the Deme-
ester bandshell. The event was carried on as planned, and
Appellants do not allege that the City's actions impeded free
speech at the event in any way. Rather, Appellants allege that
the City discriminated against the organization by refusing to
support the Tucson National Day of Prayer financially with
funds from the Civic Events Fund. They are mistaken.

The Civic Events Fund exists to encourage and support
civic events that celebrate the City's heritage, increase knowl-
edge and understanding of issues that improve citizens' qual-
ity of life, generate community appeal and participation,
contribute to tourism, or are otherwise identified as unique
community events. A number of conditions must be met for
an event to be eligible for City support. These conditions,
which are listed in the City's "Civic Event Policy Statement
and Evaluation Criteria" ("Policy") include: (1) the event
must be sponsored by a non-profit organization or by individ-
uals conducting the event on a non-profit basis; (2) the event
must be open to the public and cannot discriminate against
persons in any manner; and (3) the event sponsor must main-
tain liability insurance, maintain a financial accounting of the
event, and acquire necessary permits from the City. The Pol-
icy further indicates that "events held in direct support of reli-
gious organizations" are not eligible for funding from the
Civic Events Fund.

The City does not automatically award grants to all eligible
events pursuant to the City's Civic Event Policy. Once the
Subcommittee determines that an event is "eligible" for fund-
ing, the Subcommittee, using "Evaluation Criteria," assesses
the event to determine whether it is one that the City will co-
sponsor. To determine whether an event should receive fund-
ing, the City considers a number of factors including: (1) the
purpose and objectives of the event; (2) the extent to which
the event generates broad community appeal and participa-
tion; (3) the event's need for support; and (4) the event's abil-
ity to obtain financial support from other public and private
sources. In the past the City has refused to fund a number of
non-religious events as well as events that the Subcommittee
determined were "in direct support of religious organiza-
tions." On the other hand, the City has funded events spon-
sored by religious organizations that did not directly support
religious organizations. For example, the City provided fund-
ing for a fishing clinic for disabled children that was co-
sponsored by the Aid Association for Lutherans.

In this case, Appellants' event was designed to directly
benefit their religious organization. Although Appellants
argued that members of all faiths could have participated in
the event, according to Appellants' own application,1 only
those who "pledge" to the Christian belief could participate as
members of their organization.2 See Appendix at 5. Indeed,
the Appellants' application for funding declared that the pur-
pose of the event was to "organize an annual gathering of
Tucson Christians to observe the National Day of Prayer." Id.
at 3,5. After reviewing the application, the Subcommittee
refused to fund the event because it would directly support a
religious organization.3

The majority finds that the City's refusal to fund the Tuc-
son National Day of Prayer violated the First Amendment. I
disagree for several reasons. First, the Civic Events Fund is
not a limited public forum as the majority asserts. In fact, the
majority's analysis of this case using "forum doctrine" is not
appropriate given the nature of the Civic Events Fund. Sec-
ond, the majority opinion disregards Supreme Court precedent
which establishes that there is an important distinction
between a government's refusal to fund protected activity and
a government's actual denial of a person's constitutional
rights. See e.g., National Endowment for the Arts v. Finley,
118 S. Ct. 2168, 2179 (9th Cir. 1998); Rust v. Sullivan, 500
U.S. 173, 193 (1991). Third, the City has a compelling state
interest for excluding events that are "in direct support of reli-
gious organizations" from funding eligibility -- compliance
with the Establishment Clause. Accordingly, I would con-
clude that the City did not violate the Constitution when it
refused to co-sponsor an event, that intended to "organize an
annual gathering of Tucson Christians," using taxpayer funds.
II

This is not a case involving the denial of "equal access" to
City facilities; rather, it simply involves the denial of taxpayer
funding. If the City had denied Appellants access to the
Demeester bandshell, which is a traditional public forum, this
would be a different case. But Appellants were not denied
access to the bandshell. Thus, their Free Speech claim can
succeed only if they can demonstrate that the Civic Events
Fund is a type of forum protected by the First Amendment.

The majority contends that the Fund is a limited public forum4
and that the City's refusal to fund events that directly support
religious organizations constitutes viewpoint discrimination. I
disagree. The majority's analysis of this case using forum
doctrine is not appropriate because the Civic Events Fund is
not a forum at all. In addition, the Supreme Court case which
the majority urges is controlling, Rosenberger v. Rector &
Visitors of the Univ. of Virginia, is distinguishable.

A. The Civic Events Fund is Not a Forum.

The Supreme Court has identified three types of fora: the
traditional public forum, the designated public forum, and the
nonpublic forum. See Arkansas Educ. Television Comm'n v.
Forbes, 118 S. Ct. 1633, 1641 (1998). As explained in For-
bes, if governmental property is not a traditional public forum
or a designated public forum, it is either a nonpublic forum or
is not a forum at all. See id. at 1641. I would find that Civic
Events Fund is not a forum at all: (1) because the City's
administration of the Civic Events Fund necessarily requires
"editorial discretion," and (2) when "government appropriates
public funds to promote a particular policy of its own it is
entitled to say what it wishes." Rosenberger , 515 U.S. at 833.

