now please the court kelly flanagan for appellants this is a unique case involving a fairly limited issue i whether the county must be forced to convert its library meeting room into a church based six to conduct religious worship services at the church at the library and now court before the court below has ever held that a meeting room such as the libraries must be forced to be open for religious services that's just a circuit case by judge jolly comes pretty close is that if your friends the concerned women of america yes well that's that's not a church seeking to hold religious services it's a group of women seeking to discuss certain issues and perhaps may include prayer about those issues but that would be different than i charge having a religious service well that kind of gets sort of to the heart of it doesn't it is a how do we define a religious service without looking at the content of what they're doing and having a library and monitoring what's being said during the use of that facility to determine whether they're worshipping or not well i don't know that it's as broad as determining whether they're worshipping or not the issue really is because all we exclude as a religious service and if they're conducting a religious service certainly the religious group knows what a religious services and like we would like pornography we know what when we see i least one definition and i suppose for different religions a service has different components and it does a service always have prayer i don't know i don't know every religious service allow the pastors group to use the meeting room because the librarian determined that they were engaging in religious services in violation of the policy correct well that was the initial rejection or the the group you're themselves admit they want to have a religious service and on their flyer describe it as a separate and it and the like we rely on all groups wanting to use the meeting room we have an application equivalents of religious worship services it's a separate category ok so in the afternoon stash and they defined as or described as praise and worship is the is is how it's written here in  exact words they use i don't know that they'd have to use the words religious services i mean they've conceded here that that's what that is and when they applied it is their library meeting room presumably they know what the library policy is and when asked what they're doing if that includes a religious service well the fact that my feel good about the fact that members of the public might enjoy it doesn't change the character of the activity as a religious service and that's a different category of activity than discussion of otherwise permissible subjects from a religious perspective let me ask you a question how does this case differ from the second circuit's decision in bronx household well in bronx household the group that want to engage in that sort of parsing but it's been done in this circuit previously and particularly given that the group itself separated its activities in this case it's funding and i guess the problem i have with your argument is that on the record before us it's not a self executing policy a government official the librarian at antioch had to look at the policy look at what the group was doing in the public meeting room and conclude that what they were doing was engaging in religious services based upon the content of what they were doing and i don't understand how that's different from the situation that confronted the fifth circuit in the concern women of america a case where the librarian said you can't use the auditorium because you're praying in our room and the problem of the fifth circuit had which is the same one i'm having under the supreme court authority is that is viewpoint based discrimination the only way to make that determination is to look at the content of what is occurring in the room and then tell the group you are not permitted to engage in that kind of behavior in using a meeting room that we've opened to the public for purposes of all sorts of cultural activity but that is there i mean praying on a subject whatever it religious service you would agree would you not that worship includes prayer correct so if the group goes in and spends an hour praying are they conducting a religious service or  engaged in a word shop well if the words office truly had an instructional workshop of some sort of presumably the entire time they wouldn't just be praying but  certainly prospectively if religious services are precluded and we've got to rely on the people using the rooms to tell us what they're doing we don't people using the room told county what they wanted to do in the room and the county initially issued a permit authorizing them to do it and then they can and presumably they were given a copy of the the part of the county policy at some point and it wasn't until the county officials say that you can't use the room for that purpose that the policy was invoked it wasn't because the group said oh we see here that the policy prohibits religious services therefore we're engaged in improper use will cease and desist our activities they want to use the room well but to some degree the group has to be responsible for telling the library what it's going to do i mean the library doesn't generally gauge and when someone says i want to use the room for a homeowner's association meeting they don't go check out what the group's actually dealing here's a group told the librarian what they wanted to do in the library and said based upon what you're going to do in there i'm just citing that you're engaged in prohibited religious services and i'm revoking your permit now why doesn't that constitute government entangle has to be done using the narrowest possible limitations and leave no discretion to the official that you can impose reasonable time place and manner restrictions on all that and i think it says it has to be don viewpoint neutral way which is the way we're doing it here we're not excluding any particular viewpoint all religious services are excluded but the problem isn't that i'm struggling with as i don't know what religious services are under this policy i see the two words that's all i see well say that there is says the terms quote religious services i'm religious instruction and quote have a common meaning so that people of ordinary intelligence can determine what they mean and that's what the standard this is whether a person of ordinary intelligence could determine