“The City of Warren cannot allow” access to space by a group “intending to … discourage the practice of religion”

July 23, 2014

A letter from the James Fouts, Mayor of the City of Warren, Michigan, attached to the Complaint in a lawsuit filed challenging this policy (Marshall v. City of Warren (S.D. Mich. July 23, 2014):

April 15, 2014

Dear Mr. Marshall:

The City of Warren through the Downtown Development Authority has received your request to use space in the atrium. It is my understanding that you are affiliated with Freedom from Religion, a group that has objected to the Nativity Scene, the Prayer Station in the atrium and the Annual Day of Prayer in front of city hall.

All of these events are allowed because of the right to freedom of religion constitutional amendment. We cannot and will not restrict this right for any religion to use the atrium, as long as the activity is open to all religions.

Freedom from Religion is not a religion. It has no tenets, no place of worship and no congregation.

To my way of thinking, your group is strictly an anti-religion group intending to deprive all organized religions of their constitutional freedoms or at least discourage the practice of religion. The Citv of Warren cannot allow this.

Also, I believe it is your group’s intention to disrupt those who participate in the Prayer Station which would also be a violation of the freedom of religion amendment.

For these reasons, I cannot approve of your request.

Sincerely,

James R. Fouts
Mayor of Warren

This is blatantly unconstitutional — just as it violates the Free Speech Clause for the government to discriminate against religious opinions when it opens up a forum for private speakers (see Rosenberger v. Rector (1995)), so the government may not discriminate against irreligious opinions or antireligious opinions. Moreover, while the government doesn’t violate the Establishment Clause by setting up a forum that is open to speakers, whether religious or otherwise (again, see Rosenberger), it does violate the Establishment Clause by specially favoring religious speakers (see Texas Monthly, Inc. v. Bullock (1989)).

I expect a speedy defeat for the city, and a substantial sum in attorney fees that the city will have to pay the plaintiffs’ lawyers.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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