The Court has recognized that when a government's admin-
istration of public property requires "editorial discretion," it
should not be subject to review to determine if it is engaging
in viewpoint discrimination. See Forbes, 118 S. Ct. at 1639-
40; Alan E. Brownstein, Alternative Maps for Navigating the
First Amendment Maze, 16 Const. Comment. 101, 135
(1999); see also Finley, 118 S. Ct. at 2184 (Scalia, J., concur-
ring); Fordham Univ. v. Brown, 856 F. Supp. 684, 701-02
(D.D.C. 1994). The Supreme Court's examples of such dis-
cretionary decisions include: a university's selection of a
commencement speaker, a public institution's selection of
speakers for a lecture series, or a television broadcaster's pro-
gramming selections. See Forbes, 118 S. Ct. at 1639. In For-
bes the Court explained that these actions "by [their] nature
will facilitate the expression of some viewpoints instead of
others." Id.; see also Chicago ACORN v. Metropolitan Pier
and Exposition Auth., 150 F.3d 695, 701 (7th Cir. 1998) (not-
ing that "[w]henever government is in the business of speech,
whether it is producing television programs . . . or making
grants . . . the exercise of editorial discretion is inescapable")
(emphasis added). Consequently, simply because a govern-
ment subsidy program serves some expressive purpose, gov-
ernment selectivity in funding private speech to further that
purpose does not create a forum for First Amendment pur-
poses. See Finley, 118 S. Ct. at 2183-85 (Scalia, J., concur-
ring) (stating that the First Amendment "has no application to
funding"); Brownstein, 16 Constit. Comment. at 134-35.
Thus, forum doctrine and its prohibition against viewpoint
discrimination is not applicable here.5 
Moreover, the grant program in the present case is analo-
gous to the grant program in Finley, which the Supreme Court
concluded was not a limited public forum. See 118 S. Ct. at
2179. In Finley, the issue was whether the statute, requiring
the National Endowment for the Arts ("NEA") to consider
"decency" when awarding grants, violated the First Amend-
ment. See id. at 2178-79. In analyzing the NEA grant pro-
gram, the Court did not apply forum doctrine. See id. The
Court explained that such analysis was not appropriate
because when the government awards NEA grants, it "does
not indiscriminately `encourage a diversity of views from pri-
vate speakers.' " Id. at 2178 (distinguishing Rosenberger).
Consequently, the Court noted that the subjective and compet-
itive grant process in Finley was significantly different from
limited public forum cases because those cases involved
"comparably objective decisions on allocating public benefits,
such as access to a school auditorium or a municipal theater."
Id. (distinguishing Rosenberger and Lamb's Chapel v. Center
Moriches Union Free School Dist., 508 U.S. 384 (1993)).
Consequently, the Court concluded that the grant process in
Finley was not a limited public forum and that the statute did
not violate the First Amendment.

Like the grant process at issue in Finley, the City of Tucson
did not create the Civic Events Fund to "indiscriminately
`encourage a diversity of views from private speakers.' " Fin-
ley, 118 S. Ct. at 2178 (quoting and distinguishing Rosenber-
ger, 505 U.S. at 834). And similar to the program in Finley,
the process of awarding grants in this case is not an "objec-
tive" process. See Finley, 118 S. Ct. at 2178 (distinguishing
selective grant process in Finley from Lamb's Chapel and
other cases that involved "comparably objective decisions on
allocating public benefits, such as access to a school audito-
rium or a municipal theater"). The Subcommittee in the pres-
ent case evaluates organizations' applications for funding and
chooses which events to fund based on a number of factors.
As noted above, not all eligible events receive financial sup-
port from the Civic Events Fund. Accordingly, because the
City did not create the Civic Events Fund to "indiscriminately
`encourage a diversity of views from private speakers,' " anal-
ysis under the forum doctrine is not appropriate. Finley, 118
S. Ct. at 2178.

Additionally, in concluding that the Civic Events Fund is
a limited public forum, the majority disregards the critical dis-
tinction between a government's decision not to fund pro-
tected activity and the actual denial of constitutional rights.
See Regan v. Taxation With Representation of Wash. , 461
U.S. 540, 549 (1983) (the government's "decision not to sub-
sidize the exercise of a fundamental right does not infringe on
that right"); Fordham, 856 F. Supp. at 702. Notably, the
Supreme Court has repeatedly and forcefully emphasized this
distinction. See e.g., Finley, 118 S. Ct. at 2179 (1998); Rust
v. Sullivan, 500 U.S. at 193; Regan, 461 U.S. at 549; Maher
v. Roe, 432 U.S. 464, 475  (1977). As the Court recently
explained in Finley, "although the First Amendment certainly
has application in the subsidy context, we note that the Gov-
ernment may allocate competitive funding according to
criteria that would be impermissible were direct regulation of
speech or a criminal penalty at stake." 118 S. Ct. at 2179.
Simply put, the government has "no obligation to fund the
exercise of constitutional rights." Tipton v. Univ. of Hawaii,
15 F.3d 922, 926 (9th Cir. 1994). In fact, the government:
       may "selectively fund a program to encourage cer-
       tain activities it believes to be in the public interest,
       without at the same time funding an alternative pro-
       gram which seeks to deal with the problem in
       another way. In so doing, "the [g]overnment has not
       discriminated on the basis of viewpoint; it has
       merely chosen to fund one activity to the exclusion
       of the other."