what it means i'd also point out that the federal government for example and charitable choice provisions and other things that we've cited uses the executive order also about charitable choice type provisions that uses religious activities such as worship religious instruction and proselytizing without definition that we can find so the federal government apparently believes that similar terms are have sufficient clarity to be used in statutes and regulations that pertain to the allowing of religious groups to provide social services but not to provide certain social services at the same time or in the same place as those other activities does it make a difference the fees activities are being conducted during normal business hours for the library as opposed to after hours like the school cases i think it does i mean that the courts in all of the cases that involve schools make a note and reference to the fact that it's being done after hours when the schools effectively empty except for the people who are g to a little bit different right schools are a little bit different especially here in california they have an education code that allows them to school buildings to be used for religious services if the space is paid for but the cases all make reference to the fact that the activities in question are being held after hours so i would presume the courts make note of that for a reason but isn't the reason because we don't want to have to compel in the  school school children to be exposed to activities that their parents may not want him to be exposed to by virtue of the fact that their attendance at school is compounded now because i don't think it's any different i mean if someone could have an activity at a school where there were children present significant that the events are happening after hours ok but you're not alleging as i understand it either disruption to the normal quiet operations of the reading room of the library and i guess your answer also i that it can be conducted behind closed doors so that patrons of the public part of the library who do not wish to expose themselves to what's going on in the room don't have to know about it well not that they necessarily don't know about it certainly whatever is going on you know there's flyers in this case that were distributed certainly people in the community would know what's going on were group to publicize this but i don't know that i know that in this after hours cool cases to wouldn't think of trying to understand the constitutional significance of that differentiation they they might know it's going on but again in the after hours case after hours case the religious activities whatever they may be are going on when no one else this president presumably people know that to hear you're converting a portion of a library into a church when other people are there when children are there but of course end of the school beacon for the same reason is being converted to a church on sunday morning is it not if the school auditorium is being used if it's being if an empty school is being rented for that purpose perhaps yes but this is a free meeting room while the i understand the policy this is not a group that you would normally charge for the use because they're not involved in a for profit activity right well that's correct and there are certainly religious service or as they've defined it religious worship does not constitute an educational cultural or community interest not of the religious service is excluded apart from that it's a different part of the policy and i on saturday afternoon at three o'clock and listen you know partake and lo and behold what they have to offer his prayer a sermon  testimonials if that's the regular accepting christ will help me control my addiction why is that educational and not religious service if i can you tell me if that would be permitted i don't know if what they're doing is inviting narcotics addicts to come to their regular religious services that it would be prohibited group's regular religious services and they said they have to let the national prayer service and but that the village would not be engaging in viewpoint discrimination to keep the regular religious services out they don't say what that means presumably the church knows what their regular religious services are and the church here wants to use an alternative building but the judge gospel of jesus christ because some people won't come into a church and the library meeting room being used as an alternative to a church thank you wary on a saturday afternoon or sunday morning or whenever it is that the group holds their services is i just didn't category of activity it's a different category and the exclusion is based on the type of activity just like we allow the democratic club and to discuss issues but we preclude by statute campaign activity i mean this is similar activity but it's a different they have it what if they had a part what if they had a meeting that said where the focus was we need more social programs that's not the campaigning activity is activity designed to support or oppose a particular candidate not discussing what the democratic viewpoint as on certain social issues or political issues so if they have a meeting at which the democratic decides on their platform issues and what candidate they're going to do with manson the county elections i think that would be precluded from the library meeting room i mean they can discuss the issues they can discuss the issues from their political viewpoint but they can't campaign just like the religious groups can discuss the issues they can discuss how it was all this is the library it's going to be quite busy well again if someone comes and says we want to use this for homeowners association meeting we don't go in the meeting room and make sure that's what they're doing we rely on them to accurately fill out the application form and we rely on them to know what the policy is just like everybody's got to know what the various rules and regulations are the reason given for not allowing this particular afternoon suggestion that religious worship isn't protected by the first amendment and saying that religious worship is protected by the first amendment the court talks about you know potentially difficulties in distinguishing but it's in the context of deciding whether it has first amendment protection and just because that first person amendment protection which we fully acknowledge doesn't mean that it has free reign in every