1. Read your library’s rental/use policy
Probably the most important piece of information you can seek out is a copy of your library’s policy on renting/using its facilities. It is important to look for language within that policy that states the purpose for which the library has been opened for public use. If the library is open for “cultural, civic, and educational purposes” or something similar, then it may be inappropriate to use that space for certain religious purposes, such as worship or proselytization.
It is also important to note if the library policy specifically excludes use for religious purposes or for religious worship. While not all activities conducted by a religious group are considered worship activities, it is easy for a religious group to impermissibly cross over from conduct allowed in a library to worship or proselytization, which may be banned.
Finally, check the library use policy to see if it bans other activities that occasionally take place at religious services such as requesting donations or imbibing alcohol. Some library use policies also limit the number of times per month/year a group may use library space. Many policies have strict penalties for breaking these rules, such as denial of future library use.
2. Determine the purpose for which the religious group is meeting
If a library has opened its doors to civic activities, it may still exclude groups that wish to use library space for non-civic activities, such as religious worship or proselytization. In reality, it can be difficult to distinguish between discussing a civic topic from a religious perspective, and worship. However, this is the line that many library use policies will draw.
If you have the time, you may wish to attend one of the meetings held by the religious group to determine if the group is using library space inappropriately. Most library use policies require that all groups meeting in a library keep their meetings open to the general public, as long as no one is overly disruptive to event proceedings.
3. Verify payment, if applicable
Many libraries require payment of rent or fees to cover maintenance/janitorial costs. A citizen of that area or state (and in many states anyone at all) may make an open records request to the library to verify that a religious group has made all requisite payments. If you believe that required payments have not been made, you may contact FFRF for further assistance.
If your library does not require payment for use of library space, perhaps it should. Library rental fees can be a source of income for towns struggling with thinly stretched budgets. Moreover, rental fees ensure that no taxpayer is forced to subsidize group activities with which they disagree. You may wish to present this issue at a city/town council meeting.
4. Contact FFRF
If you believe that a religious activity taking place in a public library is impermissible, send an e-mail, letter or fax to us describing the event taking place with contact information, including the name of the library. If possible, include a copy of your library’s use policy. We may, if appropriate, send a letter of complaint on your behalf, notifying your town/city of the potential church/state violation and describing what steps can be taken to ensure the preservation of the constitutionally designed the wall of separation between church and state.
STATE OF THE LAW: RELIGIOUS GROUPS RENTING PUBLIC LIBRARY SPACE
A library’s power to restrict access to its facilities is contingent upon the type of forum it has created. Determining forum can be difficult. Courts do not always agree on what factors to consider, and different parts of a library may be designated as different types of fora. The two important types of fora for analyzing library space are called the “designated public forum” and the “limited public forum.”
A court will find that a library has created a designated public forum if it has intentionally and expressly opened up its space “for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985). A governmental body wishing to regulate protected First Amendment speech in a designated public forum may place reasonable time, place, and manner restrictions on the speech, or it may adopt restrictions that are necessary and narrowly drawn to serve a compelling governmental interest. Cornelius, 473 U.S. at 800. These include such limitations as a restriction on alcoholic beverages, a limit on the number of meetings per month, and a ban on collecting donations.
A court will find that a government has created a limited public forum if its library has been reserved for certain groups or for the discussion of certain topics but is not otherwise open for public use. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001) (school facilities); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 392-93 (1993) (school facilities). A limited public forum, on the other hand, “allows less stringent requirements to be applied in regulating speech.” Good News Club, 533 U.S. at 106-07. Most often this means that the government may restrict access to a library based on such considerations as subject matter or speaker identity, so long as the restrictions are “reasonable in light of the purpose served by the forum and are viewpoint neutral.” Lamb’s Chapel, 508 U.S. at 392-93. Such restrictions may include a ban on worship services or proselytization. For a more complete background of Good News Club and Lamb’s Chapel, see our FAQ on Churches Renting Public Schools.
In short, if a court determines that library space has been intentionally opened up for free speech use by the general public, it is difficult for a government body to limit access to that space to nonreligious purposes. If however, the court finds that a library has only been opened up for certain types of speech, then a government body may limit library use to secular purposes.