Finley, 118 S. Ct. at 2179 (quoting Rust, 500 U.S. at 193)
(emphasis added).

The majority does not explain why the important and
" `basic difference between direct state interference with a
protected activity and state encouragement of an alternative
activity' " is not relevant in the present case. Rust, 500 U.S.
at 193 (quoting Maher, 432 U.S. at 475). Nor does the major-
ity explain how, in light of the Court's instruction that "[a]
refusal to fund protected activity, without more, cannot be
equated with a disposition of a `penalty' on that activity," id.,
the City has burdened Appellants' free speech rights. Conse-
quently, I cannot conclude that simply because the City of
Tucson elects to selectively fund civic events, its refusal to
fund Appellants' event violated the First Amendment.

Furthermore, it is clear that the City was justified in exclud-
ing events that were in direct support of religious organiza-
tions because "when the Government appropriates public
funds to establish a program it is entitled to define the limits
of that program." Rust, 500 U.S. at 194. Events that obtain
funding from the City of Tucson are advertised as having
received City funding, and City employees operate light and
sound equipment at these events. Additionally, during these
events an announcement is made acknowledging that the City
contributed to the services at the event. The majority argues
that the City could have modified the policy to "decry any
endorsement by the City" when such events are advertised.
Supra at 4248. But the City should not have to engage in such
a practice. The City created the Civic Events Fund and is enti-
tled to obtain recognition that it participates as a co-sponsor
of civic events in Tucson. See Rosenberger, 515 U.S. at 833
("when the government appropriates public funds to promote
a particular policy of its own it is entitled to say what it wish-
es") (citing Rust, 500 U.S. at 194).

As Justice Scalia recently noted, "[i]t is preposterous to
equate the denial of taxpayer subsidy with measures`aimed
at the suppression of dangerous ideas.' " Finley, 118 S. Ct. at
2183 (Scalia, J., concurring) (quoting Regan, 461 U.S. at
550). Here, there is no evidence that the City enacted the Pol-
icy to suppress speech or a particular viewpoint. The City
excluded events that directly support religious organizations
only to ensure that it complied with the Establishment Clause.
This exclusion was permissible and did not violate the Free
Speech Clause of the First Amendment.

B. Rosenberger is Distinguishable.

Contrary to Appellants' argument, the Supreme Court's
recent decision in Rosenberger does not negate the well-
established precedent discussed supra. In Rosenberger, the
Court found that by subsidizing publications of student orga-
nizations with money from the Student Activity Fund, the
University of Virginia had intended to "open a forum for
speech" and "encourage a diversity of views from private
speakers." See id. at 834, 837. The Court accordingly con-
cluded that the University had created a limited public forum.
See id. at 837. Because the University had created a limited
public forum, the Court held that the University could not
exclude all publications with religious editorial viewpoints
from grant eligibility. See id. Rosenberger is distinguishable
for several reasons.

First, the funding process in the present case is more akin
to the grant process in Finley than the process used in Rosen-
berger. In Rosenberger, funding was available for all student
organizations' publications that met the stated criteria and
were "related to the educational purposes of the University,"
except those with religious editorial viewpoints. Id. at 824.
Here, the City provides financial support only to the events
that meet the Policy's criteria and that the Subcommittee
determines are most deserving. Thus, the City's grant pro-
gram is quite different from the objective grant process at
issue in Rosenberger.

Second, the Court emphasized in Rosenberger that the case
did not involve "religious organizations." See id. at 844. The
Court noted that "if the State pays a church's bills it is subsi-
dizing it, and we must guard against this abuse. " Id. But the
Court recognized that subsidizing a religious organization was
not a "danger" in Rosenberger because "the student publica-
tion is not a religious institution" and "it is not a religious
organization as [defined] in the University's own regula-
tions." Id. In contrast, it is undisputed that Appellants' organi-
zation is a religious organization. See Appendix at 1, 3, 5.

Third, unlike the City in the present case which co-sponsors
civic events, the University in Rosenberger was not promot-
ing its own message.6 See Rosenberger, 515 U.S. at 835. As
the Court noted in Rosenberger, all publications that received
funding from the Student Activity Fund printed a disclaimer
declaring "that the student groups are not the University's
agents, are not subject to its control, and are not its responsi-
bility." Id. In contrast, as noted above, events that obtain
funding from the Civic Events Fund are advertised as being
co-sponsored by the City of Tucson. Moreover, an announce-
ment is made at the event declaring that the event is co-
sponsored by the City.

Fourth and most importantly, taxpayers did not fund the
Student Activity Fund in Rosenberger.7 See 515 U.S. at 841.
The Court in Rosenberger stressed this fact noting that:

       [T]he $14 paid each semester by the student is not a
       general tax designed to raise revenue for the Univer-
       sity . . . . Our decision then cannot be read as
       addressing an expenditure from a general tax fund. 
       Here, the disbursements from the fund go to private
       contractors for the cost of printing that which is pro-
       tected under the Speech Clause of the First Amend-
       ment. That is a far cry from a general public
       assessment designed and effected to provide finan-
       cial support for a church.