potential government form but you invoke the establishment clause with more specifically rejected the universe's implication of us and establishment clause violation but that was an entire that was in a wide open forum with all kinds of student groups and again a student club wanting to conduct various activities not into some sort of church i think it's important to remember that that face centers only requested to use the facility for one saturday for four hours every other month so as a as a matter of fact we're talking about a total of six times a year and to be perfectly candid in responding to that this would no more turn this meeting room into a church then allowing narcotics anonymous to use it into the betty ford clinic case then we would this quarter another court would would take up those facts you know as a as a unique set of circumstances to weigh that to see if this changes anything but i think it's in to the county can impose reasonable restrictions as to time place and so on correct yes sir and you can see it under with mar that that if the church said we want to use it every saturday between ten and two pm that the county could say look our intent is to open this facility to a number of groups and it's going to be done on a first come first serve basis and you're just going to have to take your chances to whether that whether it's available that day or i do know it would be ok i do i agree i think that's a very important point content neutral type place or manner restrictions can be imposed against face center as you can against any other church this particular meeting room if you if you go when there's a sign that says maximum capacity one hundred  argument in the good news club case where he said that this kind of activity is a separate category and could be treated as such and the majority just didn't buy it in fact reduced to its essence here  we see that that religion as a topic or subject matter is permitted within the forum we know that we even know that religious activities are permitted within the forum and we know the teaching prayer and prayer is permitted within the forum and we also know that denigrating or criticizing a deity is a primitive expression in the form and we also know that that worshipping or praising a deity taking them at their word would be prohibited now as we have you know listen to them rather papers and go through their arguments and participate in arguments in lower court even today we can't tell you when singing songs singing christian songs or reading scripture or teaching moral behavior and good conduct from a religious perspective stops being reading singing and teaching and becomes religious worship or religious s was that was the credit description of used by by hattie hopkins and we what it what is religious worship like religious worship amounts to teaching moral behavior good conduct from a religious perspective singing christian songs and reading scripture i mean i think we can all agree to that where we don't know what the county can't tell us is where that stops being singing songs reading scripture and teaching moral behavior from  your example in involving the you know drug addicts anonymous or alcoholics anonymous at one point what point does that become too religious and how's a librarian supposed to know that it their specific service on saturday afternoon at three o'clock in the public library and every body knows if you go to a lutheran service like to expect like they go and they go to the library and they say this is what we're going to do a library says no it's a religious service can you do that i think not not not if they open this forum is open to any public expression that's related to community culture or educational issues clearly and they've not disputed that wasn't what ms hawkins of faith center good falls within that that you know those broad topics in fact it's difficult to imagine a broader array of  expression this permitted there the first question is is what the methodist church doing does it fall within those three broad topics is it educational certainly i think so it's open to the public as well as it does it relate to the culture yes i think so  that relate to the community yes indeed does it involve praise of a deity yes on the other hand can other groups go in and denigrate or criticize or discuss the d d yes they can therefore to ben that is clearly viewpoint based discrimination and under any kind of forum we see from that from the county's perspective the way in which they defined or the regulation that they have adopted having adopted that particular curious you know that i'm sure the library kind of curious about this i'll do my best to answer that question if if that's the only permitted use literary discussion then i think clearly they could not then a speaker that came in and discussed that topic from a religious viewpoint you know for instance banning the bible we want to study the bible as literature and some of the teacher came and said you know not only is the bible literature it's the it's the inspired word of are some certainly there are some restrictions with room for a good example if i could answer this question would be the dolerite ok's or even the children of the rosary case where you had a commercial  class go and study the inspired books of the bible i don't think under the policy the hypothetical policy the court asked about it could be kept out ok but we're not there but i understand why it's not the policy we're dealing with dealing with one that was broadly defined index cultural educational and community and i think i know your answer to this but i probably should have asked in this flanagan your position i think it is that by virtue of the way the county has drafted the policy this is an open public forum we would say it's a designated forum it is designated public forum cut because it's open to all or part of the public for a broad array of expression we want to we want to have a meeting here and we're going to talk about the evils of you know rights and whatnot today could they have to let them in there i think i think the answer was he answered yes i think the answer was in answer to that question was answered  hocks anonymous and a lot of these other groups they have to allow the church group in and they cannot discriminate against their speech on the basis of a few points i felt i soon that's why judge white refused the county's request for  an injunction to prevent them from closing i suspect that was the reason although there