Current Library Use Cases by Appeals Circuit
Ninth Circuit
The Ninth Circuit (which encompasses Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington) is the only circuit to rule directly on whether a government body can exclude groups from conducting religious worship services in public library space. The court held that a county’s policy to exclude religious worship services from its library meeting room was reasonable in light of the forum’s purpose, to ensure that the library was not transformed into an occasional house of worship. Faith Ctr. Church Evang. Minis. v. Glover, 480 F.3d 891, 910 (9th Cir. 2007). The court found the county had created a limited public forum when it drafted a library use policy that allowed “[n]on-profit and civic organizations, for-profit organizations, schools and governmental organizations” to use its library meeting room for “meetings, programs, or activities of educational, cultural or community interest.” Id. at 908. In a concurring opinion, Senior District Judge Lawrence Karlton laments the “sorry state” of current church/state law and notes that it would be preferable to uphold the policy, which prevents public subsidization of a religious organization’s prayer meetings, by appealing to the plain meaning of the Establishment Clause.
On remand, the district court found that the library’s specific policy regarding worship services violated the Establishment Clause since it would require unacceptable entanglement between government and religion in order to determine which practices constituted worship. Faith Ctr. Church Evang. Minis. v. Glover, 2009 WL 1765974 *7-8 (N.D. Cal. 2009). This decision is not part of the Appeals Court ruling and is therefore not binding law within the Ninth Circuit.
Seventh Circuit
The Seventh Circuit (which encompasses Illinois, Indiana, and Wisconsin) has recognized that “the more selective the government is in restricting access to its property, the more likely that property will be considered a nonpublic [or limited public] forum.” DeBoer v. Vill. of Oak Park, 267 F.3d 558, 566 (7th Cir. 2001). This sentiment is in line with the majority of Circuits, which have held that libraries are limited public fora. However, a year before the DeBoer decision, a district court within the Seventh Circuit ruled that when a library opened its meeting room to the public “for a range of expressive purposes” that it “‘opened its doors wide enough’ to have created a designated public forum for nonprofit organizations.” Pfeifer v. City of West Allis, 91 F. Supp. 2d 1253, 1266 (E.D.Wis. 2000) (emphasis added) (holding that Plaintiff, founder of nonprofit Christian instruction organization, was allowed to use library meeting room to present program on creationism). While this decision does not create binding precedent within the Seventh Circuit, when viewed in conjunction with DeBoer, the decision seems to suggest that the Seventh Circuit may still be undecided on how it approaches forum questions in relation to libraries.
Fifth Circuit
The Fifth Circuit (which encompasses Louisiana, Mississippi, and Texas) has held that a library created a designated public forum in its auditorium when that space was “open for use of groups or organizations of a civic, cultural or educational character,” even though the library had a policy prohibiting “meetings for social, political, partisan or religious purposes.” Concerned Women for Am. v. Lafayette County, 883 F.2d 32, 33-34 (5th Cir. 1989) (holding as constitutional religious group’s use of auditorium in the absence of empirical evidence that religious groups would dominate auditorium use, causing the advancement of religion to become the forum’s “primary effect”). The appeals court agreed with the district court that the library was a designated public forum because in practice, the library did not limit access to the auditorium to those groups that furthered the library’s educational mission. Concerned Women for Am. v. Lafayette County, 699 F. Supp. 95, 97-98 (N.D. Miss. 1988). Had the library consistently limited use of its auditorium to educational groups, presumably the space would have remained a limited public forum, resulting in a different analysis by the court. This decision represents the Fifth Circuit’s only analysis directly relating to religious use of library space.
Within the Sixth Circuit
Citizens for Cmty. Values v. Upper Arlington Pub. Library Bd. of Trs., 2008 WL 3843579 (S.D. Ohio, 2008) is a district court decision holding that a library policy cannot attempt to exclude “inherent elements of a religious service” as this would impermissibly entangle government and religion. It cites the Ninth Circuit’s decision in Faith Center as noting that it would be “challenging” for a policy to permissibly distinguish between educational activities and a pure worship service. This decision does not create binding precedent within the Sixth Circuit (which encompasses Kentucky, Michigan, Ohio, and Tennessee).
By Sam Grover, FFRF’s Legal Intern for Summer 2010
Last updated August 5, 2010