Id. at 841 (emphasis added). Justice O'Connor's concurrence
in Rosenberger also highlighted this point, stating that
"[p]ublic funds may not be used to endorse the religious mes-
sage," and "[t]hese decisions [ ] provide no precedent for the
use of public funds to finance religious activities ." Id. at 847
(O'Connor, J., concurring) (emphasis added). Thus, the Court
sent a very clear message in Rosenberger that taxpayer money
may not be used to pay a religious organization's bills.
Indeed, Rosenberger did not change this rule -- it reinforced
it.

III

Even assuming that the City's Policy violated the Free
Speech Clause, the Policy is not unconstitutional if it serves
a compelling state interest and is narrowly drawn to achieve
that end. See Widmar v. Vincent, 454 U.S. 263, 270  (1981).
The City of Tucson enacted the Policy that excludes events
which directly support religious organizations to avoid violat-
ing the Establishment Clause. As even the majority concedes,
compliance with the Establishment Clause is a compelling
state interest. See supra note 9 at 4239 (citing Capitol Square
Rev. and Advisory Bd. v. Pinette, 515 U.S. 753, 761 -62 (1995)
and Lamb's Chapel). Because City demonstrated that the Pol-
icy was necessary to avoid violating the Establishment
Clause, it is constitutional.8
The Establishment Clause forbids "sponsorship, financial
support, and active involvement in religious activity." Com-
mittee for Public Education & Religious Liberty v. Nyquist,
413 U.S. 772, 772  (1973) (citations omitted). As a majority of
the Supreme Court recognized in County of Allegheny v.
American Civil Liberties Union, 492 U.S. 573 (1989):

       this Court has come to understand the Establishment
       Clause to mean that government may not promote or
       affiliate itself with any religious doctrine or organi-
       zation, may not discriminate among persons on the
       basis of their religious beliefs and practices, may not
       delegate a governmental power to a religious institu-
       tion, and may not involve itself too deeply in such an
       institution's affairs.

Id. at 590 (footnotes omitted) (emphasis added). The Court
further noted that the Establishment Clause "means at least"
that "[n]o tax in any amount, large or small, can be levied to
support religious activities or institutions, whatever they may
be called, or whatever form they may adopt to teach or prac-
any religious organization and more importantly, the funding of that event
was never challenged.

The fact that the City funded these events demonstrates that the City's
Policy is not hostile towards religion. Under the funding criteria, religious
organizations can receive funding for events so long as the event does not
directly support the religious organization. The City could have enacted
more restrictive criteria that excluded from funding all events that had any
relationship with religion, direct or indirect. Instead, the City chose to
adopt narrow criteria that would simply ensure that taxpayer money was
not used to support religious organizations in violation of the Establish-
ment Clause.

tice religion." Id. at 591 (quoting Everson v. Board of Educ.
of Ewing, 330 U.S. 1, 15 -16 (1947)). The Court explained
that, "whether the key word is `endorsement,'`favoritism,' or
`promotion,' the essential principle remains the same. The
Establishment Clause, at the very least, prohibits government
from appearing to take a position on questions of religious
belief. . . ." Id. at 593-94 (citing Lynch v. Donnelly, 465 U.S.
668, 687 (1984)).

It is clear that if the City funded events that directly support
religious organizations, the principles stated above would be
violated. Appellants' event, a gathering and prayer service for
"Tucson Christians," is without question, religious activity.
The City may not sponsor or provide financial support for
such religious activity. See Nyquist, 413 U.S. at 772. In addi-
tion, events that receive financial support from the Civic
Events Fund are advertised as being co-sponsored by the City
of Tucson. But the City may not promote or affiliate itself
with any religious doctrine or organization. See County of
Allegheny, 492 U.S. at 590. Finally, the City may not use tax-
payer funds, "in any amount, large or small" to support reli-
gious activities or organizations. Id. at 591; see also
Rosenberger, 515 U.S. at 840-41; Nyquist, 413 U.S. at 780.

The majority asserts that the City could fund events that
directly support religious organizations because such confer-
ral of incidental benefits does not violate the Establishment
Clause. See supra at 4244-45. I agree that the conferral of
incidental benefits does not necessarily implicate the Estab-
lishment Clause. However, I do not agree that the award of
taxpayer funds to support a religious organization constitutes
an "incidental benefit." Indeed, all of the cases cited by the
majority that deal with incidental benefits are distinguishable.
See discussion infra.

For example, the majority cites Widmar v. Vincent, 454
U.S. 263 (1981). The issue in Widmar, however, was simply
whether the University of Missouri's policy, which allowed
all student groups to use its facilities, except for religious
groups, was constitutional. See id. at 273. The Court found
that the "benefits" to religion were incidental because they
merely involved the use of University facilities. In contrast,
here, Appellants are seeking more than mere "use " of a
forum; they are seeking financial support for their event. This
benefit is direct and is not "incidental" not only because tax-
payers would be paying the fees owed by Appellants' organi-
zation, but also because money was collected at the event for
the organization. Moreover, the Court in Widmar  emphasized
that "[t]he basis for our decision is narrow " because the Uni-
versity "created a forum generally open to student groups."
Id. at 277. But in the present case the City of Tucson did not
make the Civic Events Fund generally available to all non-
religious organizations. In addition, the present case is distin-
guishable from Widmar because in that case the Court pointed
out that an "open forum in a public university does not confer
any imprimatur of state approval on religious sects or prac-
tices." Id. at 276. If the City of Tucson awarded public funds
to an event designed to "organize a gathering of Tucson
Christians," it would send a message that the City approved
of the religious organization. Thus, it cannot be said that the
"incidental benefits" involved in Widmar  are analogous to the
benefits Appellants' organization sought.