is an undeveloped argument we've seen in some law reviews that retaliatory viewpoint base closure may give rise to a cause of action and whether we get to that here i don't know that issue is not before it is now i just noticed in the procedural history of the case that that he had declined to say one way or the other whether the county could the policy altogether that is correct loath the room to whatever its use was limited to before the policy problem in the absence of some illicit motive which would complicate things the county was never required open it and they probably shot tomorrow if they choose to or they could refine the policy to make it more restrictive if they could worded in such a way that it was content neutral given infinite possibilities perhaps what one of the issues is trying to distinguish these school cases when if you look at them every single one of the cases that counsel cites involve either and usually a combination of all three or four involuntary participation by a captive audience which is coerced under compulsory attendance requirements and in the middle of that you have state sponsored expression so that's a completely different  category or kind of sphere of case versus you're neutral equal access kind of situation where you have private members of the public coming into a forum this been open for the purposes of expression where at where the only participants are the individuals who that make a difference if dr hawkins is a female who sits here and she her ministry is to reach people who are threatened or intimidated or not otherwise go into a bricks and mortar church and and her her meetings are not only for those who are already converted but those who bait potentially be converted so within that context she can certainly  that is can you understand the this religious worship praise and worship service to appeal to have a community interest that can be i think one of the problems the county has been operating under here as it has been viewed viewing this as an either or not a distinction that the government or courts are really competent to make but but the idea that praise and worship segment of the larger meeting couldn't appeal to the larger community i think is is something we try to challenge in our friend of this court would say that this kind of activity as described in the flyer and what they're facing are church wanted to do is part of the community so how you look at that yes i think it has an appeal and it falls i sometimes go to church i kind of asked why is that you have an interest and he said yes in this this praise and worship segment of this larger women of excellence conference that's what it said on the flyer can have an appeal to the community just because it's religious we can't we can't deem it as having no appeal to the larger community i'd also like to address the point that was made about the federal funding and the fact that these faith based initiatives have restrictions on them the funds  being used for proselytisation and things like that that's not express a form the government has not opened up a form and asked different groups to come in and express their points of view rather the government in a sense uses different secular and religious organizations to fund a social service that the government is chosen to take on and so i think that the that's a distinction that can easily be made between federal funding and also it's really is about the difference between sort of religious speech and non us that depending on its designation the degree of restriction might be looser or more severe my understanding it with with regard to the content restrictions and the line  viewpoint as the court i think in rosenberg of said is not always clear viewpoint being a form of content restriction but i think in good news club the court was quite clear it said does not matter what sort of form this is viewpoint discrimination cannot be justified perfectly legitimate here and as as a brother council or face one of said we would agree that that those sorts of restrictions could be made and that you could you could put those restrictions on as long as replied neutral can't then decide just to keep out religious worship in the way they're doing and it's odd that the this restriction only gets that one sort of viewpoint and that is religious viewpoint it's sort of like there's another exclusion the right that the school can't use can't turn it into a classroom and use that as a de facto school bill that's right that is one of strictures and i think opposing counsel also mentioned that simpler restrictions though i would point i would point the cortex of the supplemental excerpts of record page the librarian would put a quick stop to that put it did put a quick stop to it boy would put it well was that it be this or this is this was the application and i think it's far as i understand from the record they were able to meet there so i don't know no i don't believe so no it's because because i think even the example you're giving has an appeal to the as a community interest or as educational elements i mean the fifth circuit or that's the sort of eastern district have religious content but i would have an appeal to an array of people i mean it seems that that the meeting that the face and i had had an appeal that i think the facts or the ten to fifteen or at least the complaints about ten to fifteen people showed up  lectures or whatnot i think it might be possible to follow that consistently to create what maybe will term a severely limited form i mean no if you only talk about economics and so if a political group comes in and tries to have a political open than any of those who are but i'm just i'm still i'm still trying to figure out what what test does the court apply to reach that determination what evidence do we look at the fact that we have a screening process the fact that we  do reject applications that itself goes into ice not it's not like a park or a town square where virtually anybody can just go stand on a soapbox and  they want to say this meeting room has a policy it has an application process that has a screening process and in all the cases that i'm doing don't we still look at the policy doesn't isn't that also relevant the words of the of the purpose of the policy to permit the use of library meeting rooms for educational cultural and community related meetings programs and activities well it would be relevant but the process itself is relevant to and there  still van and test the constitutionality