The majority also cites Lynch v. Donnelly, 465 U.S. 668
(1984). The issue in Lynch was whether a city could display
the creche on city property without violating the Establish-
ment Clause. See id. at 685-88. The creche had been dis-
played on the city property for 40 or more years and was only
a small portion of a larger display. See id. at 671. The
Supreme Court held that the display of the creche on city
property did not violate the Establishment Clause because
"whatever benefit to one faith or religion or to all religions
[was] indirect, remote, and incidental." Id. at 683. Unlike the
benefits sought in present case, the Court in Lynch noted that
"[n]o expenditures for maintenance of the creche have been
necessary." Id. at 684. In addition, the Court pointed out that
Lynch "does not involve a direct subsidy to church-sponsored
schools or colleges, or other religious institutions. . . ." Id. at
685. In contrast, if the City in the present case were to fund
Appellants' religious organization, the benefit to that organi-
zation would be neither indirect, remote, or incidental. Indeed,
the "benefit" would constitute direct financial support of
Appellants' organization because the City would be paying
that organization's bills.9 Thus, the benefit sought by Appel-
lants in this case is not analogous to the incidental benefits
involved in either Lynch or Widmar.

It is also clear that the City of Tucson may not fund events
that directly support religious organizations under Lemon v.
Kurtzman, 403 U.S. 602 (1975). In Lemon, the Supreme Court
set forth three "tests" to determine whether a government
practice violates the Establishment Clause. See id. at 612-13.
"Under the Lemon analysis, a statute or practice which
touches upon religion, if it is to be permissible under the
Establishment Clause, must have a secular purpose; it must
neither advance not inhibit religion in its principal or primary
effect; and it must not foster an excessive entanglement with
religion." County of Allegheny, 492 U.S. at 592 (citing
Lemon, 403 U.S. at 612-13). It is undisputed that the purpose
of the City's Civic Events Fund is secular and that it neither
advances nor inhibits religion in its principle or primary
effect. However, if the City allowed events that directly sup-
port religious organizations to apply for funding, it would
"foster an excessive entanglement with religion. " Id. The
City's Subcommittee, which evaluates and determines which
events should receive funding, would have to pick and choose
between various religious organizations, which is clearly
impermissible. And the City would be serving as a co-sponsor
of the religious event, providing staff at the event and finan-
cial support.

Furthermore, if the City of Tucson had funded Appellants'
event, the City would have violated the endorsement test.
Under the "endorsement test" the appearance of government
endorsement of religious messages is unconstitutional. See
County of Allegheny, 492 U.S. at 592-601; Tucker v. State of
California Dept. of Educ., 97 F.3d 1204, 1215 n.7 (9th Cir.
1996). Although Justice Scalia, writing for the majority,
rejected the endorsement test in Pinette, five justices sup-
ported the test in that case. See 515 U.S. at 786, 787-88, 797-
99, 817-18; see also Tucker, 97 F.3d at 1215 n.7; Kathleen M.
Sullivan, Parades, Public Squares and Voucher Payments:
Problems of Government Neutrality, 28 Conn. L. Rev. 243,
253 (1996). Under the endorsement test, "when the reasonable
observer would view a government practice as endorsing reli-
gion . . . it is our duty to hold that practice invalid." Pinette,
515 U.S. at 777 (O'Connor, J., concurring). Accordingly, the
Establishment Clause "imposes affirmative obligations that
may require a State, in some situations, to take steps to avoid
being perceived as supporting or endorsing a private religious
message." Id. (O'Connor, J., concurring). Indeed, "at the very
least, [the Establishment Clause] prohibits government from
appearing to take a position on questions of religious belief."
Id. at 799 (Stevens, J., dissenting) (quoting County of Alle-
gheny, 492 U.S. at 593-94).

In the present case, the Civic Events Fund excludes events
that directly support religious organizations to avoid the
appearance of City-endorsed religious speech. Events that
receive funding are advertised as having received City fund-
ing. Even if the City were to stop advertising funded events
and include a disclaimer, the appearance of endorsement
would still exist.10 Citizens of Tuscon have access to informa-
tion about how the City spends taxpayer funds. A reasonable
individual, upon learning that the City allocated public money
to subsidize an event for "Tucson Christians, " would perceive
that the City supports the Christian faith or religion in general.
This is impermissible under the Establishment Clause. See
Pinette, 515 U.S. at 777, 787-88, 799; Allegheny, 492 U.S. at
593-94; Tucker, 97 F.3d at 1215. Recognizing this threat, the
City's funding criteria correctly excludes events that directly
support religious organizations.

If the City's Policy did not exclude events that directly sup-
port religious organizations, the City would either have to ter-
minate the grant program entirely, or fund every religious
event that requested funding. The Establishment Clause
clearly prohibits government from preferring one religion
over another. Thus, the City could not continue to selectively
award grants to "civic events" because such subjectivity
would certainly create excessive entanglement with religion
in violation of the Establishment Clause. See Lemon, 403 U.S.
at 612-13.

IV

The use of taxpayer money to pay a religious organiza-
tion's bills is a blatant example of an Establishment Clause
violation. See Rosenberger, 515 U.S. at 841, 844; Nyquist,
413 U.S. at 780. Even assuming that the City had adopted a
totally "neutral" policy, the result would be the same -- tax-
payer money would still be used to pay the bills of religious
organizations, which is clearly prohibited by the Establish-
ment Clause. See Rosenberger, 515 U.S. at 844; Nyquist, 413
U.S. at 780.
As Justice O'Connor declared in Rosenberger, there is "no
precedent for the use of public funds to finance religious
activities." 515 U.S. at 847 (O'Connor, J., concurring). The
majority has not pointed to a single case where the Supreme
Court or this court upheld the use of taxpayer  funds to
directly support a religious organization.

The majority asserts that the City should award grants to
"all speakers in the forum on a religiously neutral basis," and
that such conduct would not violate the Establishment Clause.
See supra at 4250. Clearly that is not a realistic option here.
The City does not have unlimited funds to financially support
civic events. Under the current policy, the City evaluates
applications and only funds those events that the Subcommit-
tee determines will best further the City's goals. Moreover,
"[t]he Establishment Clause forbids a State to hide behind the
application of formally neutral criteria and remain studiously
oblivious to the effects of its actions . . . and not all state poli-
cies are permissible under the Religion Clauses simply
because they are neutral in form." Pinette , 515 U.S. at 777
(O'Connor, J., concurring).

The City of Tucson's Civic Event Policy is constitutional.
Accordingly, I would affirm the decision of the district court.

APPENDIX

To Judge Pregerson's Dissent.

 
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_______________________________________________________________