of the policy by asking whether or not it constitutes viewpoint discrimination so it doesn't really matter how we designate  well if if the county is found if the county's policy is deemed to be viewpoint discrimination it doesn't matter what the form is the test to be the same a district scrutiny compelling interest kind of test but if the counties than a political discussion then we are our policy need only be reasonable and i think our establishment clause concerns certainly would constitute a reasonable issue reasonable now reasonable basis to exclude the category of religious services and back to that the example of the literacy example  conceded virtually that a religious service is something different because in that literacy example he said we have to allow our church and to discuss literacy or the bible or books or literature from a religious perspective but under that policy we would not have to allow a religious service and that's an acknowledgement that a religious service is something different it's not that ok let's just take it to what the government was saying in response to one of my questions first we don't have that policy but in which the policy was defined i don't think so i think it's i don't think the test is does a religious service appeal to the community i mean lots of churches are crowded places clearly there is interest in religious services the question asked is it appropriate to have a religious service and a public open library as an alternative to those church buildings should a government building be an alternative to church sanctuary should a government space be used to in this case spread the gospel of jesus christ and look and report has said you can use school buildings after normal school hours sector religion would ordinarily have in their sanctuary if the people would go to a traditional church building then i don't know that marilyn just worship has a meaning and presumably it does or the supreme court wouldn't of carved it out but if somebody wanted to use the meeting room to hold a ok if we offered a prayer at the beginning and a prayer at the end interspersed with reminiscences from friends and family members in between if this to friends and family members wanted to come together and h reminiscent reminiscences and at some point someone decides to offer a prayer that is not necessarily a religious service just like if someone is having a meeting about any subject and someone decides to offer a prayer for something in the middle of it i don't know that becomes a religious service but a religious service and the way that the church airframes this in the complaint is we want to do something in your public government building that ordinarily people do in a church but because people don't want to walk into a church we want to use your library meeting room and it's different holding a religious service practicing one's religion effectively is different than discussing it or discussing other issues from your religious perspective it's a different it's different in kind  from a discussion from a particular viewpoint i think the example i used in the district court was my daughter's middle school open house they studied the rise of islam from a historical perspective and there were there were maps all over the place and they were talking about islam not a problem but if the same teacher had had those children belt towards mecca and pray presumably there would have been an uproar that they were practicing religion in the public school it's a relatively easy distinction to manc and i don't know that it's a lot harder to make here once you cross over into the practicing of one's religion through a religious worship service that is something that our certainly the group doing it knows what it is but it's not you know you keep coming back to this theme that it's the group that somehow regulates itself it looks at the county policy and says oh i can't do that because this is a religious service and i know it's a religious service therefore i can't use the room but the city center filled out the application and said we want the room and when the county said here's what the policy is they said we want the room and now the problem is a government official has to decide whether the content of the activity is a religious service or not and i don't see how that isn't viewpoint discrimination in this case i think there may have been some confusion at the time the application was pointed out that the policy has evolved and did used to preclude religious purposes or activities or services i think and so i'm not sure that the fact that when face center filled it out what their understanding of the policy was and it may well have been under the previous policy but you agree don't you that at some point some official from contra costa county whether it's the librarian or the chairman of the board of supervisors hast of make a decision as to whether or not the activity which is it comes to us on a grant of a pulmonary injunction you're up here on to our standard review for the bottom line is abuse of discretion of course of the district court judge misapplied the law that could constitute constituted a of discretion well i but i don't you know looks like you read the transcript it looks like the judge here judge white you look at all the cases considered all the arguments the available documents that were presented a thorough debate with the part with the parties and then exercised his discretion in granting the plenary injunction now can we can we really say that he misapplied he got the law wrong well but i that we're trying to resurrect judge souter's argument that somehow it's a different category that worships a different category the majority rejected that the majority said it wasn't worship so you know i would agree we don't look at the label we look at what they're doing  which is an eastern district of louisiana case which in both cases the courts sort of said well we're not sure after going is whether near religious worship is prohibited or not and it doesn't matter because the group here is doing more than just mere religious worship and we're not going to separate it out in the ninth circuit there's been an willingness to separate it out in a different form of minutely in the school graduation cases and the student pamphlet but i don't think the the law court took that into consideration and thank you thank you very much we appreciate you are going to be very interesting very helpful thank you that will be submitted