FOOTNOTES

1 The Honorable David O. Carter, District Judge for the Central District
of California, sitting by designation.
2 According to the Gentalas' application to the Fund, the services for
which they sought coverage amounted to less than $500.
3 Because we conclude that the City violated the Gentalas' free-speech
rights and that the Establishment Clause does not provide a sufficiently
compelling reason to justify that violation in the context of this case, we
do not address the Gentalas' other constitutional claims.
4 As the dissent correctly notes, the terms "designated public forum,"
"limited public forum," and "nonpublic forum" have not always been used
with precision. See DiLoreto, 196 F.3d at 965 & n.4. A "designated public
forum" is a forum which the government, through its explicit and inten-
tional conduct, has designated as a forum generally open to the public for
expressive activity. See Perry Educ. Ass'n, 460 U.S. at 46-47; Widmar,
454 U.S. at 267-68 & n.5, 270; DiLoreto, 196 F.3d at 965 & n.4. The
Supreme Court has referred to a forum opened by the government to cer-
tain speakers or topics as a "limited public forum," see Rosenberger, 515
U.S. at 829; the Ninth Circuit has referred to such a forum as a "nonpublic
forum open for a limited purpose," see DiLoreto, 196 F.3d at 965-66.
Because content-based discrimination is not allowed absent a compelling
interest in either a traditional or designated public forum, see Perry Educ.
Ass'n, 460 U.S. at 954-55, and is permissible in fora opened for more lim-
ited purposes to preserve the nature of the forum, see Rosenberger, 515
U.S. at 829; Perry Educ. Ass'n, 460 U.S. at 460; DiLoreto, 196 F.3d at
965-66, the Ninth Circuit's terminology may lead to less conceptual blur-riness. Regardless of the terminology used to describe the forum, however,
the Supreme Court and the Ninth Circuit agree that governmental discre-
tion in managing the more selective forum is bounded by the same consid-
erations -- reasonableness in light of the forum's purpose and viewpoint
neutrality. See Rosenberger, 515 U.S. at 829-30; Perry Educ. Ass'n, 460
U.S. at 48-49; DiLoreto, 196 F.3d at 967, 969. Thus, because the distinc-
tion between a limited public forum and a nonpublic forum is a semantic
distinction without an analytic difference, and because the Rosenberger
Court referred to the fund it was analyzing as a limited public forum, a
fund we conclude is most analogous to the Fund at issue in this case, we
will continue to use that terminology. See Finley, 118 S. Ct. at 2178 (stat-
ing the fund at issue in Rosenberger was a "limited public forum"); Rosen-
berger, 515 U.S. at 829 (stating the fund being analyzed by the Court was
a "limited public forum"); DiLoreto, 196 F.3d at 965 (noting that the
Rosenberger Court had used the term "limited public forum").
5 Although the Supreme Court's decision in Widmar is instructive in our
analysis of the issues on appeal, the distinction between discrimination
permissible in traditional and designated public fora on the one hand and
in limited and nonpublic fora on the other prevents Widmar from control-
ling the present case. The Supreme Court classified the meeting space in
Widmar as a designated public forum. See Widmar, 454 U.S. at 267-68 &
n.5, 270. The Court then concluded that prohibiting groups from using
classrooms as meeting space "based on the religious content of the group'sintended speech" was content-based discrimination that could only be jus-
tified by a compelling interest and a narrowly tailored regulation. Id. at
270. If the Fund were a traditional or designated public forum, the excep-
tion for religious speech would be an impermissible content-based dis-
crimination. See id. at 276. Because the Fund is, at most, a limited public
forum opened for certain speakers and topics, Widmar is inapplicable to
the free-speech analysis and we must determine whether the exception dis-
criminates on the basis of viewpoint on its face or as applied to the Gen-
talas by the City.
6 For this reason, the dissent's reliance on DiLoreto is misplaced. In
DiLoreto, this Court upheld the School District's refusal to post the text
of the Ten Commandments on Downey High School's baseball field
fence. See DiLoreto, 196 F.3d at 962. The Court concluded that the refusal
was permissible content-based discrimination, not because of the religious
character of the posting per se, but because the forum itself had been lim-
ited to business advertising. See id. at 969. ("Mr. DiLoreto's ad was not
a statement addressing otherwise-permissible subjects from a religious
perspective . . . .") Because the Gentalas' event fit the religiously neutral
criteria for inclusion within the forum created by the City's Fund, this case
is distinguishable from DiLoreto.
7 The prior year, the free-will offering raised $393.84 and the expenses
associated with the event amounted to $404.54.
8 Although both the Rosenberger and Lamb's Chapel Courts concluded
that the government had engaged in viewpoint discrimination, in neither
opinion was there any discussion of other speakers being allowed access
to the forum to discuss the same issues from a non-religious perspective.
In Lamb's Chapel, the Court was satisfied that the school board had
engaged in viewpoint discrimination where the record was silent on the
question of whether the subject matter seeking to be addressed by the reli-
gious speaker was forbidden, but the record clearly established that the
film series was rejected because of its religious perspective. See Lamb's
Chapel, 508 U.S. at 393-94.
9 Obeying the mandate of the Establishment Clause is undeniably a com-
pelling state interest. See Capitol Square, 515 U.S. at 761-62; Lamb's
Chapel, 508 U.S. at 394.
10 In her concurrence, Justice O'Connor identifies two other reasons why
a fund created by student fees should be analyzed differently than a fund
created by general tax assessments. See id. at 851-52. Justice O'Connor
observes that the fund in Rosenberger "belongs to the students" because
it is administered by them and is used to benefit those who paid into the
fund. See id. Given that the Fund is administered by a City Council com-
posed of duly-elected representatives of the residents of the City of Tuc-
son to provide civic events for the benefit of the residents of the City of
Tucson, we conclude that it belongs to the City in a similar fashion. Jus-
tice O'Connor also observes that students may have a First Amendment
right to "opt-out" of student-fee assessments not available to citizens who
have to pay tax assessments. See id. at 851. This is a distinction between
the Fund in Rosenberger and the City's Fund, but it is a distinguishing
characteristic which only garnered one vote from the Court. Moreover, a
majority of the Court has subsequently rejected such an argument with
respect to viewpoint-neutral subsidy programs. See Southworth, 2000 WL
293217, at *2. Accordingly, we cannot find it a persuasive rationale for
why this case should be resolved differently than the majority resolved
Rosenberger.
11 It is important, when considering how the situation of the National
Day of Prayer event having costs covered by the City's Fund would be
interpreted by observers, to note that most of the attendees of the event
were probably adults. See Marsh, 463 U.S. at 792 (stating that an adult is
"not readily susceptible to `religious indoctrination,' or peer pressure")
(citations omitted); see also Widmar, 454 U.S. 274 n.14 (stating that
"[u]niversity students . . . are less impressionable than younger students"
and should be able to appreciate the government's neutrality toward reli-
gion even when a religious group is benefitting under a university pro-
gram); Mergens, 496 U.S. at 250-51 (stating that high school students are
also able to distinguish between a government endorsement of religion and
a neutral governmental policy that happens to aid religion).
1 The Honorable David O. Carter, District Judge for the Central District
of California, sitting by designation.
1 The majority claims that "the dissent relies on the Gentalas' original
application for reimbursement from the Fund, and attachments thereto,
which state that the National Day of Prayer event was organized for `Tuc-
son Christians.' " See supra at 4243. Indeed, the application for funding
clearly indicated that the purpose of the event was "To organize an annual
gathering of Tucson Christians to observe the National Day of Prayer," see
Appendix at 5. This is what the Subcommittee had before it when it
decided to reject the Gentalas' application for funding.

Moreover, question 10 on the application asks, "Does your organization
require its members to pledge to any specific religious belief?" To which
the Gentalas marked "Yes" and wrote in "Christian." Appendix at 5. The
second part of question 10 asks, "If yes, would a person's membership be
terminated if the person would not make such a pledge?" Again, the Gen-
talas marked "Yes." Appendix at 5. I am not aware of any case where any
court found that a similar organization (that required its members to
pledge to a specific religious faith and would terminate a person's mem-
bership if they did not) was not a "religious organization."
2 The majority incorrectly asserts that the Gentalas' event was a "public
prayer service conducted from such a perspective[that] would supportmembers of Jewish and Christian religious organizations . . . ." The prayer
service, as Appellants' counsel admitted at oral argument, addressed a
Christian perspective only. And the only individuals that spoke at the
prayer service were Christians -- they were not members of the Jewish
faith as the majority opinion suggests.
3 Although the Subcommittee did not evaluate whether the event would
otherwise meet the criteria for funding, it appears that the event would not
because: (1) the Tucson National Day of Prayer Committee was not a non-
profit organization; (2) money was collected at the event; and (3) it is
highly doubtful that the event "did not discriminate against any persons in
any manner" as required by the Policy.
4 As noted in DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196
F.3d 958, 965 n.4 (9th Cir. 1999), "[t]he contours of the terms `designated
public forum' and `limited public forum' have not always been clear."
(citations omitted). Here, the majority concludes that the Civic Events
Fund is a "limited public forum." Supra  at 4232. It is perhaps more precise
to state that the majority finds that the Civic Events Fund is a "nonpublic
forum open for a limited purpose." DiLoreto , 196 F.3d at 967. Nonethe-
less, for purposes of clarity, because the majority uses the term "limited
public forum," I will use that term in my dissent as well.
5 Even if I were to analyze this case using forum doctrine, I would still
conclude that the City's actions were constitutional, especially in light ofthis court's recent decision in DiLoreto. See 196 F.3d 958; see also Good
News Club v. Milford Central Sch., 202 F.3d 502 (2d Cir. 2000) (ruling
that school's refusal to allow religious organization to use facilities was
based on content, not viewpoint). In DiLoreto , we ruled that the school
district's refusal to permit religious messages on a high school baseball
field fence was a "permissible, content-based limitation on the forum, and
not viewpoint discrimination." Id. at 969-70 (emphasis added). In addi-
tion, in DiLoreto we rejected the argument that excluding religion as a
subject or category always constitutes viewpoint discrimination. Id. at 969.
We stated that such an argument "mischaracterizes the holding in Rosen-
berger" and we noted that in Rosenberger , "[t]he Court merely held that
refusing to fund only religious viewpoints on otherwise-permissible sub-
jects (i.e. pregnancy or homosexuality) was viewpoint discrimination." Id.
at 970.
6 This fact also distinguishes the present case from Board of Regents of
the University of Wisconsin System v. Southworth , _______ S. Ct. _______, avail-
able at 2000 WL 293217 (Mar. 22, 2000). In Southworth, the Court ruled
that a public university may charge its students an activity fee to fund a
program to facilitate extracurricular student speech. See id. The Court,
however, emphasized that:

       Our decision ought not be taken to imply that in other instances
       the University, its agents or employees, or -- of particular impor-
       tance -- its faculty are subject to First Amendment analysis
       which controls in this case. Where the University speaks, either
       in its own name or through its regents or officers, or in myriad
       other ways through its diverse faculties, the analysis likely would
       be altogether different. The Court has not held, or suggested, that
       when the government speaks the rules we have discussed come
       into play.

Id. at *10 (emphasis added) (citations omitted).
7 Perhaps the most troubling aspect of the majority's opinion is the sug-
gestion that the student fees in Rosenberger  and the general tax assess-
ments in the present case are not distinguishable, see supra at 4245,
despite the Court's forceful language in Rosenberger that the case "cannot
be read as addressing an expenditure from a general tax fund." 515 U.S.
at 841. The majority argues that this distinction does not apply here
"[g]iven that the Fund is administered by a City Council composed of
duly-elected representatives of the residents of the City of Tucson to pro-
vide civic events for the benefits of the residents of the City of Tucson."
Supra at 4246, n.10. I strongly disagree. That the taxpayer funds are
administered by "duly-elected officials" does not insulate this or any other
case from concerns about violations of the Establishment Clause. The
Establishment Clause exists, in part, to protect those in the minority, who
without protection under the First Amendment, could be forced to live
under a majority-imposed religious regime. See Lee v. Weisman, 505 U.S.
577, 592 (1992) (stating that the "inspiration for the Establishment
Clause" was the lesson that "in the hands of the government what might
begin as a tolerant expression of religious views may end in a policy to
indoctrinate and coerce.").
8 In addition to being necessary to avoid violating the Establishment
Clause, the Policy is sufficiently narrow. The City's Policy did not
exclude all events with any type of religious theme, it only excluded
events that directly support religious organizations. For example, the City
funded the fishing clinic for handicapped children which was sponsored
by the Lutheran Church, a Mormon Battalion event that celebrated theplacement of a monument in a city park which commemorated a historical
event in Tucson, and a Las Posadas festival. The majority argues that the
City's decision to fund the Las Posadas event demonstrates that the City
is engaging in viewpoint discrimination. See supra at 4238. I disagree. The

9 The majority argues that the benefit is not "direct" because the City of
Tucson would not be required to make "direct" money payments to Appel-
lants' organization. See supra at 4245. I disagree. As Judge Sneed stated
during oral argument, such a distinction "doesn't make any sense -- a
concession to a particular religious organization in the form of the govern-
ment spending money on their behalf as opposed to giving them the
money to spend for the same cause really doesn't make any sense. In any
event, an economic benefit is being made to a religious organization."10 The majority argues that "[i]t is important, when considering how the
situation of the National Day of Prayer event having costs covered by theCity's Fund would be interpreted by observers, to note that most of the
attendees of the event were probably adults." See supra note 11 at 4247.
There is absolutely no support for this conclusion in the record. There is
no evidence that the event was geared towards adults or that most of the
attendees were adults. Thus, this argument is based on pure speculation.